Summary
The Federal Trade Commission attracted significant attention five years ago when it issued a report broadly questioning patent system doctrines and procedures. Now, the FTC is back, this time gathering empirical evidence and working to put forward more targeted reforms that could find their way into patent reform legislation.
Analysis
Five years ago, the Federal Trade Commission gave the patent system a helpful push by issuing a far-reaching report that catalogued the modern patent system's many flaws. The FTC questioned patent rules about damages and injunctions, patent procedures used at the Patent Office to evaluate applications, and the like. The result was a strong and important document that not only laid a roadmap for reform, but also attracted substantial attention.
Now, the FTC is back, and it is running a necessary follow-up proceeding where the Commission seems likely to be able to (a) update its recommendations in light of the enormous changes that have taken place within the patent system these last few years; and (b) gather empirical evidence to direct additional changes. The new effort also seems to be wisely pulling new perspectives into the mix; for example, the Chief Judge of the Federal Circuit - excluded last time - was invited to testify early in this process.
In all fairness, many of the problems that the FTC wrote about last time around have been mollified. The Supreme Court and the Federal Circuit deserve credit for that, thanks to cases like Medimmune and KSR. However, there are still important problems that warrant attention; and the FTC is particularly well suited toward gathering data about those problems and thereby arming the next round of patent reform legislation with the information needed to actually craft relevant reforms.
