Patent Pledges
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Patent Pledges

Global Perspectives on Patent Law’s Private Ordering Frontier

Edited by Jorge L. Contreras and Meredith Jacob

Patent holders are increasingly making voluntary, public commitments to limit the enforcement and other exploitation of their patents. The best-known form of patent pledge is the so-called FRAND commitment, in which a patent holder commits to license patents to manufacturers of standardized products on terms that are “fair, reasonable and non-discriminatory.” Patent pledges have also been appearing in fields well beyond technical standard-setting, including open source software, green technology and the biosciences. This book explores the motivations, legal characteristics and policy goals of these increasingly popular private ordering tools.
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Chapter 5: Patent pledge enforcement theories

Jorge L. Contreras

Abstract

Most observers today agree that patent pledges, or at least a significant percentage of them, ought to be enforced. However, there is a wide divergence of views regarding the most suitable theory to support such enforcement. This chapter reviews contract, estoppel, property, antitrust, and other theories that have been advanced for the enforcement of patent pledges and assesses their strengths and weaknesses.

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