The FTC PAE Study: A Cautionary Tale About Making Unsupported Policy Recommendations

Public Domain, ABA Antitrust Section Newsletter of the Intellectual Property Committee, Forthcoming

George Mason Law & Economics Research Paper No. 16-45

14 Pages Posted: 10 Nov 2016

See all articles by Joshua D. Wright

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Date Written: November 9, 2016

Abstract

In October 2016, the Federal Trade Commission released its long awaited case study examining the business practices of 22 Patent Assertion Entities (PAEs). One clear policy implication is that PAEs do not present an antitrust problem. While the study makes a number of interesting and potentially important factual findings, it makes four policy recommendations that simply are not substantiated by anything in the study. The FTC acknowledged that the limitations of its sample rendered it inappropriate to extrapolate its findings to PAEs as a whole. Curiously, however, in spite of that acknowledgement, FTC went on to make recommendations applicable to the entire population of PAEs. Because it is unclear whether the policy recommendations in the FTC’s PAE study would survive a cost-benefit test, and because they certainly cannot be substantiated based upon the PAE Study alone, we conclude the policy recommendations should be afforded little weight.

Keywords: patent assertion entities, non-practicing entities, trolls, Federal Trade Commission, patents, intellectual property, antitrust, economics

JEL Classification: K21

Suggested Citation

Wright, Joshua D. and Ginsburg, Douglas H., The FTC PAE Study: A Cautionary Tale About Making Unsupported Policy Recommendations (November 9, 2016). Public Domain, ABA Antitrust Section Newsletter of the Intellectual Property Committee, Forthcoming; George Mason Law & Economics Research Paper No. 16-45. Available at SSRN: https://ssrn.com/abstract=2867110

Joshua D. Wright (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
179
Abstract Views
1,061
rank
166,917
PlumX Metrics