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 9: Enforcing patent pledges under EU law

Rafal Sikorski

Abstract

Patent pledges, and particularly FRAND commitments made within the context of standard-setting, have attracted growing attention in the European Union. The European Commission dealt with FRAND pledges in its decisions in Motorola and Samsung and previously in Rambus. Questions relating to abuse of dominant position through refusal to license a FRAND pledged patent were also addressed by the Court of Justice of the European Union in a dispute between two Chinese companies: ZTE and Huawei. The concerns addressed in the above-mentioned European cases are similar to the concerns raised in leading non-European jurisdictions, such as the US as well as Japan, China and South Korea. Users of technologies protected by pledged patents, especially SEPs subjected to FRAND commitments made within the standard-setting context, usually invest substantial resources in order to implement such technologies. As a result of their investment the implementers are locked in to such technologies and therefore may be forced to accept unfavorable licensing terms offered by patent owners when threatened with injunctions.

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