Ohlhausen Says FTC 'Course Correction' Needed on Costs Burdening Businesses, IP Rights

The FTC made some important strides in protecting competition, said Republican Commissioner Maureen Ohlhausen Tuesday in prepared remarks, but "a course correction" is needed in several areas, including "unnecessary and disproportionate costs" imposed on U.S. businesses and the value of intellectual property rights being discounted. During a discussion of antitrust policy at a Heritage Foundation event, Ohlhausen, who may become the next FTC chair at least on an interim basis (see 1701230043), said the most obvious examples of the Democratic-controlled commission imposing excessive costs on businesses is when it "wrongly sues a firm to potentially devastating effect." But she said pervasive regulation is a "more insidious effect." The FTC isn't a rule-making agency, but she said she worries "about the cost of compulsory process and second requests that firms experience in merger review and similar burdens in consumer protection investigations." She said she would like to convene a meeting with the FTC's Competition and Consumer Protection bureaus to address this issue and "narrow the scope and expense of compulsory process." She said the commission also should approach decisions with a regulatory humility philosophy "that has been absent in the last several years." That approach is something she has talked about often (see 1611160017). On IP rights, Ohlhausen said other countries, especially in Asia, take or permit the taking of U.S. proprietary technologies without payment, and "the FTC has unfortunately contributed to that dynamic." A patent's "essential quality" is the "right to exclude," but Ohlhausen said the commission "sees a competition problem" when patent owners "ask a court to enjoin unlicensed infringers." The commissioner said the FTC "wrongly heeded calls" from tech users who want to pay small royalties, citing the Google-Motorola Mobility case (see 1301040038) and last week's Qualcomm lawsuit (see 1701170065). "I hope that the commission under the Trump administration will act to protect IP rights," she said.