The Federal Trade Commission’s Hearings on Competition and Consumer Protection in the 21st Century, Innovation and Intellectual Property Policy, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University

Abstract

This Comment is submitted in relation to the Federal Trade Commission’s (“FTC”) Hearings on Competition and Consumer Protection in the 21st Century. We submit this Comment based upon our extensive experience and expertise in antitrust law and economics. As an organization committed to promoting sound economic analysis as the foundation of antitrust enforcement and competition policy, the Global Antitrust Institute commends the FTC for holding these hearings and for inviting discussion concerning a range of important topics. In this Comment, we will discuss contemporary issues involving innovation, Standard Essential Patents (“SEPs”), and Fair, Reasonable, and Non-Discriminatory (“FRAND”) pricing commitments. As we move forward in an era marked by constant innovation revolving around Intellectual Property (“IP”) rights, it is imperative that the FTC recognize that these IP rights should be treated under the same analytical framework as other property rights and upheld regardless whether the setting is private licensing or FRAND commitments. Our modern law and jurisprudence are well-developed in the area of IP rights, and the reliance on IP rights in the standard-development process should not be accompanied by a move away from this well-developed body of law. In writing this Comment, we want to emphasize the importance of strong IP rights, the lack of evidence supporting the concern over holdup issues, and the need for the FTC to recalibrate priorities in the relationship between IP and antitrust.