The Department of Justice and the Federal Trade Commission provided comments (“DOJ/FTC Comments”) last week that highlighted the role of the patent system in promoting “competition, innovation, and consumer welfare.”
The DOJ/FTC Comments were submitted as part of the U.S. Patent and Trademark Office (“PTO”) Enhanced Quality Initiative. The PTO’s Initiative, launched in February, demonstrates a clear recognition that high quality patents, with clearly defined claims, are fundamental to ensuring that the patent system achieve the constitutional imperative to promote the useful arts.
The DOJ/FTC Comments are noteworthy because the intersection of patent and antitrust law is one of tremendous interest in Congress, the courts, and in academia. The DOJ/FTC Comments buttress the understanding that the patent system promotes dynamic efficiency, and thereby enhances consumer welfare—which is ultimately the objective of competition law. The DOJ/FTC Comments note that “[p]atents encourage investments in innovation.”
Clear guidance about the scope of any form of property, however, is needed to give notice to others about what may trespass on that property. Many of the concerns with the patent system being discussed in Congress these days—both by patent owners and those accused of infringement—stem from a lack of clarity about what the patent does and does not cover. This lack of clarity can lead to unwarranted infringement suits and can also serve as the basis to challenge the validity of a patent. Ultimately, as the DOJ/FTC Comments explain, “when issued patents provide certainty regarding their validity and the scope of their claims, . . . [they] facilitate market transactions benefiting competition.”
In the midst of a heated legislative debate, the merits of the underlying patent system can sometimes be overlooked. The DOJ/FTC Comments should help bring back into focus the value of the patent system to our economy.