Agency Information Collection Activities; Proposed Collection; Comment Request; Project No. P131203 #00041

Submission Number:
00041
Commenter:
Richard Falk
State:
California
Initiative Name:
Agency Information Collection Activities; Proposed Collection; Comment Request; Project No. P131203

I applaud the FTC’s efforts to prevent business practices that are anticompetitive or deceptive or unfair to consumers. Unfortunately, the information requests to PAEs suggested by the FTC are asking the wrong questions. The questions that should be asked are those that determine whether the cases (or assertions for demand letters) have merit. Since over 90% of the cases settle and an even larger absolute number of demand letters are settled without a case being filed and since the settlement agreements are typically under NDA and other relevant information from the Courts is kept under seal, there is virtually no visibility regarding merit (i.e. patent validity and accused instrumentality infringement) for most cases. Without visibility into the actual merit of cases and assertions, legal arguments can be made that there is no proven problem and the results of your information requests will not have practical utility except for academics making theoretical arguments. The questions you should be asking are those that let you determine whether the patents are actually valid and the defendants actually infringing. In other words, you need to determine the degree of litigation abuse. More detailed comments are in the attachment.