FTC Commissioners Weigh In On FRAND Debate

Two weeks ago, Federal Trade Commission (FTC) Chairwoman Edith Ramirez, writing on her own behalf, submitted comments in Investigation No. 337-TA-613, Certain 3G Mobile Handsets and Components Thereof (the 613 Investigation) on how the International Trade Commission (ITC) should approach the adjudication of the FRAND defense when conducting the public interest analysis. Last week, two FTC Commissioners added their voices to the ongoing public conversation on the FRAND defense, and on the competing concerns about patent hold-up and patent hold-out that animate the debate. In their Reply Submission on The Public Interest, Commissioners Maureen Ohlhausen and Joshua Wright recommend against a public interest analysis that presumes that patent hold-up is a prevalent problem in the real world, "and instead support Administrative Law Judge (ALJ) Essex's evidence-based approach to the public interest inquiry."