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Patent Law Reform and Competition Policy: A 

Federal Trade Commission Perspective

Remarks by Alden F. Abbott

General Counsel, Federal Trade Commission

Before the IP Watchdog Institute Patent Masters Symposium

Washington, D.C.

March 25, 2019
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Introduction

Good Afternoon. Thank you, Gene, and your colleagues from IP Watchdog for having invited 

me to address this great conference. Today I will focus on the interaction between patent law 

reform and competition policy, with particular regard to questions of patentability raised by 

proposals to reform Section 101 of the Patent Act (“Section 101”), which specifies what subject 

matter is patentable. My remarks are solely attributable to me, and should not be taken to 

represent the views of the Federal Trade Commission or of any individual Federal Trade 

Commissioner.

After briefly describing the interrelationship between patent law and antitrust law, I will 

highlight the role of the Federal Trade Commission’s policy interest in the structure of the law 

bearing on patentability. That interest is substantial, reflecting the reality that legal rules 

governing patents – and the use of patents in the economy – have a profound effect on the 

competitive process and innovation. In particular, I will focus on how Section 101 reform might 

enhance the vibrancy of competition. Let me caution that my remarks are meant to be a bit 

provocative and speculative, aimed at furthering a broader dialogue. I obviously cannot speak 

for the Patent and Trademark Office, which administers our patent law system. 

The Patent-Antitrust Interface1

 1 This section of my remarks draws heavily on Alden F. Abbott, Key Patent Reforms Needed to Spur U.S. 

Innovation, HERITAGE FOUNDATION LEGAL MEMORANDUM NO. 215 (Sept. 29, 2017), 

https://www.heritage.org/sites/default/files/2017-09/LM-215.pdf. 
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The U.S. patent system, rooted in the Constitution, plays a key role in American innovation and 

economic growth. The Intellectual Property Clause (IP Clause) of the U.S. Constitution 

authorizes Congress “[t]o promote the Progress of Science and useful Arts, by securing for 

limited Times to Authors and Inventors the exclusive Right to their respective Writings and 

Discoveries.”2 Constitutional history indicates that the Framers understood inventors as having a 

private property interest in the fruits of the innovations produced by their labor (a form of 

“intellectual property”) and provided a specific means for that interest to be protected through 

legislation enacted pursuant to the IP Clause.

Reflecting that understanding, and underscoring the importance of the patent-property interest, 

the first Congress in 1790 enacted a law providing for the issuance and protection of patents. 

Subsequent Congresses built on that initial law and expanded the scope of patent protection, and 

early Supreme Court jurisprudence manifests a clear and consistent understanding that patents 

are valuable property and merit great respect. Thus, the firm recognition and robust support of a 

patent system to encourage innovation is rooted in our constitutional system.

The importance of patents has not diminished over time. To the contrary, patents played a central 

role in supporting the industrial revolution in 19th-century America and were associated with 

key U.S. innovative breakthroughs in the 20th and early 21st century as well. Throughout these 

periods, litigation over the boundaries of patent rights played a central role in the sorting out of 

legal rights in new industries. Indeed, lawsuits went hand-in-hand with patent-enabled 

breakthroughs that allowed for the introduction and widespread adoption of new products that 

fundamentally transformed American industry (sewing machines in the 1800s; telephones, 

 2 U.S. Const., art. I, § 8, cl. 8.
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airplanes, and electrical equipment in the 1900s; and smartphones in the 2000s—just to name a 

few).

3

 Over the 1995–2015 period, patent licensing by academic and nonprofit institutions 

contributed $1.33 trillion to U.S. gross industry output; $591 billion to the gross domestic 

product; and supported 4,272,000 American jobs.

4

 

While individual patents consistently have been the subject of legal disputes over time, patents as 

a whole have clearly been at the heart of successive waves of critically important American 

commercial innovation and continue to make enormous contributions to the American economy. 

Consistent with the American historical experience, published economic research, covering 

many countries and extended time periods, is broadly consistent with the proposition that robust 

national systems of patent protection spur innovation.5

Let me turn now to antitrust. Although they are not mentioned in the Constitution, the antitrust 

laws, similar to patent law, have long been seen as holding a special status in the federal 

statutory hierarchy. The U.S. Supreme Court, for example, famously stated that “[a]ntitrust laws 

in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.”6 

Properly understood, antitrust is not in conflict with patent law. Rather, applied in an appropriate 

fashion, antitrust law complements patent law to stimulate innovation. Antitrust does this by 

 3 See generally Adam Mossoff, The Sewing Machine Patent Wars, SLATE (Dec. 2013), 

http://www.slate.com/articles/technology/future_

tense/2013/12/sewing_machine_patent_wars_of_the_1850s_what_they_tell_us_about_the_patent.html. 4 See Joseph Allen, Academic Patent Licensing Helps Drive the U.S. Economy, IP WATCHDOG (June 20, 2017) 

(discussing an economic study produced by academic experts), http://www.ipwatchdog.com/2017/06/20/academicpatent-licensing-helps-drive-u-s-economy/id=84778/. 5 See generally, e.g., Maureen K. Ohlhausen, Patent Rights in a Time of Intellectual Property Rights Skepticism, 30 

HARV. J.L. & TECH. 103, 131 (2016) (summarizing economic studies and concluding that “voluminous evidence 

links stronger patents with greater R&D investment at the firm level and richer macroeconomic growth”).

6 United States v. Topco Assocs., Inc., 405 U.S. 596, 610 (1972).
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safeguarding a vigorous competitive process – a process that is vital to enabling the innovators 

who develop patents, and the parties with whom they transact, to thrive in the marketplace and 

benefit American consumers. The two federal antitrust agencies, the U.S. Department of Justice

(DOJ) and the Federal Trade Commission (FTC), succinctly described the complementary nature 

of antitrust and intellectual property law (which includes patent law) in a joint report issued in 

2007, stating: “antitrust and intellectual property are properly perceived as complementary 

bodies of law that work together to bring innovation to consumers: antitrust laws protect robust 

competition in the marketplace, while intellectual property laws protect the ability to earn a 

return on the investments necessary to innovate. Both spur competition among rivals to be

the first to enter the marketplace with a desirable technology, product, or service.”7

 This 

statement continues to reflect federal antitrust enforcers’ consensus view on the interplay of 

those two bodies of law.8 

Since the late 1970s, mainstream American antitrust law (as reflected in U.S. Supreme Court 

decisions, enforcement policies, and scholarship) has emphasized the promotion of vigorous 

competition on the merits, with an eye to the ultimate goal of advancing consumer welfare. The

focus has been on challenging only those business actions that harm the competitive process. 

Efficient business practices that harm individual competitors—but not the competitive process—

have not been challenged. Indeed, efficient business practices by a monopolist that allows it to 

 7 U.S. DEP’T OF JUSTICE & FED TRADE COMM’N, ANTITRUST ENFORCEMENT AND INTELLECTUAL PROPERTY RIGHTS: 

PROMOTING INNOVATION AND COMPETITION 2 (Apr. 2007). 8 See, e.g., Makan Delrahim, Assistant Attorney General, Antitrust Division, U.S. Dep’t of Justice, Remarks at the 

19th Annual Berkeley-Stanford Advanced Patent Law Institute, Palo Alto, California 3 (Dec. 7, 2018), 

https://www.justice.gov/opa/speech/file/1117686/download; U.S. DEP’T OF JUSTICE & FED TRADE COMM’N,

ANTITRUST GUIDELINES FOR THE LICENSING OF INTELLECTUAL PROPERTY 2 (2017) (2017 GUIDELINES), 

https://www.ftc.gov/system/files/documents/public_statements/1049793/ip_guidelines_2017.pdf. 
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maximize its profits are perfectly permissible, as the Supreme Court emphasized in its 

unanimous landmark 2004 Verizon v. Trinko decision.

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The antitrust treatment of patents has varied over the past century. The period from the 1940s 

through the 1970s was an era of patent skepticism, during which antitrust enforcers viewed 

patents as problematic “monopolies” and adopted a critical view of almost all patent holders’

contractual restrictions. From the early 1980s to the present, however, American antitrust 

enforcers generally have viewed patents in a much more favorable light. The enforcement 

agencies see patents as legitimate property rights that play an important roles in spurring 

innovation. As such, enforcers have recognized the right of patentees to seek to maximize the 

returns to their legally protected property interests, as long as patents are not deployed in a 

manner that undermines free market competitive forces.

The modern rejection of the notion that patents are problematic monopolies that merit special 

antitrust scrutiny is embodied in the consensus view of patent licensing found in the 1995 

Antitrust Guidelines for the Licensing of Intellectual Property, issued jointly by the U.S. Justice 

Department (DOJ) and the U.S. Federal Trade Commission (FTC),10 the two federal antitrust 

agencies. The Guidelines explained: (1) for the purpose of antitrust analysis, the DOJ and FTC 

regard a patent as being essentially comparable to any other form of property; (2) the DOJ and 

FTC do not presume that a patent creates market power in the antitrust context; and (3) the DOJ 

 9 Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) (“”[t]he mere 

possession of monopoly power, and the concomitant charging of monopoly prices, is not . . . unlawful”). 

10 U.S. DEP’T OF JUSTICE & FED TRADE COMM’N, ANTITRUST GUIDELINES FOR THE LICENSING OF INTELLECTUAL 

PROPERTY (Apr. 1995), https://www.justice.gov/atr/archived-1995-antitrust-guidelines-licensing-intellectualproperty. The 1995 Guidelines refer generally to “intellectual property,” which includes copyrights and trademarks 

as well as patents, but most such licensing that gave rise to antitrust scrutiny involved, and continues to involve, 

patents.
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and FTC recognize that patent licensing allows firms to combine complementary factors of 

production and is generally procompetitive. The core findings and analysis of the 1995 

Guidelines were reaffirmed in a 2017 revised version of the Guidelines,11 also jointly released by 

the FTC and the DOJ. 

The fact that antitrust and patent law work are now recognized to be complementary, does not, 

however, mean that business practices involving patents will never be challenged under the 

antitrust laws. As Professor Herbert Hovenkamp, author of the leading American antitrust 

treatise, points out:

[T]he antitrust LAWS and the federal intellectual property laws must be interpreted so as 

to accommodate one another. Importantly, the United States has both a patent policy and 

an antitrust policy, and neither should be interpreted in such a way as to disregard the 

other. . . . Simple legality under the patent laws cannot be decisive of an antitrust 

question, although clear authorization under the patent laws generally is decisive.12 

In a similar vein, the 2017 FTC-DOJ Guidelines explain:

As with other forms of private property, certain types of conduct with respect to 

intellectual property may have anticompetitive effects against which the antitrust laws 

can and do protect. The exercise of intellectual property rights is thus neither particularly 

free from scrutiny under the antitrust laws, nor particularly suspect under them.13

 11 See 2017 GUIDELINES, note 8 supra. 12 HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY 314 (5th ed. 2016) (emphasis in the original). 13 2017 GUIDELINES, supra note 8, at 3.
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In what way may patent-related transactions raise antitrust questions? The FTC will not hesitate 

to investigate agreements (including mergers) where it is alleged that patents are being used to 

reduce competition among technologies or products – that is, competition “not on the merits” 

that undermines the free market competitive process. Conduct not involving “competition on the 

merits” may arise in a wide variety of settings, including patent pools, standard setting, mergers, 

licensing, settlements of patent litigation, and a host of other transactions. The FTC has been an 

active enforcer in the patent-antitrust area.14 In investigating patent-related transactions, suffice 

it to say that the FTC fully takes into account transaction-specific efficiencies, including in 

particular dynamic competition that would be promoted by the conduct under assessment. A 

more detailed exploration of the antitrust analysis of patent issues is, however, beyond the scope 

of today’s remarks.

Patent Law Reform, Patents, and Competition

Leaving antitrust law behind, let me turn now to the law governing patents and the competitive 

process. The FTC has a vital interest in competition policy writ large, not just in antitrust 

enforcement, as exemplified by its long history of holding hearings and issuing reports on a wide 

variety of topics bearing on competition – including patent policy.

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 14 For example, “f]or over twenty years and on a bipartisan basis, the Commission has prioritized ending 

anticompetitive reverse-payment agreements in which a brand-name drug firm pays its potential generic rival to give 

up its patent challenge and agree not to launch a lower cost generic product.” Oversight of the Antitrust

Enforcement Agencies: Hearing before the Subcomm. on Reg. Reform, Commercial and Antitrust Law of the House 

Comm. on the Judiciary, 115th Cong., Prepared Statement of the Fed. Trade Comm’n 6 (Dec. 12, 2018), 

https://www.ftc.gov/system/files/documents/public_statements/1433736/p180101_commission_testimony_re_oversi

ght_house_12122018.pdf. 15 The FTC issued its first major report on the relationship between patent law and competition policy in October 

2003, following two years of hearings. See FED TRADE COMM’N, TO PROMOTE INNOVATION: THE PROPER 
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A key way in which patents enhance competition is by serving as “beacons” for the investment 

capital that is vital to financing new products and processes and improving existing market 

offerings – and thereby promoting competitive vigor. Former U.S. International Trade 

Commissioner and George Washington University Law School Professor Scott Kieff has 

described this “commercialization approach” to patent law as engendering a procompetitive

expansion of market offerings that also benefits smaller market participants:

The commercialization approach sees property rights in IP serving a role akin to beacons 

in the dark, drawing to themselves all of those potential complementary users of the IPprotected-asset to interact with the IP owner and each other. This helps them each 

explore through the bargaining process the possibility of striking contracts with each 

other. . . . Such successful coordination may help bring new business models, products, 

and services to market, thereby decreasing anticompetitive concentration of market 

power. It also can allow IP owners and their contracting parties to appropriate the returns 

to any of the rival inputs they invested towards developing and commercializing creations 

or inventions—labor, lab space, capital, and the like. At the same time, the government 

can avoid having to then go back to evaluate and trace the actual relative contribution that

each participant brought to a creation’s or an invention’s successful commercialization—

including, again, the cost of obtaining and using that information and the associated risks 

of political influence—by enforcing the terms of the contracts these parties strike with 

each other to allocate any value resulting from the creation’s or invention’s 

commercialization. In addition, significant economic theory and empirical evidence 

 BALANCE OF COMPETITION AND PATENT LAW AND POLICY (Oct. 2003), 

https://www.ftc.gov/sites/default/files/documents/reports/promote-innovation-proper-balance-competition-andpatent-law-and-policy/innovationrpt.pdf. 
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suggests this can all happen while the quality-adjusted prices paid by many end users

actually decline and public access is high. In keeping with this commercialization

approach, patents can be important antimonopoly devices, helping a smaller “David”

come to market and compete against a larger “Goliath.”16 

In order for the commercialization approach to work well, however, patents should provide clear 

notice of what they cover and parties considering engaging in patenting activity should have a 

good idea of what is patentable. What happens when rules governing notice and patentability are 

defective? 

A lack of clear notice generates uncertainty about the scope of the patent right subject to bargain 

– in other words, the patent beacon is defective and sheds an undesirably weak spotlight that may 

discourage potential transactors. A 2011 FTC report17 put forth recommendations for the courts 

and PTO directed at improving the notice function. 

Confusion about what is patentable is particularly pernicious. It may discourage inventors from 

dedicating their efforts to technological fields where the availability of patents is in doubt – thus, 

patent beacons in those fields may never be generated in the first place. 

 16 Views of the Hon. F. Scott Kieff, Commissioner, U.S. Int’t Trade Comm’n, on the U.S. Fed Trade Comn’n’s and 

the U.S. Dep’t of Justice Antitrust Division’s Joint Guidelines for the Licensing of Intellectual Property 5 (Sept. 23, 

2016) (footnote citation omitted), https://www.justice.gov/atr/file/897081/download. 17 FED TRADE COMM’N, THE EVOLVING IP MARKETPLACE: ALIGNING PATENT NOTICES AND REMEDIES WITH 

COMPETITION (MAR. 2011), https://www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplacealigning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf. 
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Confusion about what is patentable lies at the heart of recent discussions of reform to Section 

101 of the Patent Act18 – the statutory provision that describes patentable subject matter. Section 

101 plainly states that “[w]hoever invents or discovers any new and useful process, machine, 

manufacture, or composition of matter, or any new and useful improvement thereof, may obtain 

a patent therefor, subject to the [other] conditions and requirements of this title.” This language 

basically says that patentable subject matter covers everything new and useful that is invented or 

discovered. For many years, however, the Supreme Court has recognized three judicially created 

exceptions to patent eligibility, providing that you cannot patent: (1) laws of nature, (2) natural 

phenomena, or (3) abstract ideas. Even with these exceptions, the scope for patentability was 

quite broad from 1952 (when the modern version of the Patent Act was codified) until roughly 

2010.

But over the past decade, the Supreme Court has cut back significantly on what it deems patent 

eligible, particularly in such areas as biotechnology, computer-implemented inventions, and 

software. As a result, today “there are many other parts of the world that have more expansive 

views of what can be patented, including Europe, Australia, and even China.”19 A key feature of 

the changes has been the engrafting of case law requirements that patentable eligible subject 

matter meet before a patent is granted, found in other sections of the Patent Act, onto the 

previously very broad language of Section 101. 

In a December 2016 speech, Senator Christopher Coons (D–DE) addressed the nature of the 

problem:

 18 35 U.S. Code § 101. 19 Gene Quinn, Patentability Overview: When Can an Invention be Patented?, IP WATCHDOG (June 3, 2017), 

http://www.ipwatchdog.com/2017/06/03/patentability-invention-patented/id=84071/. 
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Until recently, Section 101 of the Patent Act of 1952 acted as a coarse filter, with 

the remaining patentability requirements of Title 35 [the U.S. statutory patent 

provisions] doing the heavy lifting on whether a patent should issue. This 

arrangement let examination focus on whether the inventor had disclosed enough 

information and whether he or she had made a sufficient advancement in science 

or technology. Over the last eight years, however, a series of Supreme Court 

decisions on Section 101 have substantially moved the line on what is patenteligible. These rulings have created uncertainty about the validity of previously 

issued patents, many of which companies have already relied upon to justify 

significant research and development investments. Our current problem appears 

twofold. First, courts are calling into question whether patents should be granted 

at all to inventions made in critical areas of our innovation economy, namely 

medical diagnostics and computer software. Second, the manner in which case 

law has been developing is creating profound uncertainty on what is and what is 

not patentable. Whether or not one gets a patent or that patent survives in court 

should not depend on which patent examiner your case is assigned to, or what 

judge you appear in front of. Such ambiguity has serious implications in the 

investment sector, where confidence is essential. If we are regularly seeing such 

levels of inconsistency, then we have an area where the jurisprudence is 

insufficiently clear, and which may necessitate congressional action to provide 

clarity and consistency.20

 20 Sen. Chris Coons, A Few Thoughts on the Supreme Court’s Section 101 Jurisprudence, IP WATCHDOG (Feb. 8, 

2017), http://www.ipwatchdog.com/2017/02/08/thoughts-supreme-courts-section-101-jurisprudence/id=78166/. 
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Senator Coons went on to summarize what he deemed the bad likely consequences of the 

newfound uncertainty regarding what is patentable subject matter: (1) reduced research and 

development, undermining American preeminence in emerging technologies; (2) direct harm to 

Americans, as lack of patentability slows the incentive to develop valuable innovative products 

(such as diagnostic tools for such costly and tragic diseases as Alzheimer’s); (3) more reliance on 

trade secret protection instead of patent protection, inhibiting useful business collaborations and 

reducing the stock of innovation-inducing publicly available information; and (4) new ambiguity 

about what is patentable, yielding costly uncertainty for inventors, patent examiners, and judges. 

Put simply, what is at stake is harm to the competitive process – both dynamic competition and 

economic efficiency. This harm is manifested in a slower and less effective introduction of new 

and/or improved marketplace offerings. It also is reflected in a reduced volume of valuable 

information available in the marketplace – and in higher uncertainty that tends to discourage 

mutually beneficial welfare-enhancing market transactions. 

Over the last two years, patent scholars, trade associations, and the USPTO have devoted 

considerable attention to addressing the “Section 101 problem.” Those efforts are beginning to 

bear fruit, in terms of new PTO guidance and in farther-reaching discussions of possible 

statutory reform. 
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In January 2019, the PTO provided revised guidance for use by USPTO personnel in evaluating 

Section 101 subject matter eligibility.21 This revises the procedures for determining whether a 

patent claim or patent application claim is directed to a judicial exception (laws of nature, natural 

phenomena, and abstract ideas) under the USPTO's Subject Matter Eligibility Guidance in two 

ways. First, the 2019 Revised Patent Subject Matter Eligibility Guidance explains that abstract 

ideas can be grouped as, e.g., mathematical concepts, certain methods of organizing human 

activity, and mental processes. Second, this guidance explains that a patent claim or patent 

application claim that recites a judicial exception is not “directed to” the judicial exception if the 

judicial exception is integrated into a practical application of the judicial exception. 

The revised guidance is a salutary development, but its net impact is yet to be determined. 

Former Federal Circuit Chief Judge Paul Michel has pointed out:

Without doubt, the Section 101 Guidance will restore at least some of the muchneeded clarity to patent eligibility. . . . An important question is whether the 

courts will follow or be persuaded by the Guidance. USPTO guidance on 

substantive issues of patent law is not controlling, and the courts will not be 

bound by it, as it may not be correct in all instances. But the courts should find 

the Guidance persuasive, at least. Given the years of jurisprudential confusion, 

 21 USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019), 

https://www.federalregister.gov/documents/2019/01/07/2018-28282/2019-revised-patent-subject-matter-eligibilityguidance. 
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the courts ought to give serious weight to the USPTO’s careful consideration of 

these issues.22

In other words, revised PTO guidance, while helpful, is by its nature limited in scope, being 

subject to the Section 101 limitations embodied in recent case law. 

Some patent law experts argue that statutory change would be needed to deal with those 

limitations. In July 2018, the American Bar Association’s Section of Intellectual Property 

submitted a letter to PTO Director Iancu,

23 setting forth the joint views of the Section, the 

American Intellectual Property Law Association (AIPLA), and the Intellectual Property Owners 

Association (IPO) on Section 101 reform statutory reform principles. The letter stated that 

legislative change to Section 101 must involve the following:

▪ To avoid potential confusion between the patentability requirements of novelty

expressed in Section 102 and patent eligibility under Section 101, the term

“new” should be removed from the current version of Section 101.

▪ To clarify that patent eligibility under Section 101 should be found if an

invention or discovery meets the statutory classes of eligibility contained in the

current version of Section 101, Section 101 should provide that an invention

shall qualify, not “may” qualify, if it meets those statutory classes.

 22 Judge Paul Michel, Is 2019 the Year Clarity Returns to Section 101? Judge Paul Michel Is Hopeful, IP 

WATCHDOG, Jan. 24, 2019, https://www.ipwatchdog.com/2019/01/24/2019-year-clarity-returns-section-101-judgepaul-michel-hopeful/id=105566/. 23 Letter from Scott F. Partridge, Chair, ABA Section of Intellectual Property Law, to the Honorable Andrei Iancu, 

Under Secretary of Commerce for Intellectual Property & Director of the United States Patent and Trademark Office

(July 23, 2018), 

https://www.americanbar.org/content/dam/aba/administrative/intellectual_property_law/advocacy/101_joint_princip

les_letter.pdf.
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▪ Congress must make clear that an invention qualifies for patent eligibility if it

falls into one of the existing categories in current Section 101, i.e., if the

invention is a useful process, machine, manufacture, or composition of matter,

or any useful improvement thereof.

▪ Limited statutory exceptions to the qualification of an invention as patent

eligible are appropriate provided those exceptions are written clearly and

narrowly. These exceptions should be subject-matter neutral so as to not

discriminate in favor of or against any field of invention that has been

developed or may be developed in the future.

▪ Patent eligibility is to be determined based upon consideration of the claims of

the patent or application as a whole, without ignoring or reading out any

limitation recited in the claims. Patent eligibility is not to be determined based

on “the gist of the invention” or an assessment of whether the claims define an

“inventive concept.”

▪ Patent eligibility under Section 101 shall not be negated based on considerations 

of patentability defined in Sections 102 [a claimed invention must be “novel”],

103 [a claimed invention must be “non-obvious”] and 112 [a patent must be 

described clearly enough to “enable” its post-expiration use by the public], 

including whether the claims recite elements or subject matter that is considered

“conventional,” “routine,” “well known,” “not unique” or that operates

according to “known principles”, or the like.
17

I take no position on the specific recommendations in this letter, or on any other Section 101 

proposals that may be given consideration. Whatever one’s specific point of view, however, it is 

clear that whether (and, if so, how) Section 101 should be overhauled raises major public policy 

concerns about the nature of the competitive process and, indeed, the future of the American 

innovation-driven economy. The FTC will closely monitor developments in this space, as it does 

in all other aspects of the competition and patent policy interface. 

Conclusion

Let me close by noting that the FTC is nearing the end of public of public Hearings on 

Competition and Consumer Protection in the 21st century.24 This major example of what former 

FTC Chairman William Kovacic has dubbed “FTC policy R&D”25 has involved significant oral 

presentations by experts reflecting a wide variety of viewpoints, and voluminous submissions by 

expert participants and members of the public. The Hearings materials will be carefully studied 

by FTC staff, and undoubtedly will inform future thinking by the Commission on its broad 

enforcement and policy mandates. I should note that session four of the “21st Century Hearings”

(held from October 23-24, 2018) centered on IP topics, with a major emphasis on patents

(although copyright issues also received some attention).

26 

Stay tuned for future pronouncements by the Commission on IP and competition.

 24 Press Release, Fed Trade Comm’n, FTC Announces Hearings on Competition and Consumer Protection in the 21st

Century (June 20, 2018), https://www.ftc.gov/news-events/press-releases/2018/06/ftc-announces-hearingscompetition-consumer-protection-21st. 25 See William E. Kovacic, Measuring What Matters: the Federal Trade Commission and Investments in Policy 

Research and Development, 72 ANTITRUST L.J. 861 (2005). 26 See FTC Hearing #4: Competition and Consumer Protection in the 21st Century (Oct- 23-24, 2018), 

https://www.ftc.gov/news-events/events-calendar/2018/10/ftc-hearing-4-competition-consumer-protection-21stcentury. 
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Thank you for your attention. I look forward to your questions.