Obama's FTC picks are out, but their bullying policies live on
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The Obama administration ended the same way the Bush administration came to a close, with liberals exploiting the U.S. courts to achieve an outcome that defies the will of the people.

The American Civil Liberties Union filed suit against then-HHS Secretary Mike Leavitt and me on Jan. 17, 2009 — just three days before our political appointments expired — to establish a beachhead for their efforts to upend certain laws they didn’t like.  

Fast forward eight years and the same thing happened, but this time the litigious liberals were the political appointees, and this time their suits were directed at people and companies they didn’t like rather than at irritating laws.


A prime example of this: a mere three days before to the inauguration of President Trump, then-Federal Trade Commission (FTC) Chairwoman Edith Ramirez filed suit against the technology company Qualcomm because she didn’t like the contracts it had negotiated with computer giant Apple (a company 10 times as large as Qualcomm). Shortly after Chairwoman Ramirez filed her midnight litigation, she quit her job to let others pick up the shattered pieces caused by her hubris.


Former Chairwoman Ramirez’s lawsuit is indicative of the regulatory agenda employed by the previous administration. For eight years, we watched as governmental agencies increasingly infringed on the ability of industries and businesses to flourish. If allowed to proceed, her suit will endanger intellectual property protections and put free market principles at risk.

President Trump has made clear that he intends to put a stop to government abuse and instead allow free market incentives to spur innovation and economic growth. Despite the new president’s commitment to strengthening those ideals, a handful of companies recently urged him to allow the litigation against Qualcomm to move forward. Not surprisingly, those chosen as winners by the Obama government are reticent for the era of big government to end, at least for now, hoping that an Obama-appointed judge will decide that $800-billion Apple needs special protection from its chip supplier.

The grousing companies fail to acknowledge the dangerous precedent that would be established by using antitrust policies to weaken intellectual property rights. IP rights are grounded in Article I of the U.S. Constitution and are a fundamental building block for a thriving economy. (Indeed, the “right” of inventors to the exclusive use of their ideas is the only right the Founders enshrined in the Constitution).

And there’s very good reason why the Founders valued intellectual property to such a high degree. As Abraham Lincoln explained, "The Patent System added the fuel of interest to the fire of genius." But, companies have no incentive to invest in the development of new technologies or to share cutting edge ideas if they are not assured that those ideas will be protected from theft and abuse.

On top of all this, the FTC case is without merit. As clearly demonstrated by FTC Commissioner Maureen Ohlhausen in her dissent, the complaint is “based on a flawed legal theory … that lacks economic and evidentiary support, that was brought on the eve of a new presidential administration, and that, by its mere issuance, will undermine U.S. intellectual property rights in Asia and worldwide.”

The risk this lawsuit poses is not to just one company but to our nation’s ability to maintain our global competitiveness and position as a technology leader. This suit establishes a clear path for foreign governments to utilize frivolous enforcement actions to strip patent rights from U.S. companies, ultimately allowing Chinese, South Korean and European governments to use our own strength against us.

If allowed to move forward, the FTC’s midnight litigation will limit our country’s ability to innovate, stimulate the economy and create jobs. Considering that IP-related industries accounted for 27.9 million jobs and contributed $6.6 trillion to GDP in 2014, according to a report from the U.S. Patent and Trademark Office, there is much at stake.

It is critical that now-Acting Chairwoman Maureen Ohlhausen be given the necessary tools to end the FTC bullying so she can instead pursue the regulatory agenda that the American people endorsed when they elected President Trump. It should be the people’s will that governs this outcome, not the litigious appointees of the prior administration.

Dan Schneider serves as Executive Director of the American Conservative Union (ACU), America’s oldest and largest grassroots conservative organization.

The views expressed by contributors are their own and are not the views of The Hill.