In the era of a do-nothing Congress, a pattern has emerged for the bureaucratic class and the courts to take responsibility that the U.S. Constitution established as a responsibility for the Congress. Agencies, in particular the myriad of three-latter agencies, are interpreting law where the making of law lacks. So, because Congress can’t put a coherent update of U.S. patent law together, the Federal Trade Commission has stepped in to set out their interpretation of events around patent law. They did this through the publishing of a long-awaited, and long, white paper primarily observing how Patent Assertion Entities (“PAE”) operate and making recommendations on how updates could be made to the law. I’m still wading through the document and
related, supporting documents. Here are some links to background, primary, and interpretations that I’ve been plowing through:
- Background white papers from the FTC: a 2003 white paper on innovation, policy, and patent law, a 2011 paper on the IP marketplace, and the FTC vote on the current scope of the white paper.
- Primary documents released recently around the FTC white paper: the press release about the white paper and the white paper.
- Some interpretation that I’ve been paying attention to: from IP Watchdog, from Center for the Protection of Intellectual Property, from IP Pro Patents, from the Essential Patent Blog, from The Federalist Society, from M lex Market Insights.
If you’re in a technology product or services business, you should be paying attention to this. The implications are that this paper
- Will spur more activity in Congress around real patent reform, which will be partisan next year.
- Indicate the FTC’s desire to expand its scope of just simply protecting U.S. consumers, specifically, I worry that the Wyndham decision last year is going to get the FTC feeling like it should be more proactive in its prosecution of its interpretation of law that is either vague or able to be opportunistically interpreted by an administration wanting to make policy.
- Will be taken at face value. The reading I’ve done is that there is some question about the methods used to collect the data that drive the commission’s recommendations.
I’m going to keep researching this, and I’m planning to put together a webinar through IAMCP to help business owners and leaders think about this more deeply. Look for that in the coming weeks and hit me on social with your thoughts/comments.