Insights

Antitrust Alert: Federal Trade Commission Announces Hearings On Intellectual Property

Yesterday the Federal Trade Commission announced that, on December 5, it will hold the first in a possible series of hearings on intellectual property. The planned topics for these hearings include "changes in IP law, patent-related business models, and new learning about the operation of the IP marketplace" since the FTC issued its 2003 report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy. The hearings will consider the impact of these changes on innovation, competition and consumer welfare. The hearings provide interested companies the opportunity to submit their views on these topics and to help the FTC shape its IP agenda.

According to the FTC, recent court decisions, including eBay v. MercExchange and In re Seagate Technologies, have presented new questions with respect to patent remedies. Similarly, the Supreme Court decisions KSR v. Teleflex, MedImmune v. Genentech and Quanta Computer v. LG Electronics “affect the value of patents and the operation of the IP marketplace,” as does “the emergence of new business models involving the buying, selling and licensing of patents.” The FTC notice states that these developments could “potentially significantly influence a patent’s economic value and a patentee’s compensation.” It expresses concern that either systematic undercompensation or systematic overcompensation of patent holders “present[s] the potential for consumer and competitive harm.”

The FTC notice solicits written comments from interested parties in response to nine questions. These questions consider: (1) recent changes in the IP marketplace; (2) new IP business models; (3) considerations relating to injunctive relief; (4) considerations relating to patent damages; (5) recent changes in the willfulness doctrine; (6) the impact of recent decisions on the value of patents; (7) the impact of uncertainty on the operation of the IP marketplace; (8) transparency of the IP marketplace; and (9) other new learning relating to the patent system and the IP marketplace.

The deadline for submitting comments is February 5, 2009.

It is uncertain at this time whether the FTC will prepare a written report after the hearings. The announcement can be found here.  Copies of the Federal Register notice and the agenda for the first hearing are attached below.

Federal Register Notice
Federal Register Agenda

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Washington, D.C.
202.879.3864
msmcfalls@jonesday.com 

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