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ATR joins coalition to oppose FTC midnight litigation

By Katie McAuliffe, Celeste Arenas | January 30, 2017

The Trump administration could be saddled with numerous legal hurdles following last-minute litigation attempts by the previous government targeting American business interests. ATR recently signed a coalition letter against this kind of legislation.

Midnight litigation launched in the final days of the eight-year Obama administration is politically motivated, not policy oriented and fails to undergo the scrutiny of regular procedure. It has posed a direct threat to American businesses in the protection of intellectual property, setting a precedent for foreign entities to undercut patent property rights.

A substantial proportion of midnight litigation cases have been issued by the Federal Trade Commission, one suit involving Qualcomm was announced just three days prior to the President’s inauguration ceremony. 

Federal Trade Commissioner Maureen K. Ohlhausen consequently issued a dissenting statement condemning the last minute legal action undertaken by the FTC. She notes that such “enforcement action” is “based on a flawed legal theory … that lacks economic and evidentiary support” and will “undermine U.S. intellectual property rights in Asia and worldwide.” She notes further that American businesses accused of anti-competitive measures have been presented with “no robust economic evidence of exclusion” in what is “simply a possibility theorem.”

The decision to drop midnight litigation charges will allow the new administration to manage substantially greater and more critical challenges ahead.