Tom Ewing: On UC Hastings Patent Troll Workshop, What FCC Could Do

Tom Ewing, a patent attorney who specializes on patent trolls, reports from his seat at the UC Hastings patent troll workshop. FCC investigation options … — Economists, intellectual property scholars and various industry representatives are here with me in San Francisco today. The point is to discuss means for aiding the government in its forthcoming investigation of patent assertion entities (PAEs), firms known more pejoratively at patent trolls.

I’m one of the patent attorneys who presented at a workshop at the event, hosted by UC Hastings Institute for Innovation Law. Click here to check out my letter to U.S. President Barack Obama on what I believe are the top questions U.S. authorities should ask about patent trolls.

Participants discussed topics ranging from what marketplace behaviors the FTC and DOJ should examine to exactly where the government might find the most pertinent information. The issues are shadowy, especially considering the tangled involvement of tech companies such as Microsoft, Apple and other giants who invest in and are embroiled with patent trolls.

The workshop divided into breakout groups to discuss obstacles researchers encounter in PAE investigations, what questions are most relevant, what kind of information would be necessary to get to the bottom of how PAEs operate via oddly named shells and where does the information exist?

As noted by workshop organizer, UC Hastings professor Robin Feldman, Section 6(b) of the Federal Trade Commission Act grants the FCC the authority to engage in broad-ranging economic investigations of PAEs.

In addition, the Section 5 rulemaking authority of the FTC provides that the Commission may use trade regulation rules to remedy unfair or deceptive practices that occur on an industry-wide basis. Participants were asked how could an FTC Section 6(b) investigation be structured to address the gap in information and could the FTC Section 5 rulemaking authority or actions by state attorneys general be effective as well?

As patent assertion entities come in many forms, so do the methods of patent assertion and monetization and the problems arising from the behaviors, observed Feldman. She asked participatns what policy initiatives, individually or in combination, might be effective in limiting wasteful assertion activity without chilling innovation and competition?

Above, the Wright brothers, who acted as PAEs in their time. Credit: Wikimedia Commons

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