The Federal Trade Commission’s (FTC) Recommendations to the International Trade Commission (ITC): Unsound, Unmeasured, and Unauthoritative

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 /media/docs/2011/10/levi.ftcunsound.pdf.

Levi & Sweetland are principals in the Washington, DC offices of McKool Smith, P.C.

23 thoughts on “The Federal Trade Commission’s (FTC) Recommendations to the International Trade Commission (ITC): Unsound, Unmeasured, and Unauthoritative

  1. 22

    The FTC indeed is in bed with big business. It was behind eBay, and now seeks to plug the loophole, the ITC exclusion order.

    For the last 8-10 years,it appears the patent system is being systematically corrupted by big business whose main agenda is to weaken the patent system’s remedies, make it friendly to international filers and to undermine first to invent that most startups think is necessary. We have the FTC report, the patent reform bills, Chief Rader on his warpath, and the likes of Wilson Sonsini, who sponsored more startups than one can imagine, seemingly to switch sides by inventing the racist epithet we know as the “troll.”

    The IPO and the AIPLA have long ago been undermined and serve the interests of the mighty. But Rader and his fellows at the Federal Circuit regularly chum it up at their affairs. I for one object. What they are doing is equivalent to the Federal Circuit judges spending a lot of time at conventions of the Republican Party while at the same time sitting in judgment of election cases.

    Next we hear of Google chief IP counsel being chosen to sit on the Office’s advisory board. Why? The patent office is lead by IBM’s ex VP IP. Why do we need MORE influence from big business?

    The corruption and undermining has to stop. I have no hope for the IPO, but I would like to see the AIPLA come to its senses and seek out pro patent board members.

  2. 21

    Is FTC’s mission to prevent large corporate monopolies, or to prevent startup competition for large corporate monopolies? They are confusing me by their actions.

  3. 20

    Go f yourself, ping. With a fxcking chainsaw.

    Seems ta be the standard response when even your normal fluffy non-substantive response has been nullified.

    As they say – svcks to be you.

  4. 19

    And ta anticipate the usual non-substantive comment by Sunshine

    Go f yourself, ping. With a fxcking chainsaw.

  5. 18

    Cause Paulie, a May 26, 2010 story is actually relevant to the blog topic here of March 2011 FTC report.

    Only if ya hook a ride with Mikey’s time machine.

    Or….

    maybe comments on the March 2011 report are just a bit more relevant (no matter how much ya might not lilke them).

  6. 16

    Ahhhh … there be no better place to be on a beautiful Sunday afternoon … there hangin’ out here at Patently O.

    No sign of MM … or of 6 … (guess they only post when they’re supposed to be working).

  7. 14

    The return of sarah and school boy Willton.

    Hey school boy, answer me the following riddle:

    Patents have been under attack and at lest theoretically since Ebay and KSR have had their value decreased (not increased) – yet we have record number of applications. Why is that?

    Secondly, why is having more applications – increasing the number of application filings a good thing?

    Be a nice school boy and do the homework on these questions.

  8. 12

    Increase the value of patents and what happens? Hmmm… Can anybody help me here. I am struggling for the answer.

    Increase the number of application filings at the USPTO?

  9. 11

    When, if ever, has the FTC or the Justice department for that matter, ever been pro patent system?

    Increase the value of patents and what happens? Hmmm… Can anybody help me here. I am struggling for the answer.

  10. 10

    “outcome driven” and overlooking “policy factors”. as “policy analysis” is tautologically “outcome driven”, this critique is a bit … lightweight? rhetorical? spinny? unserious?

    Seems like the FTC just weighted the policy factors differently than the authors wanted. I’d have more respect, if they’d had more candor in expressing that point of view.

  11. 8

    EXACTLY, As many times as I referred to the difference in the prior art, and the difference in it, in relationship to the second one.. was still not understood, WHY YOU SAY? Because I was left in the BLUE DARK… And that is why I hired Lawyers.. err Snakes. And like Columbus.. I took a wrong turn. And the worm must have been being eaten by the Ostrich. And at that very moment the Coast. I saw the Coast, the Fucqawee Coast. I don’t claim to be a Lawyer. I only hired them so they could do what I could not.. But it seems Their problem now is WHY DIDN’T THEY? And the only problem with the TOWER that claimed SNOBBERY.. Is why didn’t they either? And then an even bigger problem is all the favors they were able to get to keep me in this BOX. That is what I see, And I assure you I was a Fucqawee. And the Court will see and understand. People hire lawyers for a reason. The tower is allowed to handle that legal area because of Their expertise…. It seems to me that Expertise didn’t have anything to do with it. It was all about the colored Bubble. Red or Blue. I didn’t have a choice. I was not allowed to use Invisible Ink! You ask why? Because I am not a Coif or a Gangster or a Tower official or in Congress. but i am a citizen of this United States. And I according to the constitution am allowed certain Rights. And it doesn’t say anything about being Red,or Blue.
    And furthermore I don’t have to have a Train Ticket that will bullet me into oblivion speak with a glow worm.

  12. 7

    And ta anticipate the usual non-substantive comment by Sunshine – advocating for the plain ability ta do exactly what the patent right gives ya ta do aint “fluffing” – it be simply understanding the concept O patents.

    If ya got a problem with that, that be a “you” problem.

  13. 6

    founded on patent holdup

    OMG, someone who has a legal right to exclude is gasp trying ta… unbelievably,…

    exclude.

    The only “shock” here is why it took so long for the anti-patent rhetoric to hit this thread.

  14. 5

    wheelhouse of patent trolls?

    Um, show me where the derogatory use of “trolls” be illegal or otherwise warranted…

    Yeah, thought so.

  15. 3

    Levi & Sweetland are principals in the Washington, DC offices of McKool Smith, P.C.

    Lawyers at McKool Smith arguing against increased standards for granting an exclusion order? Especially where the concerns are founded on patent holdup, the wheelhouse of patent trolls? I’m shocked. Shocked, I say.

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