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 17: How to make and keep a patent pledge

Timothy S. Simcoe

Abstract

Participants in Standard Setting Organizations (SSOs) are often required to disclose relevant patents, and to license those patents if they are “essential” to an industry standard. This may seem surprising. Why would a patentee voluntarily give up its right to exclude – at least with respect to standards implementers – and in some cases provide royalty-free access to its technology? The answer, as described in a large literature on Standard Essential Patents, is that these commitments encourage other SSO participants to include the patented technology in the standard, and also promote widespread adoption of the standard itself.1 1. For an overview of this literature, see inter alia, NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES, PATENT CHALLENGES FOR STANDARD-SETTING IN THE GLOBAL ECONOMY: LESSONS FROM INFORMATION AND COMMUNICATIONS TECHNOLOGY (2013).

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