Insights

Antitrust Alert: Federal Trade Commission Announces Further Hearings On Intellectual Property and Antitrust

On January 12, 2009, the Federal Trade Commission announced that, in mid-February, it will hold the next two sessions of its ongoing hearings on The Evolving Intellectual Property Marketplace. The upcoming sessions will focus on the standards for assessing patent damages and awarding permanent injunctions.

In November 2008, the FTC announced that it would hold a series of hearings on intellectual property. The planned topics include "changes in IP law, patent-related business models, and new learning about the operation of the IP marketplace," covering developments since the FTC issued its 2003 report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy. The ongoing hearings will consider the impact of these changes on innovation, competition and consumer welfare. Upon completion of the hearings in 2009, the FTC will decide whether to prepare a report.

The session scheduled for February 11, 2009, will consider recent trends in damage awards in patent lawsuits and their impact on patent value and innovation. The session also will examine various approaches to damages calculations and reasonable royalty determinations and will consider proposals to revise the standards for damages determinations. The session scheduled for February 12, 2009, will examine the ways courts have analyzed whether to grant or deny injunctions, including the role of economic evidence in that analysis. The session will also consider:

  • the impact of the eBay decision on patent valuation and licensing;
  • whether the changes in the willfulness doctrine have altered the behavior of patentees and potential infringers; and
  • how changes in remedies law have implicated incentives to bring, defend or settle patent suits.

In addition to recognized academics and economists, the panelists will include representatives of 3M, Amberwave, Bank of America, Eli Lilly, Genentech, IBM, Intel, Johnson & Johnson, Seagate Technology, Tessera, Verizon, and The Vertical Group.

The FTC’s November 2008 notice announcing the Intellectual Property hearings solicited 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.

Read more on the Hearings at the FTC web site.

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Jones Day prepares summaries of significant antitrust enforcement, litigation, and policy events as a service to clients and interested readers, to provide timely insight on antitrust and competition law developments relevant to business, but not as legal advice on any specific matter. Please visit our Publication Request form  to add your name to our distribution list

For more information, please contact your principal Jones Day representative or either of the lawyers listed below.

Geoffrey D. Oliver
1.202.879.5447
gdoliver@jonesday.com

Michael S. McFalls
1.202.879.3864
msmcfalls@jonesday.com

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