Published in Landslide Vol. 11 No.2, ©2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Perspective
Innovation, Creativity, and IP Law
By Mark K. Dickson
Advances in autonomous vehicles, electronics, drug design, and medical treatment are just a few examples of the ways that innovation drives growth and improvement in the world and brings creative solutions to everyday problems. As creativity’s lawyers, those of us in the intellectual property profession work to champion the encouragement and protection of innovation.
The United States has been a world leader in innovation for decades, meeting challenges in the world marketplace and pushing our economy forward to new heights. Innovation fuels entire sectors of our economy—accelerating at such rapid pace and so accepted as a part of life that we have taken it for granted. This past summer, the U.S. Patent and Trademark Office issued the 10 millionth patent. It took 200 years to reach the first five million patents in the United States in 1991 but only 27 years to reach the next five million.
Ensuring that this kind of pace and world leadership continues takes constant effort so that innovation is encouraged, maintained, and well protected with strong and fair laws regulating competition, particularly intellectual property laws. To address related issues, the ABA Section of Intellectual Property Law (ABA-IPL) recently joined forces with the ABA Section of Antitrust Law in preparing comments to the Federal Trade Commission (FTC). This combined effort was in advance of an upcoming series of public hearings on whether broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection enforcement law, enforcement priorities, and policy.1
Our Section was especially interested in Topic 8 from the FTC, “The role of intellectual property and competition policy in promoting innovation.” With respect to this topic, the FTC stated:
Of particular interest to the Commission is comment from intellectual property owners, licensors, and licensees and academic, legal and policy experts, on, and economic analysis of: (a) the adoption and utilization of novel business practices (beyond those addressed in the Commission’s prior guidance and actions) with respect to obtaining or enforcing intellectual property rights, where such practices may be inconsistent with the antitrust laws; (b) identification of contemporary patent doctrine that substantially affects innovation and raises the greatest challenges for competition policy; (c) evaluation of intellectual property litigation in competitive effects analysis; and (d) evaluation of efficiencies and entry considerations in technology markets in merger analysis.
The ABA-IPL Section convened a task force to coordinate with the ABA’s Antitrust Section on responding to the FTC request for comment, specifically on Topic 8. Our final joint comments were approved by ABA-IPL Council during the ABA Annual Meeting in Chicago in August.2 These comments provide a neutral statement of the issues and suggest some lines of inquiry for the FTC to pursue as part of its hearings on patent-related issues, antitrust trademark and copyright interfaces, and emerging issues relating to pharmaceutical patents, among other matters.
Innovation doesn’t just happen, and it won’t keep happening, without a healthy foundation of competition law and intellectual property protection. This includes a strong patent system, healthy trademark and copyright laws, and sound protection for trade secrets and other forms of intellectual property law.
Part of what we do in our Section involves advocating for change and improvement in intellectual property law. And our work is significantly enhanced by the benefit of collaboration with other entities within the ABA, like the Section of Antitrust Law. It’s easy to highlight inadequacies or unfairness in intellectual property protection and other laws but not nearly as easy to find and promote consensus for change. That is why we study, review, collaborate with other ABA entities, and propose policy and new legislation. As members, you can be proud of the work we do on your behalf for the benefit of our profession. We invite all of you who are interested to join us in our advocacy efforts so you can add your voices and let them be heard.
Endnotes
1. The FTC has set forth its enforcement positions in prior public documents, including the joint FTC and Department of Justice 2017 Antitrust Guidelines for the Licensing of Intellectual Property and 2007 Antitrust Enforcement and Intellectual Property Rights report. The FTC has also engaged in substantial competition advocacy regarding the legal and policy regime related to intellectual property rights, including its three “IP” reports: the 2003 To Promote Innovation report, the 2011 Evolving IP Marketplace report, and the 2016 Patent Assertion Entity Activity report.
2. Comments to the Federal Trade Commission in Advance of the FTC Hearings on Competition and Consumer Protection in the 21st Century, Project Number P181201 (Aug. 20, 2018), https://www.americanbar.org/ content/dam/aba/administrative/ intellectual_property_law/advocacy/ Final_SAL_SIPL_Comments_2018_FTC_Hearings_Final.pdf.