Is the FTC well-suited to take on IP/Patent policy?

On December 5, 2008 the Federal Trade Commission held the first in a series of hearings entitled: The Evolving IP Marketplace. According to the FTC, the hearings are intended to examine changes in intellectual property law and patent-related business models since the FTC issued its October 2003 report, entitled To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy A Report by the Federal Trade Commission.

December 5th’s hearing featured CAFC Chief Judge Paul Michel and speakers such as Q. Todd Dickinson, Executive Director of AIPLA, Rod McKelvie, Covington and Burling and Jay Thomas, Georgetown University law professor among others. The panelists explored the emergence of new business models involving the buying, selling and licensing of patents; recent and proposed changes in remedies law, their impact on innovation and consumers, and the use of economic analysis in determining remedies; and changes in legal doctrines that affect the value and licensing of patents brought about by recent Supreme Court cases on obviousness, declaratory judgment and exhaustion.

FTC Chairman William Kovacic said that “coming up with good solutions to IP policy requires a genuinely multidisciplinary” approach, and that the FTC is well-suited to the task because of its ability to educate, convene and take appropriate enforcement actions.

But Chief Judge Michel said that neither Congress nor the executive branch should be actively involved in overhauling intellectual property but that “We will probably make more progress in the courts through case law” than by asking the US Patent and Trademark Office (USPTO) or Congress to wade deep into intellectual property conflicts.

While the 2003 process included the cooperation of the USPTO its unclear whether the Agency has been involved in the current process. The FTC is accepting comments in response to its Federal Register Notice by Feb 5, 2009.

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