OVERNIGHT TECH: SCOTUS to hear patent cases

THE LEDE: The Supreme Court will hear oral arguments in two patent cases on Wednesday. Those cases — Octane Fitness v. Icon Health and Fitness and Highmark Inc. v. Allcare Health Management Systems — focus on “fee-shifting,” or a court’s decision to force the losing party of a patent case to pay the winning party’s legal fees.

In Octane, a fitness equipment company that defeated a patent infringement lawsuit says the federal court’s fee-shifting standard is too high because it requires the defendant to prove not only that the infringement claims were baseless, but also that the party making the claims knew they were baseless.

In Highmark, a health insurance company that defeated a patent infringement lawsuit over healthcare software says the federal court should have deferred to a lower court that ordered the company bringing the lawsuit to pay Highmark Inc.’s legal fees. Instead, the federal court ruled that the company bringing the suit did not know its infringement claims were baseless and should not have to pay Highmark Inc.’s fees.

The Supreme Court’s decision to hear oral arguments in these cases comes as Congress considers patent litigation reforms aimed at curbing “patent troll” activity, or when a company brings or threatens to bring patent infringement lawsuits based on broad and vague patents with the goal of getting companies and individuals to settle to avoid going to court.

Late last year, the House passed the Innovation Act, authored by House Judiciary Committee Chairman Bob GoodlatteRobert (Bob) William GoodlatteIG poised to reignite war over FBI’s Clinton case McCain, Coons immigration bill sparks Trump backlash What I've learned as a native-born 'dreamer': We are a nation of assimilated immigrants MORE (R-Va.), and the Senate is considering a companion bill from Senate Judiciary Committee Chairman Patrick LeahyPatrick Joseph LeahyCoalition of 44 groups calls for passage of drug pricing bill A pro-science approach to Yucca Mountain appropriations Senate Dems: Trump making negotiations 'impossible' MORE (D-Vt.). Leahy’s bill does not currently include a fee-shifting provision, but senators on his committee, including Sens. John CornynJohn CornynDems confront Kelly after he calls some immigrants 'lazy' McConnell: 'Whoever gets to 60 wins' on immigration GOP senators turning Trump immigration framework into legislation MORE (R-Texas) and Orrin HatchOrrin Grant HatchOvernight Tech: Uber exec says 'no justification' for covering up hack | Apple considers battery rebates | Regulators talk bitcoin | SpaceX launches world's most powerful rocket Overnight Cybersecurity: Tillerson proposes new cyber bureau at State | Senate bill would clarify cross-border data rules | Uber exec says 'no justification' for covering up breach Hatch introduces bipartisan bill to clarify cross-border data policies MORE (R-Utah), hope to attach their fee-shifting provisions to Leahy’s bill.

While Octane and Highmark deal with more narrow fee-shifting concerns than those being considered by Congress, patent reform skeptics on Capitol Hill have called on Leahy to wait until the Supreme Court weighs in on the issue before moving forward.

Senate to talk wireless: The Senate Judiciary Antitrust subcommittee will examine competition in the wireless market at a hearing Wednesday. The hearing will include testimony from Verizon, T-Mobile and C Spire executives. Those companies are currently waiting to see how the Federal Communications Commission (FCC) will run its incentive spectrum auction, which will purchase airwaves from broadcasters and resell those airwaves to spectrum-hungry wireless companies.

In a statement, subcommittee Chairwoman Amy KlobucharAmy Jean KlobucharOvernight Regulation: EPA sued over water rule delay | House passes bill to ease ObamaCare calorie rule | Regulators talk bitcoin | Patient groups oppose FDA 'right to try' bill Overnight Finance: Senators near two-year budget deal | Trump would 'love to see a shutdown' over immigration | Dow closes nearly 600 points higher after volatile day | Trade deficit at highest level since 2008 | Pawlenty leaving Wall Street group Dem senator presses FTC to ramp up Equifax hack probe MORE (D-Minn.) said the hearing will be “an important opportunity to discuss the state of competition in the wireless industry today and going forward.”

“With more and more Americans relying on cell phones to conduct their everyday lives, we need to ensure that consumers benefit from a competitive wireless marketplace,” she said.

Klobuchar also said she intends to discuss her cellphone “kill switch” bill, which aims to prevent cellphone theft.

FCC pushes back March meeting: The FCC said Tuesday that it has rescheduled its March open meeting to better prepare for spectrum-related items on the agenda. The meeting was originally scheduled for March 19 but will be held March 31.

Tech companies press immigration: Facebook, Google, Apple and other major tech companies are supporting a push from the country’s largest business lobby to get Speaker John BoehnerJohn Andrew BoehnerLobbying World Freedom Caucus wants budget reforms attached to debt limit increase Trey Gowdy announces retirement from Congress MORE (R-Ohio) to act on immigration reform. Tech firms were among the more than 600 companies and trade groups that signed on to a Chamber of Commerce letter on Tuesday.

“Failure to act is not an option,” the groups wrote. “We cannot afford to be content and watch a dysfunctional immigration system work against our overall national interest.”

The Senate passed a comprehensive immigration reform bill last summer, but the House has been hesitant to follow suit. Earlier this year, BoehnerJohn Andrew BoehnerLobbying World Freedom Caucus wants budget reforms attached to debt limit increase Trey Gowdy announces retirement from Congress MORE said there was “widespread doubt that the administration can be trusted to enforce our law, and it’s going to be difficult to move any immigration legislation until that changes.”

Goodlatte: Congress looking out for broadcasters: House Judiciary Committee Chairman Bob Goodlatte (R-Va.) on Tuesday told broadcasters from across the country that his committee “continues to take the lead on important issues” for the industry. In remarks at the National Association of Broadcasters state leadership conference, Goodlatte laid out the committee’s “comprehensive review of U.S. copyright law,” plans to tackle music licensing laws and the retransmission of broadcast content over cable and satellite.

Goodlatte also told the broadcasters that he relies solely on broadcast television at his Washington home. “I do employ one of those intermediaries down in my home in Virginia but here I’m just absolutely amazed by the number of broadcast stations I can pick up that with that little antenna,” he said.

Johnson, Pai call for school broadband reform: Sen. Ron JohnsonRonald (Ron) Harold Johnson40 patient advocacy groups oppose 'right to try' drug bill GOP eyes changes to 'right to try' bill Hundreds sign on to letter opposing 'right to try' drug bill MORE (R-Wis.) and Ajit Pai, a Republican commissioner on the FCC, want to change the federal program that puts broadband Internet in schools and libraries. The E-Rate program, which President Obama has made a pledge to expand to cover nearly every student in the country, is broken, they wrote in an op-ed in the Milwaukee Journal Sentinel, and should be swapped out for a more “student-centered” approach.

Schools, they wrote, have an incentive to “gold-plate” their networks under the current program, because they know that the federal government is willing to shell out money. They also complained that the program funds outdated technologies like pagers and allows faculty to buy services that don’t directly help students learn. Instead of the current system, the officials wrote that money should be handed out on a per-student basis, and schools should be transparent about the way they use the money.

TV stations fete Rockefeller: Senate Commerce Committee Chairman Jay RockefellerJohn (Jay) Davison RockefellerOvernight Tech: Trump nominates Dem to FCC | Facebook pulls suspected baseball gunman's pages | Uber board member resigns after sexist comment Trump nominates former FCC Dem for another term Obama to preserve torture report in presidential papers MORE (D-W.Va.) is being honored as a "Champion of Public Broadcasting" by the Association of Public Television Stations. The trade group said on Tuesday that Rockefeller has been a “steadfast supporter” of public TV during his tenure atop the powerful Senate panel.



At 10:00 a.m., the Senate Judiciary subcommittee will probe competition in the wireless industry.

At the same time in the House, the Oversight and Government Reform Committee will hold a hearing on “limitless surveillance at the FDA” featuring the chief operating officer of the food and drug regulator.

Homeland Security Secretary Jeh Johnson is testifying in the House Homeland Security Committee on his “vision for the future.”



U.S. officials are monitoring the apparent collapse of a major bitcoin exchange, which may have resulted in the loss of millions of dollars.

The Commerce Department’s privacy talks about facial recognition technology will not focus on the U.S. government’s use of that technology, agency officials said. 

A national effort to crack down on Internet piracy through a "six strikes" system is seeing success, according to the program’s director. 

Lawmakers on the House Energy and Commerce Committee are working on a bill that would permanently block the FCC from conducting a study of how journalists do their job. 

House Intelligence Committee Chairman Mike Rogers (R-Mich.) said he doesn’t think his panel would support a bill that would give private companies the National Security Agency’s database of phone records.


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