In March 2011, the FTC issued a Report entitled “The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition.” In that report, the FTC recommended that the ITC adopt the view that “only those licensing activities that promote technology transfer ‘exploit’ patented technology within the meaning of Section 337, and therefore satisfy the domestic industry requirement.” Also, the FTC recommended that the ITC “incorporate concerns about patent hold-up, especially of standards, into the decision of whether to grant an exclusion order in accordance with the public interest elements of Section 337.”
In a new Patently-O Patent Law Journal essay, Benjamin Levi and Rodney Sweetland review the FTC's recommendations for FTC action and argue that "the recommendations appear to be outcome-driven, as they overlook legal and policy-based factors that counsel against implementation of the recommendations."
Cite as Benjamin Levi and Rodney R. Sweetland, The Federal Trade Commission’s (FTC) Recommendations to the International Trade Commission (ITC): Unsound, Unmeasured, and Unauthoritative, 2011 Patently-O Patent L.J. 1, at http://www.patentlyo.com/files/levi.ftcunsound.pdf.
Levi & Sweetland are principals in the Washington, DC offices of McKool Smith, P.C.