The following is excerpted from a March 7, 2011 FTC press release:
A new Federal Trade Commission report recommends improvements to two areas of patent law policies affecting how well a patent gives notice to the public of what technology is protected and remedies for patent infringement. The report, The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition, emphasizes that the patent system and competition policy share the goal of promoting innovation that benefits consumers.
The new report recognizes that patents play a critical role in encouraging innovation. At the same time, it observes that some strategies by patent holders risk distorting competition and deterring innovation. This is especially true, the report concludes, for activity driven by poor patent notice, and by remedies that do not align the compensation received by patent holders for infringement with the economic value of their patented inventions.
The FTC’s recommendations to improve patent notice include:
> making patent claims more definite and improving the utility of descriptions in patents for delineating their boundaries;
> enhancing the patent examination record as a source for interpreting claim scope; and
> more fully incorporating consideration of third parties’ ability to predict the potential breadth of evolving claims into the administrative and judicial review of the written descriptions of patent applications.
The FTC’s recommendations to courts to improve patent remedies law include:
> capping reasonable royalty damages at the amount a willing licensee would pay, which may be determined by the value of the invention over alternative technologies;
> increasing the role of district courts in excluding unreliable expert testimony on damages from trial; and
> incorporating concerns into the injunction analysis about the leverage that an injunction may give a patentee to obtain royalties exceeding the economic value of an invention.
The report is based on eight days of hearings, public comments, and independent research.
The Commission vote approving the report was 5-0. It can be found here on the FTC website.