One of the most straightforward steps President Trump can take to steer the ship of state on its new course is to put good people in place throughout the government. This is particularly true if achieving one of his administrations’s stated goal making America economically and creatively great again truly is a high priority. And few appointments are as critical in that vein as those agencies with authority for intellectual property. The low-hanging fruit here is Patent and Trademark Office and Federal Trade Commission leadership. At the FTC, President Trump has already made the salutary move of naming Commissioner Maureen Ohlhausen the agency’s Acting Chairman. This early move was a great first step. The even more significant step would be to name Ms. Ohlhausen the permanent chairman of the FTC and to do so quickly.
My practice is not to write dissenting statements when the Commission, against my vote, authorizes litigation. That policy reflects several principles. It preserves the integrity of the agency’s mission, recognizes that reasonable minds can differ, and supports the FTC’s staff, who litigate demanding cases for consumers’ benefit. On the rare occasion when I do write, it has been to avoid implying that I disagree with the complaint’s theory of liability.
This principled, reasoned statement provides insight into Ms. Ohlhausen’s scrupulous approach to exercising the FTC’s powers. Importantly, this and other of her writings make clear that she holds a firm grasp on the difference between exercising the property right to exclusivity of one’s patented invention during the limited time of that exclusivity and the anticompetitive conduct of a monopolist in the antitrust sense.
Installing Ms. Ohlhausen as the permanent chairman of the FTC would go a long way toward righting a badly tilting vessel. And filling out the FTC roster with commissioners who share Ms. Ohlhausen’s clarity about the critical importance of intellectual property as a private property right, and her willingness to stand up to infringing bullies and foreign IP thieves on behalf of those inventive American companies’ intellectual property rights, would restore robust wealth creation and market competition with bright lines between intellectual property and antitrust.
