Industry groups and consumer advocates will watch closely Thursday when the FTC expects to vote on streamlining internal Magnuson-Moss rulemaking procedures. An affirmative vote could set the stage for an agency rulemaking on privacy, a proposal for which Democrat and Republican commissioners have shown interest (see 2102120046).
Karl Herchenroeder
Karl Herchenroeder, Associate Editor, is a technology policy journalist for publications including Communications Daily. Born in Rockville, Maryland, he joined the Warren Communications News staff in 2018. He began his journalism career in 2012 at the Aspen Times in Aspen, Colorado, where he covered city government. After that, he covered the nuclear industry for ExchangeMonitor in Washington. You can follow Herchenroeder on Twitter: @karlherk
Senate Antitrust Subcommittee Chair Amy Klobuchar, D-Minn., is “actively working” to introduce at least one, possibly more, of the six antitrust bills the House Judiciary Committee passed last week (see 2106240071). Klobuchar’s Merger Filing Fee Modernization Act (S-228) passed Wednesday with the House package of antitrust legislation (see 2106240071). “It just shows the momentum” for updating U.S. antitrust law, she told us Thursday. Klobuchar wouldn’t specify which House bill she plans to introduce. “I think there will be others as well,” she said.
The House Judiciary Committee wrapped up the previous day’s markup Thursday by passing its sixth antitrust bill aimed at Big Tech competition (see 2106230063). The Merger Filing Fee Modernization Act (HR-3843), passed 29-12. Republicans voting yes: House Antitrust Subcommittee ranking member Ken Buck, Colo., and Reps. Matt Gaetz, Fla.; Chip Roy, Texas; Victoria Spartz, Ind.; and Burgess Owens, Utah. The State Antitrust Enforcement Venue Act, passed 34-7. Republicans voting no on HR-3460: Darrell Issa, Calif.; Tom McClintock, Calif.; Thomas Massie, Ky.; and Michelle Fischbach, Minn. Democrats voting no: Zoe Lofgren, Eric Swalwell and Lou Correa, all from California. The Augmenting Compatibility and Competition by Enabling Service Switching Act, passed 25-19. Republicans voting yes: Buck, Gaetz and Owens. Democrats voting no: Lofgren, Swalwell and Correa. HR-3826, the Platform Competition and Opportunity Act, passed 23-18. Republicans voting for HR-3849: Buck, Gaetz and Dan Bishop, N.C. Democrats voting no: Lofgren, Swalwell and Correa. The American Choice and Innovation Online Act, passed 24-20. Republicans voting for HR-3816: Buck, Gaetz and Owens. Democrats voting no: Lofgren, Swalwell, Correa and Greg Stanton, Ariz. The Ending Platform Monopolies Act (HR-3825) passed 21-20. Republicans voting yes: Buck and Gaetz. Democrats voting no: Lofgren, Swalwell, Correa and Stanton. House Speaker Nancy Pelosi, D-Calif., told reporters there was “concern on both sides of the aisle about the consolidation of power of the tech companies, and this legislation is an attempt to address that.” Republicans plan to introduce alternative legislation to hold Big Tech accountable, said House Judiciary Committee ranking member Jim Jordan, R-Ohio: “Rather than address Republican concerns of bias and censorship on the internet, Democrats spent the last two days pushing radical antitrust legislation that will systematically change the United States economy.”
The House Judiciary Committee passed bills aimed at Big Tech competition. Members from both parties in interviews defended the committee’s decision to move forward with Wednesday’s markup, despite industry's calls for delay (see 2106220061). The committee was deliberating four other pieces of legislation at our deadline.
Bipartisan legislation scheduled for House Judiciary Committee markup Wednesday would upend centuries of U.S. antitrust law and harm consumers, industry groups said this week. Antitrust Subcommittee ranking member Ken Buck, R-Colo., urged Republicans to come together and hold Big Tech accountable. Senate Antitrust Subcommittee ranking member Mike Lee, R-Utah, accused House progressives of taking advantage of conservatives’ “justified anger” against Silicon Valley.
Senate Intellectual Property Subcommittee Chairman Patrick Leahy, D-Vt., expressed confidence in the Patent and Trademark Office and the Patent Trial and Appeal Board at a subcommittee hearing Tuesday, a day after a key Supreme Court decision (see 2106210036). Leahy said he respects the U.S. v. Arthrex ruling and has confidence the PTO and PTAB will carry out their duties for the Leahy-Smith America Invents Act. The law shifted the U.S. from a first-to-invent system to a first-to-file system. Leahy said Congress must continue to address patent quality issues on the front end. A strong patent system that protects American inventions is critical to economic success, job creation and global competitiveness, said ranking member Thom Tillis, R-N.C. Tillis suggested Congress should consider creating a “gold-plated” patent with a more rigorous, more costly examination process to ensure patents are truly innovative and the innovation is “virtually impossible” to challenge. To improve patent quality, University of Utah law professor Jorge Contreras suggested Congress increase PTO “vigilance to detect potentially inoperable inventions,” heighten examination requirements, allow more public input and increase penalties for fraud. “Strong patents encourage and protect innovation, and are critical to our overall economy,” said Acushnet Company Vice President-Patents Troy Lester. “Overly broad patents, in contrast, are detrimental to U.S. manufacturing companies, often stifling innovation.” Instead of wasting “resources of our nation’s industries on low quality patents, we need to implement ways to improve patent quality on the front end,” said Cree Chief IP Counsel Julio Garceran.
Senate Commerce Committee Chair Maria Cantwell, D-Wash., and ranking member Roger Wicker, R-Miss., are having staff-level discussions about a legislative response to the Supreme Court striking down FTC Act Section 13(b) authority (see 2104260065), they told us. Cantwell previously said she wants to move quickly on legislation to bolster the agency’s authority. The committee has bill language, but “I don’t know when we’re rolling it out,” Cantwell told us. Wicker confirmed the staff discussions.
Patent Trial and Appeal Board judges are unconstitutionally appointed, and granting the Patent and Trademark Office director more discretion to review PTAB decisions would cure the problem, the Supreme Court ruled Monday in U.S. v. Arthrex (19-1434). The Constitution “forbids the enforcement of statutory restrictions on the Director that insulate the decisions of [administrative patent judges] APJs from his direction and supervision,” Chief Justice John Roberts wrote for the majority. “To be clear, the Director need not review every decision of the PTAB. What matters is that the Director have the discretion to review decisions rendered by APJs.” Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Roberts in the majority opinion on parts I and II. Alito, Kavanaugh and Barrett joined Roberts for an opinion on part III. Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Clarence Thomas and Gorsuch dissented to varying degrees. Gorsuch filed an opinion concurring in part and dissenting in part. Breyer filed an opinion concurring in the judgment in part and dissenting in part, with Sotomayor and Kagan joining. Thomas filed a dissenting opinion with Breyer, Sotomayor and Kagan joining for parts I and II. The high court ruled the appointments unconstitutional on the question of whether the authority of APJs to “issue decisions on behalf of the Executive Branch is consistent with the Appointments Clause of the Constitution.” Arthrex argued “APJs were principal officers who must be appointed by the President with the advice and consent of the Senate, and that their appointment by the Secretary of Commerce was therefore unconstitutional,” according to the filing. Computer & Communications Industry Association Patent Counsel Josh Landau disagreed that “PTAB judges were not already subject to sufficient supervision by the Director” but welcomed the court’s “simple, common-sense revision that provides for Director review.” DOJ and an attorney for the company didn’t comment.
Senate Republicans are optimistic about working with new FTC Chair Lina Khan (see 2106160056) on antitrust and other issues, they said in interviews Thursday. Democrats also welcomed the appointment, with Sen. Elizabeth Warren, Mass., saying the agency needs to take advantage of its 3-2 Democratic majority before Commissioner Rohit Chopra leaves for the Consumer Financial Protection Bureau (see 2101190019). See here for news on Khan ascending Tuesday to chair.
Senate Commerce Committee ranking member Roger Wicker, R-Miss., plans to introduce legislation to regulate online platforms like common carriers, he told us Monday. Citing a recent opinion from Supreme Court Justice Clarence Thomas advocating for such (see 2104090046), Wicker hoped to introduce the bill this week.