December 5 FTC Conference on the Evolving IP Marketplace

On Friday, December 5, 2008, the Federal Trade Commission ("FTC") held a series of public hearings in Washington, DC to address issues of patent policy in the context of recent developments in intellectual property law.  The underlying theme of the discussions addressed how regulators can implement a federal patent policy that balances the economic value of patents in a way that both encourages innovation and protects consumers' interest in robust competition in the marketplace. 

Expanding on the Federal Trade Commission's ongoing discussions, which led to an earlier October 2003 report on conclusions and recommendations for the nation's patent system, FTC Chairman William Kovacic reiterated on Friday the need to recognize that appropriate patent policy will require interdisciplinary work and institutional arrangements to facilitate that work.  One of the major themes of the FTC's earlier efforts was aimed at addressing concerns about the Patent Trademark Office's (PTO") issuance of "questionable" patents that pose a "significant competitive concern and can actually harm competition."  See To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, A Report by the Federal Trade Commission at 5 (October 2003).

Friday's conference was an extension of this concern, as the panels discussed new business models that have developed around patent ownership, patent damages, and doctrines that affect patent licensing.  Throughout the day, panel members discussed various strategies for changing how the patent system works, beginning with how patents are issued by the PTO.  However, keynote speaker Chief Judge Michel of the Court of Appeals for the Federal Circuit cautioned that in order to be effective at addressing concerns, we must diagnose a real illness and prescribe the proper medicine for it.  He views the current patent system as efficient as practicable and fair.  No system, he cautioned, will be perfect, but our court system, among proposed solutions, is best equipped to balance competition and patent law policy.

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