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TOTM On November 9, the en banc US Court of Appeals for the Federal Circuit heard oral arguments in an extremely important patent infringement case (mp3 . . .
On November 9, the en banc US Court of Appeals for the Federal Circuit heard oral arguments in an extremely important patent infringement case (mp3 of oral argument here). Hanging in the balance are the very incentives for technological innovation and the seeds of economic progress. The arguments made in the case by the infringer, EchoStar, would have the effect of reducing the certainty and thus the efficacy of patent rights by weakening the ability of the courts to define and enforce patents clearly, quickly and efficiently. While for some commentators this is probably a feature, and not a bug, of EchoStar’s position, I find its stance and its claims to be extremely troublesome.
Read the full piece here.
TOTM The FTC settlement with Intel has been finalized with one change the Commission’s press release describes as follows… Read the full piece here.
The FTC settlement with Intel has been finalized with one change the Commission’s press release describes as follows…
Amicus Brief "EchoStar’s appeal presents a stark choice on the proper method for dealing with a repeat patent infringer against whom the District Court has issued an initial injunction followed by a contempt decree, which between them have yet to provide TiVo with an ounce of effective relief against EchoStar’s unlawful behavior..."
“EchoStar’s appeal presents a stark choice on the proper method for dealing with a repeat patent infringer against whom the District Court has issued an initial injunction followed by a contempt decree, which between them have yet to provide TiVo with an ounce of effective relief against EchoStar’s unlawful behavior. EchoStar takes the position that the entire convoluted six-year history of this dispute should be ignored in passing on the validity of its purported present work- around of TiVo’s ‘389 patent. In so doing, its apparent objective is to win a war of attrition against TiVo. The first part of that strategy is to use its current modified DVR for as long as it can tie up TiVo through tactics of litigation delay that allow it to reap all the collateral gains from patent infringement. Once stopped with the first work-around, it may well repeat the same cycle of delay a second time.
For EchoStar, this approach it is a no-lose strategy. EchoStar wins big if it can persuade a court that its work-around comes close to, but does not cross, the infringement line. EchoStar also wins if it loses a new infringement suit so long as it needs only pay damages that amount to a small fraction of the economic gains it derives from following its unlawful strategy. Then it can start the cycle anew with a second work-around, and, if need be, a third. Unless prompt and decisive measures are taken, EchoStar will profit handsomely from its own wrongdoing…”
TOTM The opinion in Ovation (i.e. FTC v. Lundbeck) is now available. The first footnote in Judge Ericksen’s opinion notes that “the FTC and Minnesota began . . .
The opinion in Ovation (i.e. FTC v. Lundbeck) is now available. The first footnote in Judge Ericksen’s opinion notes that “the FTC and Minnesota began their closing argument by disclaiming the notion that these cases were ‘about unhappiness about the high price of Indocin.’ Nevertheless, the FTC and Minnesota cited in their post-trial response a press release issued by the FTC to announce the action’s commencement. The press release asserts that the acquisition of NeoProfen resulted in the increase of Indocin IV’s price by almost 1300%; characterizes the prices charged by Lundbeck as ‘artificially high;’ and notes one commissioner’s view that Lundbeck’s ‘profiteering on the backs of critically ill premature babies is not only immoral, it is illegal.”
TOTM There are some new developments in the Federal Trade Commission’s consummated merger case brought against Ovation. Namely, the FTC has lost. TOTM readers may recall . . .
There are some new developments in the Federal Trade Commission’s consummated merger case brought against Ovation. Namely, the FTC has lost. TOTM readers may recall that I spent some time criticizing the Federal Trade Commission’s complaint, back in 2008, in FTC v. Ovation in federal district court in Minnesota. As I described the stylized facts back then…
TOTM In the WSJ, Scott Hemphill (Columbia) and Jeannie Suk (Harvard) defend Charles Schumer’s proposed bill, which would extend copyright protection to fashion design… Read the . . .
In the WSJ, Scott Hemphill (Columbia) and Jeannie Suk (Harvard) defend Charles Schumer’s proposed bill, which would extend copyright protection to fashion design…
TOTM One of the first reactions I had when reading the settlement is that it is quite striking how much and at what level of detail . . .
One of the first reactions I had when reading the settlement is that it is quite striking how much and at what level of detail the settlement micro-manages Intel’s business decisions. Lets consider a just a handful of provisions and look at the language in the settlement. Again, I think these provisions should be read with the benefit of some perspective in market performance during the relevant time period.
TOTM Let me add on a few brief observations on the Intel settlement to Dan’s earlier comments, with which I largely agree. There is a lot . . .
Let me add on a few brief observations on the Intel settlement to Dan’s earlier comments, with which I largely agree. There is a lot to say about the settlement: the predatory design aspects, Section 5, the (I found) quite odd self-congratulatory settlement press conference and webcast, and of course, what the settlement means for consumers. I’m very interested in all of these issues, but perhaps none is more important than the last. We cannot simply assume that the settlement equates to a victory for consumers. Readers of this blog will be very familiar with the argument that merely counting cases, or agency activity, and of course settlements, are not reliable measures of the quality of agency performance or meaningful from a consumer welfare perspective. But problems with this case make that warning especially appropriate here. Thus, before delving into some first reactions based on language in the settlement over the days and maybe weeks to come, some perspective is in order.
TOTM While Intel Corporation nears its settlement deadline with the Federal Trade Commission, it received good news from a federal district court in Delaware evaluating the . . .
While Intel Corporation nears its settlement deadline with the Federal Trade Commission, it received good news from a federal district court in Delaware evaluating the evidence of alleged consumer harm from the discounts Intel offers to buyers. It is also very important to note that this pass from a US court applying standards of consumer harm embedded in US Section 2 case law — that is, actual harm to consumers and the competitive process rather than allowing harm to competitors to serve as a sufficient condition for proof of the former — is the first to evaluate the consumer welfare effects of Intel’s conduct from this more rigorous perspective. One has to wonder whether this ruling will shift settlement negotiations in favor of Intel. Its true that the FTC can use Section 5 to evade this Section 2 competitive effects analysis. But not without eventually testing their interpretation of Section 5 in front of a panel at the D.C. Circuit.
