Developments of Note

The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act of 2003), passed both houses of Congress on Dec. 8, and the President signed it on Dec. 16. The legislation, while generally permitting unsolicited commercial e-mail, prohibits certain common spamming activities such as the use of a false return address and the use of certain false, misleading or deceptive information when sending electronic mail. The statute prohibits the use of “dictionary attacks” and electronic harvests of e-mail addresses, and requires certain electronic mail to include “opt-out” information. Significantly, the statute pre-empts state anti-spam laws, except to the extent that such statues prohibit falsity or deception in commercial electronic-mail messages.

H.R. 2622, the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), was signed into law on Dec. 4. The legislation, which reauthorizes the Fair Credit Reporting Act, also amends that Act to add new provisions aimed at combating identity theft. The legislation amends the pre-emption provisions of the Fair Credit Reporting Act concerning certain state laws that provide similar protections. The legislation provides new remedies for consumers seeking to avoid becoming identity-theft victims.

The federal moratorium on state Internet access taxes expired on Oct. 31 without Congressional action to extend the statute's effective date. Congress failed to agree on competing legislation that would have extended the moratorium. The House of Representatives voted in favor of a permanent ban, but the legislation stalled in the Senate. No further legislative action to extend the ban is expected until this month.

On Oct. 30, the U.S. Patent and Trademark Office (USPTO) initiated a re-examination of the Web-browser patent that gave rise to a $521 million infringement verdict against Microsoft Corp. in August. Eolas' U.S. Patent No. 5,838,906 (the '906 patent) describes a method for embedding interactive applications such as plug-ins or applets in Web pages, which can then be called up by Web browsers such as Microsoft's Internet Explorer (IE). In August, a federal jury decided that IE infringed on the '906 patent, and returned a $521 million verdict against Microsoft. Following the verdict, the World Wide Web Consortium and others in the Internet community urged that prior art raised questions about the validity of the '906 patent. They also asserted that Microsoft's proposed modifications to IE in order to avoid future infringement “would render millions of Web pages and many products of independent software developers incompatible.” The USPTO directed the re-examination after it found that the prior art raised a “substantial new question of patentability.”

Anti-Spam Legislation is Signed Into Law

The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act of 2003), passed both houses of Congress on Dec. 8, and the President signed it on Dec. 16. The legislation, while generally permitting unsolicited commercial e-mail, prohibits certain common spamming activities such as the use of a false return address and the use of certain false, misleading or deceptive information when sending electronic mail. The statute prohibits the use of “dictionary attacks” and electronic harvests of e-mail addresses, and requires certain electronic mail to include “opt-out” information. Significantly, the statute pre-empts state anti-spam laws, except to the extent that such statues prohibit falsity or deception in commercial electronic-mail messages.

H.R. 2622, the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), was signed into law on Dec. 4. The legislation, which reauthorizes the Fair Credit Reporting Act, also amends that Act to add new provisions aimed at combating identity theft. The legislation amends the pre-emption provisions of the Fair Credit Reporting Act concerning certain state laws that provide similar protections. The legislation provides new remedies for consumers seeking to avoid becoming identity-theft victims.

The federal moratorium on state Internet access taxes expired on Oct. 31 without Congressional action to extend the statute's effective date. Congress failed to agree on competing legislation that would have extended the moratorium. The House of Representatives voted in favor of a permanent ban, but the legislation stalled in the Senate. No further legislative action to extend the ban is expected until this month.

On Oct. 30, the U.S. Patent and Trademark Office (USPTO) initiated a re-examination of the Web-browser patent that gave rise to a $521 million infringement verdict against Microsoft Corp. in August. Eolas' U.S. Patent No. 5,838,906 (the '906 patent) describes a method for embedding interactive applications such as plug-ins or applets in Web pages, which can then be called up by Web browsers such as Microsoft's Internet Explorer (IE). In August, a federal jury decided that IE infringed on the '906 patent, and returned a $521 million verdict against Microsoft. Following the verdict, the World Wide Web Consortium and others in the Internet community urged that prior art raised questions about the validity of the '906 patent. They also asserted that Microsoft's proposed modifications to IE in order to avoid future infringement “would render millions of Web pages and many products of independent software developers incompatible.” The USPTO directed the re-examination after it found that the prior art raised a “substantial new question of patentability.”