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Intellectual Property
Senate May Debate Patent Legislation Next Month
by Andrew Noyes
The Senate leadership in mid-February may bring to the floor a bill that would make sweeping changes to the U.S. patent system, congressional aides and industry stakeholders said this week as lawmakers returned to Washington.
An amended version of the legislation, which was introduced by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., could get a Senate vote followed by a quick House vote on an identical bill, Foley & Lardner attorney Harold Wegner said in a Tuesday e-mail. That tactic would bypass the need for a conference committee to resolve House and Senate differences.
But achieving the 60 Senate votes required to limit debate on controversial bills is a concern. "This would in all likelihood lead to a procedural death to the patent reform bill," Wegner said.
A Judiciary Committee staffer said "it's too soon to tell" how the bill will progress, but the February timeframe is a good guess. The aide said that Senate Majority Leader Harry Reid, D-Nev., considers the measure, S.1145, a high priority, but other efforts could get in the way, including a debate over foreign intelligence changes.
Coalition for Patent Fairness spokesman Steve Elmendorf called the Senate schedule a "wildcard," noting that a fast-tracked economic stimulus package also could delay consideration of the patent bill. His group, whose members include Apple Inc., Cisco Systems, Dell, Hewlett-Packard, Oracle and others, is a leading voice for a patent overhaul.
Sidestepping a conference committee "would be great [because] the bill would be one step closer to passage," the staffer said. "But Leahy has been talking about a conference from the get-go," so that is what is expected.
Elmendorf's coalition sent a letter of support signed by 163 businesses from an array of industries to Reid and Minority Leader Mitch McConnell, R-Ky., on Tuesday urging them to get the legislation to the floor "without delay."
The bill "will stimulate American innovation, growth and competitiveness by restoring balance to our patent system," the group said. The measure, which has faced pushback from the pharmaceutical and biotechnology sectors as well as patent licensees, is the product of years of deliberation, compromise and meetings with various interests, the letter said.
But entrepreneur Ronald Riley said he believes the inventor community is having trouble being heard on Capitol Hill. The bill "addresses the wrong problem" by provoking "fundamental change to the patent system instead of fixing the Patent and Trademark Office," said Riley, founder of the Professional Inventors Alliance.
While the legislation does focus on various issues of patent examination, Riley said the real roadblock is "incompetent management" at the agency. Narrowing the scope of patents is not the right way to fix the PTO's application backlog, he said.
Since the Senate Judiciary Committee's approval of the legislation a half-year ago, talks have involved an abundance of divergent stakeholders, the Senate aide said.
The Innovation Alliance, which represents firms that oppose the legislation, issued a statement saying that unless "significant work" occurs soon, the bill "will not be ready for the floor during this work period." Senators should "be concerned about the merits of taking up a bill that, in its current form, is an innovation investment deterrence package," the group said.
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Security
Cheney Urges Lawmakers To Pass Spying Bill
by Chris Strohm
Vice President Dick Cheney on Wednesday urged Congress to pass legislation that would permanently overhaul a surveillance law and shield telecommunications companies from lawsuits for helping the Bush administration spy on U.S. citizens without court warrants.
Cheney made his remarks in a short speech at the conservative Heritage Foundation just as the Senate was moving toward resuming debate on legislation to overhaul the Foreign Intelligence Surveillance Act.
Although the White House had previously listed several provisions it wants in FISA legislation, Cheney only identified two issues. "Actions by Congress sometimes have unexpected consequences," he said. "But a failure to enact a permanent FISA update with liability protections would have predictable and serious consequences. Our ability to monitor al Qaeda terrorists would begin to degrade, and that we simply cannot tolerate."
Cheney noted that a temporary law making changes to FISA expires Feb. 1. "That leaves Congress only nine days in which to act to keep the intelligence gap closed," he said. "And with the day of reckoning so close at hand we're reminding Congress that they must act now to modernize FISA."
Senate Democratic aides noted, however, that the temporary law allows surveillance operations to continue for a year after they are authorized, even if the law expires. That means, one aide said, the administration could issue new surveillance orders before Feb. 1 that would last another year.
The Senate is expected to begin debate on FISA legislation on Thursday. The chamber will take up a bill approved by the Intelligence Committee, while a competing bill approved by the Judiciary Committee is expected to be offered as an amendment.
Cheney said the White House does not want Congress to put a time limit in final legislation. The Intelligence measure would expire in six years, the Judiciary measure in four years.
"Our administration feels strongly that an updated FISA law should be made permanent, not merely extended again with another sunset provision," Cheney said. "There is no sound reason to pass critical legislation like the Protect America Act and slap an expiration date on it."
Cheney said final legislation also must give legal protections to private companies that helped the administration's spying activities. The Intelligence measure would give retroactive legal immunity to telecom carriers that helped the administration spy on U.S. citizens without warrants dating back to 2001; the Judiciary measure would not provide any protections.
"One might even suppose that, without liability protection for past activity to aid the government, the private sector might be extremely reluctant to comply with future requests from the government, even though the requests are necessary to protect American lives," Cheney said.
The Center for Democracy and Technology said the issue of legal immunity is not the most important matter. The group said the most important issues are the extent to which legislation would give the secret FISA court authority to approve and supervise surveillance activities, and the standard under which the court can require the government to seek a court order when it intercepts communications of U.S. residents.
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E-Government
Lawmakers Favor Outside Access To Legislative Data
by Aliya Sternstein
The legislative process could become a lot more exciting if lawmakers get their way in freeing the data inside the Library of Congress' legislative Internet database so that independent Web sites can repackage the information.
In November, the House Administration Committee asked the library to explore solutions for supplying the public with raw legislative information from the database, dubbed THOMAS, committee spokesman Kyle Anderson said on Wednesday.
"The library is looking into the resources that would be required to make this data available," spokesman Guy Lamolinara confirmed. A report to the committee is expected during the first part of the calendar year.
"By providing an open legislative database to the public," sites could "better tap into the knowledge of the American people," said Democratic Rep. Mike Honda of California, who along with Rep. Zoe Lofgren, D-Calif., has made the same request of the library.
Web sites like the online encyclopedia Wikipedia that anyone can modify, as well as the Linux computer-operating system, whose underlying code can be read and altered, demonstrate the benefits of open systems, Honda added.
At a recent hearing, Senate Homeland Security and Governmental Affairs Committee Chairman Joseph Lieberman, I-Conn., also recommended that the library present Senate votes in a structured format so citizens can have a better look at the records of their elected officials.
Rob Pierson, Honda's online communications director and president of the House System Administrators Association, said that currently, Honda's site must rely on links to show visitors his most recent votes and sponsored bills.
THOMAS' data would let his office display the information on Honda's own site and allow bloggers to embed automatic notifications of updates, known as "trackbacks," to bills sponsored by Honda, Pierson said. Access to the raw data "would encourage an explosion of innovative Web sites."
One beneficiary of the proposal may be linguistics graduate student Joshua Tauberer, who has already launched GovTrack.us, a noncommercial Web site that compiles the status of legislation and voting records from THOMAS.
If the data were made available as a bulk download or delivered in slices, it would fill some of the gaps on GovTrack, Tauberer said. Currently, the site cannot reliably obtain a daily list of the bills that have been updated, and some bills show up on GovTrack with outdated information.
The data is important because no single view into the workings of Congress is best for everyone, he added. "Reporters, kids and citizens at large want to see Congress from different angles and want to see different connections exposed between votes, legislation, money, earmarks, etc."
But the change likely would affect paid-subscription sites that charge for legislative updates. Their "business model will need to evolve to compete with citizen technologists," Sunlight Foundation Program Director John Wonderlich said. Companies may need to add more substantial analysis in order to compete with free services, he added.
There also may be resistance from congressional administrators, who "are often wary of taking on new departmental responsibilities if they are not accompanied by statutory justification or appropriations," Wonderlich said.
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E-Government
Maryland Governor Seeks New Voting Machines
by Michael Martinez
Maryland Gov. Martin O'Malley is on a mission to secure funding for his state's plan to ditch touch-screen voting machines.
O'Malley, a Democrat, signed legislation last year moving the state to a paper-based system. But many feared the state's budget woes would make it difficult for lawmakers to find the money needed to acquire new machines.
The budget proposal O'Malley presented the General Assembly this month includes $6.8 million to buy optical-scan equipment. Maryland was one of the first states to embrace touch screens after the 2000 presidential election and has used Diebold voting machines statewide since 2002.
But the reliability of the touch-screen system has come into question in recent Maryland contests. Technical glitches in 2006 disrupted primaries in Anne Arundel, Baltimore, Montgomery and Prince George's counties, prompting the Legislature to consider paper trails the following year.
Kevin Zeese, the executive director of the advocacy group TrueVoteMD.org, said the plan to move to paper-based machines was jeopardized by the state's budget troubles. O'Malley called a special legislative session in the fall to address the fiscal problems and promised his budget for 2008 would be relatively slim.
Zeese said he is relieved that O'Malley's latest budget proposal included funds for e-voting upgrades. "The money the governor is asking for is more than enough to carry us through the transition," Zeese said. "But we still need to make sure it gets through this legislative session."
Maryland still plans to use its touch-screen system for the 2008 elections, which will feature a rematch of one of the disputed 2006 contests. Democratic congressional candidate Donna Edwards sued that year over voting irregularities reported in her primary loss to Rep. Albert Wynn. Edwards, whose candidacy has been energized by liberal bloggers and online activists, is set to challenge Wynn again in a primary next month.
In Congress, Rep. Rush Holt, D-N.J., introduced legislation, H.R. 5036, last week to help states and counties install paper-based machines in time for November. His bill would authorize funding for jurisdictions that want to upgrade their systems and conduct regular, random audits in the fall. Wynn is a co-sponsor of a previous bill Holt introduced last year that would mandate the use of voting machines that produce verifiable, paper audit trails.
Zeese said Holt's latest proposal is a good one, particularly for states and counties that have resisted efforts to require them to move to paper-based machines. But he said he is confident there is enough of a groundswell in Maryland to move forward without the federal government.
"Maryland's a very important state because it was one of the very first to go paperless," Zeese said. "What's going here is a big blow to touch-screen voting."
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Intellectual Property
'Collaborative Innovation' Is On The World Agenda
by Andrew Noyes
An annual meeting of top business executives, political leaders, media and nongovernmental organizations from around the world began Wednesday in Davos, Switzerland, with calls from the World Economic Forum's co-chairmen to exercise "the power of collaborative innovation."
The weeklong conference, which draws more than 2,500 participants from 88 countries, is focused on meeting the key challenges of economic instability, climate change and equitable growth -- with technology as a prominent theme.
AT&T, Cisco Systems, Google, Intel, Lenovo and Microsoft are among the forum's most active members from the technology arena. The group has 1,000 corporate partners whose representatives comprise about 60 percent of the yearly assembly's participants.
Several sessions will explore the impact that social-networking Web sites, mobile computing and various Internet-fueled advances have had on cultures around the world. Others will examine how technology has helped facilitate extremism, terrorism, and cyber-spying and virtual attacks on public- and private-sector networks.
In a Thursday keynote, Microsoft founder Bill Gates will describe a vision for how the world's business community can partner with governments and nonprofits to help reduce inequity. The technology-executive-turned-philanthropist will illustrate how global leaders are creating markets and expanding access to existing ones by tapping "creative capitalism" to improve lives, according to a company news release.
Former British Prime Minister Tony Blair told attendees during an introductory panel, which was webcast, that "collaboration and innovation" can help solve "big global challenges." The fact that the summit "takes place with a backdrop of insecurity and uncertainty ... make the issues of collaboration and innovation all the more important."
China Mobile Communications Chairman Wang Jianzhou added that the theme is a cornerstone of all modern industries and businesses. "Companies and countries need to take social responsibility and pay attention to climate change and other global challenges," he said.
Historian and former Secretary of State Henry Kissinger emphasized how attention must be paid to the world "structural changes," as well as to the emergence of issues like climate change, environmental protection and energy efficiency that "can only be dealt with on a global basis."
This is "not a great year" for the United States with respect to "far-sighted and imaginative economic policies," Kissinger said. He added that he fears that more "protectionist talk" will surface. World trade discussions must occur, and the Bush administration "will do the best it can and the new administration will take a broad view of the issue," he said.
On the high-tech front, the forum partnered with the video-sharing site YouTube to launch "The Davos Question." YouTube users have been asked to respond to the query: "What key action do you think countries, companies or individuals should take to make the world a better place in 2008?"
Less than a week after launching the page, the question was YouTube's 30th most-watched video, with almost a half-million viewers. The forum also has posted more than 450 clips from its video archives on YouTube and created a page on the popular social-networking site Facebook.
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Nanotechnology
More Focus On Preventing Nanotech Risks Is Urged
by Heather Greenfield
While there is much talk about studying the risks of nanotechnology, there is not as much action to prevent them.
At the first Congressional Nanotechnology Caucus meeting of the year on Capitol Hill, the director of the Project on Emerging Nanotechnologies at the Woodrow Wilson Center offered his advice on how to change the situation.
David Rejeski told congressional staffers and nanotech investors Tuesday afternoon that the problem with policies that do not try to engineer out the health and environmental problems with nanotechnology in advance is that it will cost even more to address such issues retroactively.
He warned that the costs to manage risks will rise -- "and that will come out of somewhere." He said the result could be to cannibalize the money that could be spent on nanotech innovation.
There has been much debate about how much is spent studying the health and environmental impacts of nanotechnology, which refers to the manipulation of tiny particles one-hundredth the width of a human hair. Among the concerns are that the particles can be inhaled or get into the water supply. Nano-engineered products are now sold in everything from face cream to car tires.
The National Nanotech Initiative has spent $1.4 billion for research and development projects spread across entities like the Defense Department, National Institutes of Health and National Science Foundation.
The amount spent on researching health and environmental risks varies from 1 percent to 4 percent of the budget, depending on who's counting. Some say the number should be more like 5 percent to 10 percent, given that a publicized accident or health problem could create a backlash that could seriously impact the nanotech industry later.
Rejeski offered a three-step prescription for taking a different tact to studying health and environmental impacts that would yield quicker results than the current model of peer-reviewed research at universities.
First, he recommended creating an environmental equivalent to the Defense Advanced Research Projects Agency, the Defense Department research arm launched in response to the Russian space satellite Sputnik and best known for creating the Internet.
Rejeski said an environmental DARPA should cut across multiple disciplines and agencies. He said it could be effective with as few as 10 to 15 staff members, and he estimated it would cost $30 million a year.
Second, he said he would like to see an environmentally friendly venture-capital fund for nanotechnology. In his vision, the government would pay $20 million and the private sector would match that money to help green nanotech ideas develop.
Finally, Rejeski recommended the creation of a nanotech engineering award, much like the $10 million Ansari X Prize offered in 1996 to build a private spaceship or the current $30 million Google Lunar X-Prize to land a robot on the surface of the moon and return one gigabyte of high-resolution video. William Pomerantz, director of space projects at the X-Prize Foundation, said the organization already has received 500 requests for registration for that award.
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Intellectual Property
Lawmakers Jump To Defense Of Hollywood Writers
by Andrew Noyes
Striking members of the Writers Guild of America brought their battle with movie and television producers to Capitol Hill on Wednesday for a discussion with lawmakers and congressional aides about the work stoppage that began almost three months ago.
The writers went on strike Nov. 5 over union members' share of potential profits from programming that is increasingly being distributed via the Internet and other new media. Negotiations with the Alliance of Motion Picture and Television Producers are pending.
Informal discussions were slated to begin Wednesday "to determine if there is a basis for both parties to return to formal negotiations," according to a joint statement. Talks halted in December, but the Directors Guild of America reached a deal with producers earlier this month.
Rep. Jerrold Nadler, D-N.Y., and several other lawmakers hosted the conversation with the head of the guild's East Coast operation and writers from Comedy Central's "The Colbert Report" and "The Daily Show," and a former writer for NBC's "The West Wing."
California Democrat Diane Watson, who chairs the Congressional Entertainment Caucus, said her panel is planning a briefing with stakeholders for early February.
Nadler said writers "have yet to be offered an acceptable deal" from the studios, which made $95 billion in 2007. A writer's average income is about $62,000, which is "not exactly the salary one would expect for those that provide the valuable content that keeps America entertained," he said.
As the entertainment industry employs new technologies in response to consumer demands to view "what they want when they want it," the union is asking that writers not get left behind, Nadler said.
Rep. Anthony Weiner, a Democrat whose New York district houses a number of production houses, said he wants the studios to "make a lot of money and do well [and] still share a little of that success with those that help make it work." Illinois Democrat Jan Schakowsky said writers are "the wizards behind the curtain" and "engines that keep the shows going."
Tennessee Republican Marsha Blackburn told Technology Daily recently that when the contracts were crafted, the parties "never imagined there would be the distribution outlets there are now."
She added, "Writers are creating this commodity. If they were creating a widget, or brake pad or medical device, no one would question that compensation."
Alliance officials could not speak on the record due to a news blackout preceding the potential upcoming talks, but a studio source close to the negotiations said, "There are a lot of offers on the table -- very fair offers."
Guild members provided some comic relief at the event by staging a fake debate between themselves and "representatives" of the alliance. Former White House Press Secretary Dee Dee Myers moderated.
"The average writer makes more than a volunteer firefighter, volunteer crossing guard and a volunteer -- combined," one so-called alliance official argued. The studios have offered a deal that is "fair-ish and reasonable-esque," he said. "Shut up and get back to work or we'll replace you all with American Gladiators."
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Wired In Washington
Congressional Scrutiny May Force FCC To Behave
by David Hatch
Attention journalists, lawmakers, lobbyists and watchdogs: If you need assistance from the FCC, now is the time to ask. That's because the agency is under the glare of a federal investigation, with the powerful House Energy and Commerce Committee poised to scrutinize everything from procedures to staff e-mail.
And that means one thing: Everyone from Chairman Kevin Martin on down will be on their best behavior for the duration of the inquiry. From an FCC official's perspective, why give anyone an excuse to give government investigators more ammunition, right?
Much of the scrutiny is aimed at the chairman, including allegations that he manipulated the regulatory process to push through a plan last month permitting newspaper-broadcast combinations in major markets. The change was backed by his two Republican colleagues but opposed by the two Democratic members, as well as a bipartisan group of lawmakers.
On Jan. 8, House members formally notified the agency it is under review and instructed Martin to inform personnel that they are protected by federal whistleblower laws and should not destroy electronic records. Seemingly overnight, an FCC notorious for backroom deals, calculated media leaks, 11th-hour negotiations and protecting corporate interests is promoting transparency and consumer protection.
FCC meetings routinely delayed a dozen hours now start on time. And journalists on Martin's do-not-call list suddenly have more face time with the nation's most powerful communications regulator, as evidenced by his rare press briefing Jan. 15 just to chat with reporters.
"This is a big deal because of who's doing it, and the track record," said Andrew Schwartzman, president and CEO of the public-interest law firm Media Access Project, underscoring the legendary reputation of Energy and Commerce Chairman John Dingell, D-Mich., as an aggressive investigator.
The inquiry is backed by panel ranking Republican Joe Barton of Texas and the leaders of the Oversight and Investigations Subcommittee, Chairman Bart Stupak, D-Mich., and ranking member John Shimkus, R-Ill.
Some observers said they think the Democrats are focusing on oversight because they can't overcome gridlock stalling communications legislation. They also raised doubts about the impact on Martin.
"I don't know that they've got the slightest allegation of wrongdoing here. None," said Henry Geller, who served as the FCC's general counsel from 1964 to 1970 under chairmen from both parties. He sees the developments as part of a power struggle between Dingell and Martin.
With Martin expected to leave when a new president takes office next January, any effect on him would be limited to his remaining year.
Nevertheless, FCC watchers agree that the extra scrutiny might take a toll. "This can slow down Martin and can make him think twice," Schwartzman said. "Dingell is capable of making life miserable for an FCC chairman," he said, noting that the lawmaker once tried to restrict the business travel of Democratic Chairman Reed Hundt.
Paul Gallant, a communications analyst with the Stanford Washington Research Group, described the investigation as a distraction that would "complicate the FCC's game plan for 2008." It also might spur a broader FCC revamping, an idea gaining traction among industry executives and lawmakers.
Asked about the inquiry at last week's briefing, Martin insisted his actions were consistent with those of previous chairmen. Despite accusations that he sought to limit public input on loosening the media rules and sidestep normal FCC procedures, Martin said the agency conducted a fair and open-minded process.
Lest anyone accuse the Democrats of playing politics, they've managed to insulate themselves from such criticism by bringing Republicans onboard. Barton and Shimkus, however, are likely to draw different conclusions than the majority. Both lawmakers applauded Martin's approach to media ownership while criticizing his failed effort to tighten cable regulation, which Democrats supported.
The FCC is no stranger to congressional investigations. In the late 1990s, Barton, then head of the oversight panel, examined the FCC's relocation in Washington, including allegations that the developer paid an attorney with close ties to the Clinton administration $1 million to sweeten the deal. Democrats ran the agency at the time. Despite the heated accusations, the inquiry fizzled.
The heyday for congressional scrutiny spanned from the 1940s to the 1960s, when investigations focused on eliminating payola involving broadcast licenses and radio airplay, as well as the famous television quiz-show scandal, sources said.
Geller recounts the tale of FCC member Richard Mack. The Democrat allegedly accepted monetary gifts in the 1950s from a Florida friend, Thurman Whiteside, in exchange for voting to award a Miami TV license to an airline subsidiary. Geller said: "Mack resigned and ended up being alone and drinking himself to death. Whiteside committed suicide -- blew his brains out."
Happy New Year, Chairman Martin.
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Today's Feature:
International Roundup
In releasing new export-control policies, the Bush administration on Tuesday said it is committed to ensuring that the U.S. export-control system meets the challenges of the times by encouraging U.S. economic and technological competitiveness while also protecting national security.
Every Wednesday, read the International Roundup by Winter Casey.
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E-briefs
Crime: Andrew McKelvey, the founder and former chief executive of Monster Worldwide, will relinquish much of his voting stake in the online job-listings company and pay back more than $8 million as part of a settlement into claims that he improperly backdated stock options to employees. AP reports that Monster announced its settlement with McKelvey on Wednesday, the same day he settled separate charges over the options-backdating scheme with the Securities and Exchange Commission and federal prosecutors. The SEC settlement calls for him to pay a separate penalty of $276,000 and bars him from serving as a director or officer of a public company. McKelvey departed Monster in 2006 amid questions about his role in the backdating scandal. The company also has fired its former general counsel, Myron Olesnyckyj, who was largely responsible for administering stock options and later pled guilty to securities fraud.
Intellectual Property: The Czech Republic has been added to the American government's list of countries that need to improve intellectual property protection and enforcement, U.S. Trade Representative Susan Schwab said Tuesday. The agency releases its "Special 301" report on global IP protection each April but sometimes makes additions to the register. Schwab said she remains concerned with "the continuing lack of effective enforcement measures against traders openly selling pirated and counterfeit goods in the notorious border markets" of the Central European country. In a statement, Neil Turkewitz, executive vice president of the Recording Industry Association of America, thanked Schwab for her "continued dedication to enhancing the fight against global piracy." He also slammed the Czech government for its failure to "reign in the blatant lawlessness" there. Turkewitz said he hopes the USTR action "will serve as a wake-up call that these illegal practices can no longer be tolerated."
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