Showing archive for: “Patents”
Patent Pools, Innovation, and Antitrust Policy
Late last month, 25 former judges and government officials, legal academics and economists who are experts in antitrust and intellectual property law submitted a letter to Assistant Attorney General Jonathan Kanter in support of the U.S. Justice Department’s (DOJ) July 2020 Avanci business-review letter (ABRL) dealing with patent pools. The pro-Avanci letter was offered in ... Patent Pools, Innovation, and Antitrust Policy
FCC Auctions and the Benefits of Unlicensed Spectrum
What should a government do when it owns geese that lay golden eggs? Should it sell the geese to fund government programs? Or should it let them run wild so everyone can have a chance at a golden egg? That’s the question facing Congress as it considers re-authorizing the Federal Communications Commission’s (FCC’s) authority to ... FCC Auctions and the Benefits of Unlicensed Spectrum
Patent Eligibility, Competition, Innovation, Congress, and the Supreme Court
A highly competitive economy is characterized by strong, legally respected property rights. A failure to afford legal protection to certain types of property will reduce individual incentives to participate in market transactions, thereby reducing the effectiveness of market competition. As the great economist Armen Alchian put it, “[w]ell-defined and well-protected property rights replace competition by ... Patent Eligibility, Competition, Innovation, Congress, and the Supreme Court
Khan & Slaughter Make ITC Filing Supporting Policies that Would Undermine SEPs and US Innovation
Federal Trade Commission (FTC) Chair Lina Khan recently joined with FTC Commissioner Rebecca Slaughter to file a “written submission on the public interest” in the U.S. International Trade Commission (ITC) Section 337 proceeding concerning imports of certain cellular-telecommunications equipment covered by standard essential patents (SEPs). SEPs are patents that “read on” technology adopted for inclusion ... Khan & Slaughter Make ITC Filing Supporting Policies that Would Undermine SEPs and US Innovation
How the FTC Could, but Won’t, Use Its Rulemaking Authority to Allow Aftermarket Parts
We used to have a robust aftermarket for non-original equipment manufacturer (OEM) automobile repair parts and “independent” repair services, but car companies have increasingly resorted to design-patent protection to prevent competition in the supply of cosmetic repair parts such as bumpers, hoods, panels, and mirrors. The predictable and intended consequence has been to raise prices ... How the FTC Could, but Won’t, Use Its Rulemaking Authority to Allow Aftermarket Parts
Can the FTC Use Rulemaking to Change Antitrust Law?
FTC Rulemaking Power In 2021, President Joe Biden appointed a prolific young scholar, Lina Khan, to chair the Federal Trade Commission (FTC). Khan strongly dislikes almost every element of antitrust law. She has stated her intention to use notice and comment rulemaking to change antitrust law in many ways. She was unable to begin this process ... Can the FTC Use Rulemaking to Change Antitrust Law?
Toward a Dynamic Consumer Welfare Standard for Contemporary U.S. Antitrust Enforcement
For decades, consumer-welfare enhancement appeared to be a key enforcement goal of competition policy (antitrust, in the U.S. usage) in most jurisdictions: The U.S. Supreme Court famously proclaimed American antitrust law to be a “consumer welfare prescription” in Reiter v. Sonotone Corp. (1979). A study by the current adviser to the European Competition Commission’s chief ... Toward a Dynamic Consumer Welfare Standard for Contemporary U.S. Antitrust Enforcement
Antitrust Policy and National Security Interests
U.S. antitrust policy seeks to promote vigorous marketplace competition in order to enhance consumer welfare. For more than four decades, mainstream antitrust enforcers have taken their cue from the U.S. Supreme Court’s statement in Reiter v. Sonotone (1979) that antitrust is “a consumer welfare prescription.” Recent suggestions (see here and here) by new Biden administration ... Antitrust Policy and National Security Interests
The Internationalization of Due Process, Federal Antitrust Enforcement, and the Rule of Law
The acceptance and implementation of due-process standards confer a variety of welfare benefits on society. As Christopher Yoo, Thomas Fetzer, Shan Jiang, and Yong Huang explain, strong procedural due-process protections promote: (1) compliance with basic norms of impartiality; (2) greater accuracy of decisions; (3) stronger economic growth; (4) increased respect for government; (5) better compliance ... The Internationalization of Due Process, Federal Antitrust Enforcement, and the Rule of Law
How Not to Promote US Innovation
President Joe Biden’s July 2021 executive order set forth a commitment to reinvigorate U.S. innovation and competitiveness. The administration’s efforts to pass the America COMPETES Act would appear to further demonstrate a serious intent to pursue these objectives. Yet several actions taken by federal agencies threaten to undermine the intellectual-property rights and transactional structures that ... How Not to Promote US Innovation
Unpacking the Flawed 2021 Draft USPTO, NIST, & DOJ Policy Statement on Standard-Essential Patents (SEPs)
Responding to a new draft policy statement from the U.S. Patent & Trademark Office (USPTO), the National Institute of Standards and Technology (NIST), and the U.S. Department of Justice, Antitrust Division (DOJ) regarding remedies for infringement of standard-essential patents (SEPs), a group of 19 distinguished law, economics, and business scholars convened by the International Center ... Unpacking the Flawed 2021 Draft USPTO, NIST, & DOJ Policy Statement on Standard-Essential Patents (SEPs)
‘New Madison Approach’ Should Be Retained to Promote American Innovation
The leading contribution to sound competition policy made by former Assistant U.S. Attorney General Makan Delrahim was his enunciation of the “New Madison Approach” to patent-antitrust enforcement—and, in particular, to the antitrust treatment of standard essential patent licensing (see, for example, here, here, and here). In short (citations omitted): The New Madison Approach (“NMA”) advanced ... ‘New Madison Approach’ Should Be Retained to Promote American Innovation
