Last week Georgetown University Law School in Washington, D.C., hosted its annual Global Antitrust Enforcement Symposium. Despite its name, this is largely a trans-Atlantic event, bringing together lawyers and key government officials from North America and Europe.
The conference opened with remarks by Bill Baer, the U.S. Assistant Attorney General for the Antitrust Division, who directs antitrust matters for the U.S. Department of Justice. Mr. Baer was followed by Joaquín Almunia, Vice President of the European Commission and its Commissioner for Competition – he directs antitrust/competition matters in Europe. You can find Commissioner Almunia’s complete remarks here (http://europa.eu/rapid/press-release_SPEECH-14-588_en.htm), but I wanted to share a passage which is of primary interest for readers of this blog:
Finally, we have also seen in recent years an increasing interaction between competition and intellectual property rights, especially in the context of standards and, more specifically, in the so-called “smartphone wars”. Last April, the Commission adopted two decisions involving the smartphone manufacturers Samsung and Motorola. The decisions establish that a company can always use injunctions to fight back patent infringements. However, such injunctions may be abusive when the holder of a standard-essential patent has given a commitment to licence it on FRAND terms and when licensees are willing to respect them. These principles strike a good balance between the interests of patent holders and those of the companies that need those patents to produce their devices. The former should be fairly remunerated for the use of their intellectual property. The latter should get access to standard-essential technology without the threat of anti-competitive injunctions. I hope our decisions will bring clarity to the market and help avoid the protracted patent disputes we have seen in the smartphone industry.
Edith Ramirez, the Chairwoman of the U.S. Federal Trade Commission, gave the luncheon address, which focused on licensing standard essential patents and antitrust enforcement. You can find Chairwoman Ramirez’ address here (http://www.ftc.gov/public-statements/2014/09/standard-essential-patents-licensing-antitrust-enforcement-perspective-0), and they are worth a read, not least for Commissioner Ramirez’ take on enforcement policy concerns with China.
The final highlight of the conference was a panel on “IP, High-Tech and Antitrust” that included Renata Hesse, Deputy Assistant Attorney General for Criminal and Civil Operations at the U.S. Department of Justice’s Antitrust Division, and Josh Wright, the newest Commissioner of the U.S. Federal Trade Commission. The panel focused on patent/antitrust issues and was notable for the evident disagreement between Ms. Hesse and Commissioner Wright on the basis of governmental patent policy. Commissioner Wright emphasized his view that patent policy debates had an “intolerably high ratio of theory to evidence” while Ms. Hesse held the view that the DOJ policy was appropriately grounded.
You can find the conference agenda, participant biographies, and materials here (http://www.law.georgetown.edu/continuing-legal-education/programs/cle/antitrust/Course-Materials.cfm), including several documents related to the patent/antitrust panel.
Once you know something about a subject, you can’t help noticing how the popular media gets basic facts wrong. Police officers have a hard time keeping a straight face when watching police dramas on TV and real computer programmers laugh when hackers take 30 seconds to break into a system on the big screen. I recently had the same experience, watching a new TV commercial from Mitsubishi.
Naturally, Mitsubishi highlights their vehicle’s technical innovations, and I smiled when they mentioned their patent on an all-wheel traction control system. But I laughed when the commercial showed two armed guards outside a door marked “Top Secret” and said “this is where we keep it”. Mitsubishi’s engineers certainly know better, but apparently the ad agency doesn’t understand that a filing a patent is equivalent to renting a billboard in Times Square and buying a full-page color ad in the Wall Street Journal.
The whole point of the patent system is to encourage inventors to willingly share their ideas with the world, and not lock them away in secret rooms. When a patent is filed the idea is available to everyone and all of society benefits from the sharing of new ideas. The challenge, then, is how to reward innovators and protect them from having their ideas copied without any compensation. The patent system accomplishes this by granting the owner a temporary monopoly to either “practice” the invention himself, or license others who wish to use it. During this entire period, the patent itself is a matter of public record, as far from Top Secret as you can get.
Mitsubishi’s armed guards were a nice theatrical touch, but they’re superfluous. Guards don’t keep the patents secret and they don’t protect them from infringement, either. The judicial system of the country which granted the patent is available to defend the patent owner’s rights, whether through import injunctions or damage awards. The patent owner may need to hire a lawyer, but not a gunslinger.
My point isn’t to make fun of Mitsubishi or their ad agency, but rather to state that if a fundamental mistake such as this makes it all the way onto the TV screen, it shows there’s a great deal of popular misunderstanding about what a patent really is – or a willingness to promote a mistaken notion. But as calls for “patent reform” grow ever louder, all of us in the intellectual property field must do a better job of explaining how patents really work.