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 6: Patent pledges at the U.S. International Trade Commission

Elizabeth I. Winston


The United States International Trade Commission (“ITC”) investigates alleged trade violations of Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), including importation of products infringing patents. This chapter seeks to explore the impact of voluntary public commitments made by patentees, limiting the enforcement and exploitation of their patents, on the role of the ITC in protecting domestic industry. The ITC exists to protect domestic industry, and not the patent. A patent pledge may preclude the seeking of injunctive relief, but that goes to the patent itself. Exclusion orders are an appropriate remedy for infringement of a patent subject to a patent pledge, unless the exclusion order is contrary to the public interest. An exclusion order is not an injunction, and can be not conclusively precluded by a patent pledge. The exclusion order is a statutory mandate that can be overcome only by evidence that the statutorily enumerated public interest factors are frustrated. The availability of an exclusion order remains critical to a continuing balance of encouraging contribution to standard setting bodies, while still allowing access to standards, preventing unfair competition and protecting our domestic industry.

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