This discussion illustrates the way incumbent businesses use 20th Century administrative state remedies to erect barriers to competition from 21st Century upstarts. It also shows the way administrative law is framed by ethical considerations (“unfair” competition) and in turn shapes our sense of the ethics of competition. >>>
LINK: The Patent Case that Threatens the Internet (by K. WILLIAM WATSON in Cato At Liberty)
The Court of Appeals for the Federal Circuit heard oral arguments today in a case about dental retainers that could threaten the free flow of information over the Internet. The question is whether the U.S. International Trade Commission has the authority to bar the “importation” of digital transmissions. The case has serious implication for the future of 3D printing, internet service providers’ liability for copyright piracy, and the internet’s global infrastructure.
The ITC has the power to ban imports to prevent “unfair competition” and has become a popular venue to enforce U.S. patents.
The purpose of the ITC’s patent enforcement power is to make sure that U.S. companies have a remedy against foreign infringers who are otherwise unreachable by a domestic court. That’s why the ITC’s remedy is a ban on future imports rather than money damages for past infringement like you would get in federal district court. But the bulk of the ITC’s caseload, including the Align case, involves disputes between parties that can and do sue each other in U.S. courts.
What do you think?