Federal Trade Commission, Department of Justice to Hold Workshop on Patent Assertion Entity Activities

The Federal Trade Commission and Department of Justice announced today that they will hold a joint public workshop on Dec. 10, 2012, to explore the impact of patent assertion entity (PAE) activities on innovation and competition and the implications for antitrust enforcement and policy.

This workshop will examine the economic and legal implications of PAE activity, as distinct from prototypical “non-practicing entity” (NPE) activity, such as developing and transferring technology.  By contrast, PAE activities often include purchasing patents from existing owners and seeking to maximize revenues by licensing the intellectual property to (or litigating against) manufacturers who are already using the patented technology. 

Supporters of the PAE business model say that it facilitates the transfer of patent rights, rewards inventors and funds ongoing research and development efforts.  Critics describe adverse effects on competition and innovation, including increased costs and a lack of technology transfer, ultimately taxing consumers and industry. 

The workshop will provide a forum for industry participants, academics, economists, lawyers and other interested parties to discuss the economic and legal analyses of PAE activity.  It will consist of a series of panels examining, among other topics, the legal treatment of PAE activity, economic theories concerning PAE activity and industry experiences. Panelists for the workshop will include academics, private attorneys, economists and industry representatives.

The FTC and Department of Justice are interested in receiving comments on PAE activities and will accept written submissions from the public before the workshop and until March 10, 2013.  Interested parties may submit public comments to: ATR.LPS-PAEPublicComments@usdoj.gov.  Submitted comments will be made publicly available on the Department of Justice and FTC websites.

The all-day workshop is free and open to the public. Individuals are encouraged to register by Dec. 5, 2012, for the workshop by sending an email to: ATR.LPS-PAEWorkshopRSVP@usdoj.gov. Please include “RSVP” in the subject line. Seating will be on a first-come, first-served basis.

The workshop will take place at the FTC’s satellite conference center at 601 New Jersey Ave., N.W., Washington, D.C. from 9:00 a.m. to 5:30 p.m. EST on Dec. 10, 2012. Additional participants will be added to the agenda as they are confirmed.  Updates to the agenda will be posted on the FTC and Department of Justice websites. The workshop will include the following panels, presentations and confirmed participants:  

9:00 a.m. – Opening Remarks: FTC Chairman Jon Leibowitz

SESSION A: FRAMEWORK

 9:15 a.m. – Lecture 1: Introduction to PAE Activity
            Colleen Chien, Assistant Professor of Law, Santa Clara University School of  Law

9:35 a.m. – Lecture 2: Introduction to PAE Licensing
            Carl Shapiro, Transamerica Professor of Business Strategy, University of  California at Berkeley, Walter A. Hass School of Business

10:05 a.m. – Q & A with Professors Chien and Shapiro

BREAK (10:20 - 10:30 a.m.)

10:30 a.m. – Panel 1: Realities of Licensing and Litigation Practices

• Cynthia Bright, Associate General Counsel, IP Litigation and Public Policy, Hewlett-Packard
• Scott Burt, Vice President & Chief Intellectual Property Counsel, Mosaid Technologies Inc.
• John Desmarais, Partner, Desmarais LLP; Founder, Round Rock Research LLC
• Peter Detkin, Founder and Vice-Chairman, Intellectual Ventures
• Sarah Guichard, Vice President of Patent & Standards Strategy, Research In Motion (RIM)
• Paul Melin, Chief Intellectual Property Officer, Nokia
• Neal Rubin, Vice President Litigation, Cisco Systems Inc.
• Alan Schoenbaum, Senior Vice President, General Counsel and Secretary, Rackspace Hosting
• Mallun Yen, Executive Vice President, RPX Corporation

LUNCH (12:00 - 1:15 p.m.) 

1:15 p.m. – Remarks
            Stuart Graham, Chief Economist, U.S. Patent & Trademark Office

SESSION B: POTENTIAL EFFICIENCIES AND HARMS FROM PAE ACTIVITY:  EFFECTS ON COMPETITION AND INNOVATION

1:45 p.m. – Academic Introduction to Potential Efficiencies from PAE Activity

Panel 1: Potential Efficiencies from PAE Activity

• Ron Epstein, CEO, Epicenter IP Group LLC
• Anne Layne-Farrar, Vice President, Antitrust & Competition Economics Practice, Charles River Associates

Academic Introduction to Potential Harms from PAE Activity

Panel 2: Potential Harms from PAE Activity

• Thomas Ewing, Principal Consultant, Avancept LLC
• Robin Feldman, Professor of Law, University of California Hastings College of the Law

• Michael Meurer, Professor of Law and Abraham and Lillian Benton Scholar, Boston University School of Law
• David Schwartz, Associate Professor of Law, Illinois Institute of Technology Chicago-Kent College of Law

Panel 3:  Industry Reaction

BREAK (3:45 - 4:00 p.m.)

SESSION C:   HOW DOES ANTITRUST APPLY TO THE POTENTIAL EFFICIENCIES AND HARMS GENERATED BY PAE ACTIVITY

4:00 p.m. – Academic Introduction
Phillip Malone, Clinical Professor of Law, Harvard Law School; Clinical Co-Director and Senior Fellow, Berkman Center for Internet & Society, Harvard Law School

4:20 p.m. – Panel Discussion

• Logan Breed, Partner, Hogan Lovells
• Susan Creighton, Partner, Wilson, Sonsini, Goodrich & Rosati PC
• Hanno Kaiser, Partner, Latham & Watkins LLP
• Hill Wellford III, Partner, Bingham McCutchen LLP

5:00 p.m. – Q & A

5:20 p.m. – Closing Remarks: Acting Assistant Attorney General for the Antitrust Division Renata B. Hesse

Directions to the FTC’s Conference Center are available at http://www.ftc.gov/bcp/workshops/transportationguide.shtml.

Reasonable accommodations for people with disabilities are available upon request. Requests should be submitted via email to skonstandt@ftc.gov or by calling Samantha Konstandt at 202-326-3348. Requests should be made in advance. Please include a detailed description of the accommodation needed and provide contact information.

The FTC’s Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action.  To inform the Bureau about particular business practices, call 202-326-3300, send an e-mail to antitrust@ftc.gov, or write to the Office of Policy and Coordination, Bureau of Competition, Federal Trade Commission, 601 New Jersey Ave., Room 7117, Washington, DC 20001.  To learn more about the Bureau of Competition, read Competition Counts.  Like the FTC on Facebook, follow us on Twitter, and subscribe to press releases for the latest FTC news and resources.