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THE LATEST: FTC Acting Chairman Ohlhausen Signals Potentially Reduced Role for Antitrust Oversight of Intellectual Property Disputes

WHAT HAPPENED On Friday, October 13, acting FTC chairman Maureen Ohlhausen delivered a speech at the Hillsdale College Free Market Forum titled, “Markets, Government, and the Common Good,” highlighting her view on the intersection between IP and antitrust domestically and abroad. Chairman Ohlhausen’s position, that IP rights must be vigorously protected, is in line with her long-held belief that some enforcement of antitrust laws, especially abroad, has been overzealous when it comes to intellectual property. In 2012, Ohlhausen objected to the FTC’s decision to require Robert Bosch GmbH to refrain from pursuing injunctions on certain SEPs (standard essential patents), and she wrote a dissenting opinion on the commission’s consent agreement with Google Inc. and Motorola Mobility Inc. requiring Google to withdraw claims for injunctive relief on SEPs. In Friday’s speech, she argued that though “foreign [governments] take or allow the taking of American...

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FTC and DOJ Update Antitrust Guidelines for the Licensing of Intellectual Property

On January 13, 2017, the Federal Trade Commission (FTC) and the Antitrust Division of the US Department of Justice (DOJ) issued updated Antitrust Guidelines for the Licensing of Intellectual Property (the Guidelines). The revised Guidelines follow nearly half a year of consideration and public commentary. According to the FTC, the updates were “intended to modernize the IP Licensing Guidelines without changing the agencies’ enforcement approach with respect to intellectual property licensing or expanding the IP Licensing Guidelines to address other topics.” In that vein, the modest updates to the Guidelines affirm that the antitrust agencies still believe that IP issues do not require an altered analysis and that the licensing of intellectual property is generally procompetitive.” Read the full article here.

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FTC Initiates Inquiry Into Patent Assertion Entities

by William Diaz Last week, the Federal Trade Commission (FTC) announced its decision to seek public comment on a proposal to gather information from approximately 25 patent assertion entities (PAE).  The agency defines a PAE as a company whose business model focuses primarily on purchasing patents and then attempting to generate revenue by asserting the intellectual property against persons who are already practicing the patented technologies.  The FTC also anticipates seeking information from approximately 15 other entities asserting patents in the wireless communications sector, including manufacturers and other non-practicing entities or licensing organizations.  None of the PAEs or other firms has been identified by the FTC. In late 2012, the FTC and Department of Justice conducted an industry workshop on the impact of PAEs on innovation and competition.  Workshop participants identified numerous potential harms, but noted the lack of empirical data on...

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Joint DOJ-FTC Workshop Explores Competitive Impact of Patent Assertion Entities

by Stefan M. Meisner and Daniel Powers Federal antitrust enforcement agencies are closely studying the growing activity of patent assertion entities (PAE).  At a recent joint workshop sponsored by the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ), participants from academia, industry and the legal world discussed the competitive impact of these organizations and considered whether antitrust law offers regulators any tools to grapple with potential anticompetitive activity.  No new policy prescriptions emerged during the daylong session, but the agencies continue to seek comment and study this rapidly developing area. To read the full article, click here.

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