Markets Wired

FTC Files Amicus Brief With the U.S. Court of Appeals for the Federal Circuit in Princo Corp. v. ITC

The Federal Trade Commission has filed an amicus brief in Princo Corp. v. ITC (No. 2007-1386) before the U.S. Court of Appeals for the Federal Circuit. The case involves Princo’s appeal of a decision by the International Trade Commission that banned Princo’s import of recordable and rewritable compact discs because they infringed patents held by Philips Corporation. In its appeal, Princo claims that Philips’s patents cannot be enforced because Philips committed “patent misuse” by conspiring with another company to impose licensing restrictions that had the effect of blocking the development of alternative technologies, and therefore stifled the emergence of new competition.

The FTC’s brief does not support either of the parties. The brief states that, to the extent the Court draws on antitrust law to resolve the “patent misuse” claim, it should recognize that pro-competitive efficiencies may justify some competitive restraints, but only if they are reasonably necessary to facilitate a productive collaboration between companies, such as a joint venture to invent, develop and commercialize new technologies

The brief also emphasizes that, under the flexible “rule of reason” framework that is used to analyze antitrust cases, some “inherently suspect” business practices may be deemed anticompetitive without any elaborate analysis of market power or proof of actual harm to competition. The FTC takes no position on whether, in this or other patent misuse cases, other patent law considerations might warrant applying different standards than those used in antitrust law.

The FTC vote approving the amicus brief filing was 4-0. The brief was filed on February 16, 2010. A copy of the filing can be found on the FTC’s Web site and as a link to this press release. (FTC File No. P082105; the staff contact is David L. Sieradzki, Office of General Counsel, 202-326-2092.)

FTC Approves Final Consent Order in Matter of Agrium Inc.’s Acquisition of CF Industries

Following a public comment period, the Federal Trade Commission has approved a final consent order in the matter concerning Agrium Inc.’s acquisition of CF Industries Holdings, Inc. The final order settles charges that the deal would have eliminated competition in the North American market for anhydrous ammonia fertilizer, a product that farmers rely on to grow their crops.The FTC vote approving the final order was 4-0. (FTC File No. 091-0068; Docket No. C-4277; the staff contact is Robert S. Tovsky, Bureau of Competition, 202-326-2634. See press release dated December 23, 2009, at http://www.ftc.gov/opa/2009/12/agrium.shtm.)

Copies of the documents mentioned in this release are available from the FTC’s Web site at http://www.ftc.gov and from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. Call toll-free: 1-877-FTC-HELP.

(FYI 7.2010.wpd)