Published: 7/1/12
This article presents a unanimous view from scholars of economics, antitrust and IP—including former lawyers and chief economists at the U.S. Department of Justice, a former executive official at the Patent and Trademark Office, a former counsel at the International Trade Commission, and a former member of the President’s Council of Economic Advisers—all of whom “agree that ITC exclusion orders generally should not be granted under § 1337(d)(1) on the basis of patents subject to obligations to license on [FRAND] terms.” Such exclusion orders “would undermine the significant pro-competitive and pro-consumer benefits that RAND promises produce and the investments they enable. A possible exception may arise if district court jurisdiction is lacking, the patent is valid and infringed, and the public interest favors issuing an exclusion order.”