Mar
5
Live blog: William Blumenthal, GC of the FTC
Posted by Irene Soto at 12:24 pm under Events, Internet.
“Recent Issues in IP and the Internet Under Competition Law”
12:23: IP, Internet at the FTC & DOJ. Issues to be covered: FTC Reports on innovation, IP-related case activity, Internet-related reports, Internet-case activity.
12:26: The FTC 2003 “To Promote Innovation…” Report. “Summary of a series of hearings held in the 2002 timeframe. 24 days. 300 panelists. 100 separate writings. The purpose… was to better align the realted policies of IP and competition law… I use the word aligning, as opposed to balancing, because when you speak of balance there’s some suggestion of inherent tension where you have to have tradeoffs… Alignment has different considerations that aren’t necessarily tripping over each other.”
12:27: “Jim Toupin is my counterpart at the PTO and he and I end up on panels… fun sparring.”
12:29: “There’s tremendous importance of patent quality… I’ll be explicit, there are different views on [this] in different sectors in the business community… you get very different answers because the pharma community has a single patent… and from that perspective, they’re giving sovereign value to protecting the IP… But most of the electronic products have at least 100 plus patents. That means you have an awful lot of people that need to rely on each other’s patents… And they really don’t like end-licensing questionable patents.”
12:32: Results of the Report: (1) Good thing to eliminate questionable patents,(2) Take steps to minimize questionable patents: change obviousness standard, more funding for the PTO (”This is what Jim Toupin likes to report”), elevated costs (get rid of submarine patents), modify doctrine of wilfull infringement to require actual notice.
12:38: 2007 FTC/DOJ Report: “The DOJ did not want to criticize … commerce (the PTO). As an independent agency, we did not feel similarly.” Coverage: (1) Unilateral refusals to license IP, (2) joint standard-setting (”this is probably the most significant chapter… it focuses on the problems of SSOs that arise from patent holdup. Part of what this report does is make clear that the agencies are reluctant to intervene in efforts… it’s not per se price fixing.”) (3) portfolio cross-licensing, (4) tying and bundling, (5) extensions beyond patent term (”patent misuse has been important to the antitrust laws.”)
12:40: Noteworthy Case Activity: Three categories: (1) IP Cases: “we have a consultative role in these case,” (2) Consumer Protection Cases (3) Competition Cases (Independent Ink: addressed whether patents give inference of market power–> no. Schering and Tamoxifen: antitrust treatment of patent settlements: Cases with minimal IP relationship “unfortunately, from our perspective, the FTC view is not widely shared. It’s consistent with the 6th Circuit, but not the 11th Circuit or the 2nd Circuit or the Justice Department, so far.”
12:42: Supreme Court IP cases: “eBay is probably the most important… it dealt with standard of issuance of permanent inkinction where infringement has been established… our view was that the traditional view… was the appropriate standard in antitrust, in tort, in, you name it. That’s where the court came out as well.”
12:44: MedImmune: “Supreme Court, with the urging of the government, said yes you can [take the licensor to court].”
12:46: FTC is mostly involved in pharma settlements or abuses in the context of SSOs.
12:47: Rambus: 2007 opinion now on appeal in DC Circuit: “Having seen the argument a few weeks ago, I’m not sure whether this case is going to stand up or not.” “There’s not a view that disclosure is mandatory.”
12:49: Two Staff Reports: (1) Municipal wi-fi (2006): “no real conclusion. My agency doesn’t like state-owned enterprise” (2) Broadband connectivity (2007): deal with net neutrality: “Be careful. We don’t like government to compel access unless there’s reason to do so… We’re mindful that there’s common carriage in the telecom setting, but the essence [of the Report] was to say that … before people start compelling neutrality, take a deep breath, and let’s make sure we really need it.”
12:52: Merger matters: “The first [case] was in 1998… In 2000, FTC intervened in AOL v. TimeWarner… I don’t think we would have pursued that position today … We certainly wouldn’t have pursued that case today. In Google/DoubleClick … there’s no adverse competitive effect from that deal … DoubleClick does something different. The next one coming down the pipe is Microsoft and Yahoo … but that would go to the Justice Department.
- Q&A -
12:54: “Patent law was inhibiting challenges to bad patents. Antitrust was prohibiting self-protection that people might engage in to prevent exposure of dubious patents.”
12:58: How do you coordinate issues between different departments? “I’m smiling because at some level this is sort of a profound question. It depends what department and what issues. On the Supreme Court cases, the coordination is done through the Office of the Solicitor General. Various offices will be invited to … express what the view of the United States ought to be. We’ll often get around a big conference table and hassle it out.”
1:00: “We’re in daily contact with the DOJ on all sorts of micro-policy issues.” “For those of you that are married, you’ll understand what I’m talking about… there are consequences to the family when it doesn’t get worked out.”
1:02: “There’s the coin-toss approach … At the moment it is a basketball possession-arrow approach.”
1:04: Does the FTC have a position on the PTO’s recent attempts to promulgate new rules? “I dont think the commission does… I think that staff has viewed most of them in favor.”