The Federal Trade Commission (FTC) has issued a report titled “The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition.” Based on stakeholder hearings, a workshop and public comments that explored how well the U.S. patent system and competition policy work together, the report provides specific recommendations for ensuring that innovations are not stifled and damages for infringement are adequate.

Many of the recommendations arose from concerns expressed by the information technology industry. They call for improvements to patent claims so that they better fulfill their notice function (“patent claims must delineate the scope of patent rights with sufficient clarity that a person skilled in the relevant art can reliably determined whether planned activities would infringe”); definitions for key claim terms, as well as a U.S. Patent & Trademark Office-sponsored “workshop to explore ways of fostering greater uniformity in the methodology or language used for describing and claiming software inventions”; and improvements to clearance searches. The report also contains a number of recommendations for more accurately assessing infringement damages in an effort to “derive an economically grounded approach to calculating patent damages.” According to FTC, another improvement to the system would be for courts to exercise their gatekeeper authority and exclude unreliable expert testimony on damages.