Recommendations Following the FTC’s October 2018 Hearings on IP and Innovation

Competition Policy International, Fall 2018 Forthcoming

8 Pages Posted: 27 Nov 2018

See all articles by Koren Wong-Ervin

Koren Wong-Ervin

Director of IP & Competition Policy at Qualcomm Incorporated and Senior Expert at China's University of International Business & Economics (formerly at the U.S. Federal Trade Commission)

Georgios Effraimidis

Qualcomm, Inc.

Date Written: October 30, 2018

Abstract

On October 23-24, 2018, the U.S. Federal Trade Commission (FTC) held hearings on intellectual property (IP) and innovation as part of its broader ongoing hearings on Competition and Consumer Protection in the 21st Century. The hearings focused on the role of IP protection in promoting innovation, as well as the foundational question of whether the FTC (and the government more broadly) should play a role in advancing or supporting innovation and, if so, what role. The Commission is seeking further public input through its consultation process on this important (and commendable) inquiry, including asking whether the FTC currently uses its enforcement and policy authority to advance innovation, and what factors it should consider in attempting to achieve this objective. The hearings also included sessions on the role of IP in business and investment decisions, emerging trends in patent quality and litigation, and industry and economic perspectives on current U.S. IP and innovation policy.

This short article summarizes some of the major themes from these hearings and provides an economic and legal analysis of the relevant testimony. We conclude with recommendations for the FTC to consider when evaluating possible future enforcement and policy work in this area. Our recommendations focus primarily on certain concerning positions taken in the Commission’s 2003 and 2011 IP Reports, namely with respect to patent quality and the recommendation that courts adopt an ex-ante incremental value approach when calculating patent damages.

Keywords: Federal Trade Commission, FTC, Hearings, Intellectual Property, Innovation, Standard-Essential Patent, FRAND, Patent Quality, Ex Ante Incremental Value Approach, SSPPU

JEL Classification: K21, L4, L5, O30, O31, O34

Suggested Citation

Wong-Ervin, Koren and Effraimidis, Georgios, Recommendations Following the FTC’s October 2018 Hearings on IP and Innovation (October 30, 2018). Competition Policy International, Fall 2018 Forthcoming . Available at SSRN: https://ssrn.com/abstract=3275862 or http://dx.doi.org/10.2139/ssrn.3275862

Koren Wong-Ervin (Contact Author)

Director of IP & Competition Policy at Qualcomm Incorporated and Senior Expert at China's University of International Business & Economics (formerly at the U.S. Federal Trade Commission) ( email )

1730 Pennsylvania Ave N.W.
Suite 850
Washington DC, DC 20006-1850
United States

Georgios Effraimidis

Qualcomm, Inc. ( email )

5775 Morehouse Dr
San Diego, CA 92121
United States

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