The USTR's Veto of the ITC Exclusion Order Against Apple: My Reaction to Some of the Reactions

The Essential Patents Blog has a good round-up of reactions to the USTR's veto this past Saturday of the ITC exclusion order against Apple.  And Patently-O asks whether it is time to end the ITC's jurisdiction over patent investigations altogether to avoid the injection of politics into these matters.  

My own view, as I expressed in a paper and in this blog earlier this year, is that it is questionable whether we need a body like the ITC at all, given the availability of infringement actions in federal court.  (To my knowledge, the only other nation that has anything like an ITC to deal with border measures is, coincidentally, South Korea.)  But if we're going to have one, it makes sense to take the "public interest" factor seriously, which is all I read the USTR to be doing here.  And there are good reasons to favor a general rule against awarding injunctions in cases involving standard essential patents, subject to a few exceptions as noted by the USTR in his letter quoting the USDOJ/USPTO January 8, 2013 Policy Statement.  See generally Colleen V. Chien et al., RAND Patents and Exclusion Orders: Submission of 19 Economics and Law Professors to the International Trade Commission, (July 19, 2012), available here.  So forgive me if I can't take altogether seriously the "sky-is-falling" sentiments expressed by a few of the commentators quoted in the Essential Patents and Patently-O posts cited above, such as that the ruling "undermines protection for intellectual property” and is protectionist.  To be sure, the ITC is designed in part to be protectionist, insofar as one of the requirements for commencing an ITC proceeding is injury to a "domestic industry."  (Here, that "domestic industry" is Samsung, which sells products in the U.S. and performs some of its operations here.  Generally, it isn't all that difficult a requirement for a multinational corporation to meet.) That protectionism is one of its faults of the ITC system and a reason to question whether the ITC should exist at all.  But the USTR's rationale should apply, and let's hope it does, in other cases involving standard essential patents, whether the IP owner is principally foreign or domestic. 

Perhaps more generally, the idea that more and stronger intellectual property protection is always better for innovation is, I think, ludicrous.  It never fails to surprise me the extent to which disputes within patent law--the body of law that supposedly has the closest relationship with science--are so often grounded in the assumption, not supported by empirical evidence, that any diminution of patent protection will necessarily harm innovation.  It's as if scientists still believed that aether pervaded the universe, notwithstanding their inability to detect its presence . . . .