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  • Commentary posted December 20, 2016 by Alden Abbott Supreme Court’s Samsung v. Apple Decision and the Status of Design Patents

    On December 6 the U.S. Supreme Court handed down its much anticipated decision in Samsung Electronic Co. v. Apple Inc.  The opinion deferred for another day clarification of key policy questions raised by the design patent system. Writing for a unanimous Court, Justice Sonia Sotomayor reversed and remanded a Federal Circuit decision upholding a $399 million damages award…

  • Commentary posted December 19, 2016 by Alden Abbott December 6 Heritage Foundation Program on IP Rights, Competition, and Due Process Overseas

    In recent years, aggressive antitrust enforcement overseas has increasingly targeted some of America’s most successful and innovative companies, such as Apple, Google, Microsoft, and Qualcomm.  Inadequate foreign due process and insufficient protection for American intellectual property rights are a feature of many foreign antitrust actions, which threaten to undermine…

  • Commentary posted December 16, 2016 by Alden Abbott A Strong Competition Policy Prescription for a New U.S. Administration

    1. The new Donald Trump Administration (DTA) will have the opportunity to apply American antitrust and competition policy in a manner that promotes economic efficiency, consumer welfare, and economic growth. 2. Ideally, the DTA should adopt a broad-based competition policy that includes, but goes beyond, vigorous antitrust enforcement. In particular, the DTA should work…

  • Commentary posted December 15, 2016 by Alden Abbott Reconfirming Jessica Rosenworcel as an FCC Commissioner Would Undermine Internet Freedom

    The Senate should not reconfirm Jessica Rosenworcel to the Federal Communications Commission (FCC), in order to allow the Trump Administration to usher in needed reforms in the critical area of communications policy. As documented by the Free State Foundation (FSF) and other supporters of free markets, the Obama Administration’s FCC has done a dismal job in overseeing…

  • Commentary posted December 12, 2016 by Alden Abbott Constitutional and Economic Policy Problems Raised by Inter Partes Review (IPR) Suggest Congress Should Consider Acting

    One of the key innovations of the 2011 Leahy-Smith America Invents Act (AIA), 35 U. S. C. §100 et seq., was the creation of a novel type of “inter partes review” process (IPR), run by the newly-created Patent Trial and Appeal Board (PTAB). Under IPR, a third party may request the U. S. Patent and Trademark Office (PTO) to have administrative judges (PTO employees)…

  • Commentary posted December 1, 2016 by Alden Abbott Competition Policy for a New Administration

    As Truth on the Market readers prepare to enjoy their Thanksgiving dinners, let me offer some (hopefully palatable) “food for thought” on a competition policy for the new Trump Administration.  In referring to competition policy, I refer not just to lawsuits directed against private anticompetitive conduct, but more broadly to efforts aimed at curbing government…

  • Commentary posted November 29, 2016 by Alden Abbott Justice Department Ignores the Benefits of Contracting Freedom in its Crabbed Reading of Music Distribution Decrees

    The Antitrust Division of the U.S. Department of Justice (DOJ) ignored sound law and economics principles in its August 4 decision announcing a new interpretation of seventy-five year-old music licensing consent decrees it had entered into separately with the two major American “performing rights organizations” (PROs)  —  the American Society of Composers, Authors, and…

  • Commentary posted November 29, 2016 by Alden Abbott Acting AAG’s Policy Speech Sends the Wrong Signals on Antitrust Enforcement (or “a Wild Ride Back to the Fifties and Sixties”)

    In a September 20 speech at the high profile Georgetown Global Antitrust Enforcement Symposium, Acting Assistant Attorney General Renata Hesse sent the wrong signals to the business community and to foreign enforcers (see here) regarding U.S. antitrust policy.  Admittedly, a substantial part of her speech was a summary of existing U.S. antitrust doctrine.  In certain…

  • Commentary posted November 29, 2016 by Alden Abbott Patents as a Key to Commercialization: Guidance for Patent-Antitrust Analysis

    Public comments on the proposed revision to the joint U.S. Federal Trade Commission (FTC) – U.S. Department of Justice (DOJ) Antitrust-IP Licensing Guidelines have, not surprisingly, focused primarily on fine points of antitrust analysis carried out by those two federal agencies (see, for example, the thoughtful recommendations by the Global Antitrust Institute, here). …

  • Commentary posted November 29, 2016 by Alden Abbott Global Antitrust Institute’s Comments on Draft DOJ-FTC IP Guidelines are on the Mark

    The Global Antitrust Institute (GAI) at George Mason University’s Antonin Scalia Law School released today a set of comments on the joint U.S. Department of Justice (DOJ) – Federal Trade Commission (FTC) August 12 Proposed Update to their 1995 Antitrust Guidelines for the Licensing of Intellectual Property (Proposed Update).  As has been the case with previous GAI filings…

  • Commentary posted November 29, 2016 by Hans A. von Spakovsky, Alden Abbott A Win for Separation of Powers? Court Rules Against Consumer Financial Protection Bureau

    It may turn out to be only a symbolic defeat for the Obama administration, but a three-judge panel of the Court of Appeals for the District of Columbia yesterday struck down as unconstitutional the leadership structure of the federal Consumer Financial Protection Bureau (CFPB), currently headed by Richard Cordray. Judge Brett Kavanaugh authored the opinion, and Senior…

  • Commentary posted November 18, 2016 by Alden Abbott ICN Advocacy Workshop a Success

    On November 1st and 2nd, Cofece, the Mexican Competition Agency, hosted an International Competition Network (ICN) workshop on competition advocacy, featuring presentations from government agency officials, think tanks, and international organizations.  The workshop highlighted the excellent work that the ICN has done in supporting efforts to curb the most serious source…

  • Commentary posted November 18, 2016 by Alden Abbott The FTC, not the FCC, Should Regulate Internet Privacy

    In an October 25 blog commentary posted at this site, Geoffrey Manne and Kristian Stout argued against a proposed Federal Communications Commission (FCC) ban on the use of mandatory arbitration clauses in internet service providers’ consumer service agreements.  This proposed ban is just one among many unfortunate features in the latest misguided effort by the Federal…

  • Commentary posted November 13, 2016 by Alden Abbott The FTC’s PAE Study Recommendations: Case Not Proven

    On October 6, 2016, the U.S. Federal Trade Commission (FTC) issued Patent Assertion Entity Activity: An FTC Study (PAE Study), its much-anticipated report on patent assertion entity (PAE) activity.  The PAE Study defined PAEs as follows: Patent assertion entities (PAEs) are businesses that acquire patents from third parties and seek to generate revenue by asserting them…

  • Commentary posted November 13, 2016 by Alden Abbott Copyright Office Chief's Dismissal Sends Bad Signal to Creatives

    Just a month and a week after being sworn in as the new Librarian of Congress, Carla Hayden abruptly removed Maria Pallante as head of the U.S. Copyright Office. It was the first firing of a Register of Copyrights in 119 years. Some commentators saw the dismissal as part of an effort by Silicon Valley firms and the Obama administration to weaken American copyright…