Public Choice, Patents, and the FTC: Comments on the Commission’s October 2003 Report on the Interface Between Patents and Antitrust

By F. Scott Kieff
April 08, 2004
In October, 2003, after conducting a year of joint hearings with the Department of Justice’s (“DOJ”) Antitrust Division “to develop a better understanding of how to manage the issues that arise at the intersection of antitrust and intellectual property law and policy,” the Federal Trade Commission (“FTC”) issued a report of over 300 pages that appears to represent only the patent portion of only its own (not the DOJ’s) conclusions and recommendations. The comments in this essay are based on the belief that the FTC is a well-intentioned, well-organized, and well-run government agency operating with the benefit of adequate resources including a well-intentioned, well-trained, and well-operating staff. Nevertheless, the comments hope to point out how even with precisely such seemingly optimal conditions at least in this case and for this form of action, “government is the problem.” The FTC Report represents a substantial amount of action by one government agency that has been given no express role in administering patent laws and only a shared role in administering the antitrust laws. Its core recommendations largely increase the overall footprint of government in commerce, and have the paradoxical effect of generally frustrating the market entry that these laws are designed to facilitate....