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Jorge L. Contreras

Despite their potential benefits, voluntary consensus standards have over the past decade become the subject of significant private litigation, regulatory enforcement and policy debate. Much of the current controversy centers on the perceived proliferation of patents covering standardized technologies, potentially abusive enforcement of such patents against manufacturers and users of standardized products, and the terms on which patent holders may be required to license the use of those patents to others. This chapter offers an overview of the empirical, legal and economic literature concerning the interaction of interoperability standards and standards-setting organizations with intellectual property rights (primarily patents, with attention to copyrights and trademarks as well).

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Jorge L. Contreras

This chapter offers a comprehensive, descriptive account of patent pledges today. It identifies the industry sectors in which pledges appear, the patents that they cover, the commitments that they embody, and the forms in which they are made. This catalog of the forms and structures of patent pledges supports the development of an analytical taxonomy of patent pledges.

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Jorge L. Contreras

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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Jorge L. Contreras

Despite the underlying market forces that should promote the dissemination of patent pledges, widespread notice of existing pledges is lacking. Pitfalls such as obscurity, impermanence, and patent transfers have convoluted the existence and current status of patent pledges. A public registry of patent pledges, accompanied by suitable governmental incentives for registration, could address these problems and provide the highest degree of market awareness of pledges.

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Edited by Jorge L. Contreras and Meredith Jacob

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Edited by Jorge L. Contreras and Meredith Jacob

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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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Charles R. McManis and Jorge L. Contreras

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Jorge L. Contreras and Charles R. McManis