The Evolving IP Marketplace


When:

The Evolution of Remedies

February 11, 2009
9:00am - 5:00pm

February 12, 2009
9:30am - 4:30pm

Where:
FTC Conference Center
601 New Jersey Avenue, NW
Washington, DC 20001

The Event

The Federal Trade Commission began a series of public hearings beginning on December 5, 2008, to explore changes in intellectual property law, patent-related business models, and new learning regarding the operation of the IP marketplace since the FTC issued its October 2003 report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy A Report by the Federal Trade Commission (October 2003) [PDF].  The FTC will hold its next set of hearings in the series on February 11-12, 2009, focusing on remedies in patent infringement cases.  The February 11 hearing will address patent damages, including the standards that govern damage awards, their application and impact damage awards on business activity, including licensing and innovation.  The hearing on February 12 will focus on permanent injunctions and willful infringement.  Panelists will consider, among other issues, the criteria courts have considered in deciding whether to grant or deny an injunction in the wake of the U.S. Supreme Court’s eBay decision and the effect of these legal doctrines on innovation and business strategies.

The Commission seeks the views of the legal, academic, and business communities on the issues to be explored at the hearings. In its Federal Register Notice the agency set out a list of specific questions on which it is particularly seeking comments. The agency will consider any comments received as it prepares for the hearings.

Prior to each hearing the Commission will publish a detailed agenda on this website. The hearings will be transcribed; the transcript will be placed on the public record; and any written comments received will also be placed on the public record

Background

The patent system has experienced significant change since the FTC released its IP Report in October 2003, and more changes are under consideration. The courts and patentees are exploring the full implications of Supreme Court and Federal Circuit decisions on injunctive relief, patentability and licensing issues. Congress has considered sweeping legislative patent reform, and new debates on the appropriate methods for calculating infringement damages have engaged the patent community. New business models for buying, selling and licensing patents have emerged and evolved since 2003. In addition, there is new learning regarding the operation of the patent system and its contribution to innovation and competition.

Changes and proposed changes in the law, together with evolving business models for buying, selling and licensing IP, could significantly influence a patent’s economic value and the operation of the IP marketplace. The extent and cumulative impact of these changes and proposed changes on the patent system are poorly understood. They could potentially significantly influence a patent’s economic value and a patentee’s compensation. If patentees were systematically under-compensated due to legal doctrines that drive down the value received through remedies and licensing, patents would be devalued. This would undermine the patent system’s incentives to innovate, to the detriment of consumers who benefit tremendously from innovation. On the other hand, if the relevant legal rules operate to systematically overcompensate patentees, supra-competitive prices for technology would unduly dampen future innovation, and prices for products incorporating patented inventions would increase unjustifiably. Both under- and overcompensation of patentees present the potential for consumer and competitive harm. The hearings will consider the impact of these changes on innovation, competition and consumer welfare.

FEBRUARY 11th - 12th HEARING

DECEMBER 5th HEARING

PRE-REGISTRATION

The event is free and open to the public. All attendees will be required to display a current driver's license or other valid form of photo identification. The Conference Center is accessible to people with disabilities. If you need an accommodation related to a disability, please call Carrie McGlothlin at 202-326-3388.

Pre-registration for this workshop is not necessary, but is encouraged, so that we may better plan for the event.

To pre-register, email your name and affiliation to IPMarketPlace@ftc.gov.

NOTE: When you pre-register, we will collect your name, affiliation, and your email address. This information will be used to estimate how many people will attend. We may use your email address to contact you with information about the workshop.

FILING A COMMENT

The Commission invites interested persons to submit written comments on issues related to this workshop. All comments in response to the Federal Register Notice or to inform discussion at the workshop must be received by May 1, 2009.

Comments should be captioned “Evolving IP Marketplace – Comment, Project No. P093900” and submitted according to the instructions below.

To File Electronically:

Follow the instructions and fill out the form at https://secure.commentworks.com/ftc-ipmarketplace

To File in Paper Form:

A comment filed in paper form should include the reference to “Evolving IP Marketplace – Comment, Project No. P093900” in both the text and on the envelope, and should be mailed or delivered to the following address:

Federal Trade Commission
Office of the Secretary
600 Pennsylvania Avenue, N.W.
Room H-135 (Annex I)
Washington, DC 20580

Because postal mail in the Washington area and at the Commission is subject to delay, please consider submitting your comments in electronic form, as described above. The FTC requests that you send any comment by courier or overnight service, if possible.

To Request Confidential Treatment:

To request confidential treatment, you must file in paper form and clearly label the first page of the document with “Confidential” and comply with Commission Rule 4.9(c). 15 C.F.R. § 4.9(c).

FTC PRIVACY POLICY

Under the Freedom of Information Act (“FOIA”) or other laws, we may be required to disclose to outside organizations the information you provide when you pre-register. The Commission will consider all timely and responsive public comments, whether filed in paper or electronic form, and as a matter of discretion, we make every effort to remove home contact information for individuals from the public comments before posting them on the FTC website.

The FTC Act and other laws we administer permit the collection of your pre-registration contact information and the comments you file to consider and use in this proceeding as appropriate. For additional information, including routine uses permitted by the Privacy Act, see the Commission’s comprehensive Privacy Policy.

FOR FURTHER INFORMATION CONTACT:

Erika Meyers
Office of Policy and Coordination,
Bureau of Competition,
601 New Jersey Avenue, N.W.,
Washington, D.C. 20580
Phone: 202-326-2541
or e-mail, IPMarketPlace@ftc.gov