AAI Releases Recommendations on Patent Law and Policy

May 05 2016

Today, the American Antitrust Institute (AAI) released the patent chapter of its forthcoming Transition Report on Competition Policy to the 45th President of the United States. The chapter is entitled Challenging Anticompetitive Acquisitions and Enforcement of Patents.  This release is the third in a series of previews in which the AAI will make select chapters of the transition report available for download in advance of the November election. 

“The need for strong competition and consumer voices in the patent realm has only grown in recent years, and that has been reflected in our work,” said AAI President Diana Moss. The patent chapter of the Transition Report follows the recent launch of AAI’s IP Competition Project, which brings together AAI’s existing research, education, and advocacy with respect to patent and other IP issues; makes such work a key organizational priority; and expands AAI’s work in new directions. The Transition Report’s editor, AAI Associate General Counsel Randy Stutz, said, “This chapter and really all of AAI’s IP work emphasize the important role of competition in promoting innovation, which is integral to promoting entrepreneurship and economic growth.”  

The patent chapter makes a variety of recommendations to better align patent and competition law and policy to more effectively promote innovation, including the following:

  • The Federal Trade Commission and Antitrust Division (the “Agencies”) should continue and expand their advocacy on patent policy to ensure that it promotes competition, innovation, and consumer welfare.
  • The Agencies should act on AAI’s Request for Joint Enforcement Guidelines on the Patent Policies of Standard Setting Organizations (“SSOs”), adopting the principle that SSOs should be liable for the anticompetitive effects of holdup conduct enabled by inadequate SSO patent policies.
  • The Agencies should challenge PAEs’ patent portfolio aggregations and disaggregations that create and enable the exercise of market power under Section 7 of the Clayton Act and Sections 1 and 2 of the Sherman Act.
  • The Agencies should support legislation that requires more transparency by PAEs regarding patent ownership and assignments, grounds for assertions of patent infringement, and related matters.
  • The Agencies should look for opportunities to clarify and develop the law to restrict the application of Noerr-Pennington immunity when SEP owners and PAEs engage in abusive patent enforcement conduct.

Visit the new Transition Report section of the AAI website for a free download of the entire chapter and links to the AAI’s related work. For more information on the IP Competition Project, visit the AAI IP Competition Project web page.

The AAI Presidential Transition Report makes policy recommendations based on the AAI's mission of promoting competition that protects consumers, businesses, and society.  The Report is one way the AAI serves the public through education, research, and advocacy on the benefits of competition and the use of antitrust enforcement as a vital component of national and international competition policy. 

Randy Stutz, Associate General Counsel, American Antitrust Institute
(202) 905-5420

Diana Moss, President, American Antitrust Institute
(202) 536-3408