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 8: Is patent reform via private ordering anticompetitive? An analysis of open patent agreements

Matthew W. Callahan and Jason M. Schultz


Private-ordering patent reform strategies are growing in number and popularity out of twinned desires to decrease patent litigation and promote cross-platform innovation. However, much like patent pools and other attempts at collective IP problem solving, questions of competition impact and antitrust policy arise. This chapter considers one such strategy—open patent agreements (OPAs)—and asks how it might perform under antitrust scrutiny. In the end, we conclude that OPAs should survive such scrutiny because they generate significant procompetitive effects, such as non-discriminatory access to knowledge and incentives for follow-on innovation, that more than outweigh the potential risks to competition.

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