FTC Chairman Jon Liebowitz

The Federal Trade Commission is taking a close look at the use of “standards essential” patents in the smartphone patent wars, Chairman Jon Liebowitz said Thursday, implying that the use of those patents in a quest seeking an injunction is troubling to the agency.

“That’s an area that the commission is enormously concerned about,” Liebowitz said at the D: All Things Digital conference as part of a wide-ranging discussion on privacy, antitrust, and, of course, patents. If it launches an actual investigation into the issue, it’s likely to cause headaches for Google and its Android partners, who have been criticized for using such patents in their defense against lawsuits by the likes of Apple and Microsoft.

Apple CEO Tim Cook used part of his appearance Tuesday evening to complain about the use of these patents, which are generally required by standards-setting organizations to be licensed to other companies under “reasonable and non-discriminatory” terms when used as part of a technology standard. Liebowitz’s main concern seemed to be companies who are “suing for injunctive relief” citing such patents; in that reasonable people can differ over whether the licensing terms are truly “reasonable and non-discriminatory” and can settle those differences in court, but tech companies shouldn’t be allowed to obtain injunctions on sales of products based on those patents.

The European Commission is already looking into this issue and warned Google before approved its acquisition of Motorola that it would be watching its behavior with respect to such patents.

In other matters:

• “Your computer is your property,” Liebowitz said, in a discussion about privacy and the Do Not Track system that the five major browser companies have agreed to implement. Users should have to opt into any privacy changes, he said, suggesting that the Web might have been designed differently–around an opt-in system–if industry and regulators had known how much of a concern privacy would become 15 years later.
• Liebowitz confirmed that his agency is investigating Google for possible antitrust violations, which isn’t really that big a deal considering that Google itself announced the investigation last year. But he called Beth Wilkinson–the lead investigator on the issue and subject of a Reuters profile Thursday–a “world-class litigator” ideally suited to do battle with Google should any evidence of wrongdoing be uncovered.
• Internet companies are starting to understand that privacy controls can be good for business, he said. “The more choice of control [that] consumers have over the Internet, the more they trust it and the more commerce they do.”

Image credit Asa Mathat | All Things Digital

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