Playing Nice With Patents: Do Voluntary Non-Aggression Pledges Provide a Sound Basis for Innovation?

March 3, 2016

As part of a growing phenomenon, patent holders are increasingly making voluntary, public commitments to limit their
patent’s enforcement and other exploitation. While most of these commitments are FRAND commitments, in which patent holders promise to license their patents to manufacturers of standardized products on terms that are “fair, reasonable and nondiscriminatory,” a growing number of voluntary patent pledges are made outside the scope of standard-setting organizations or contexts. All of these voluntary public pledges seek to provide some degree of assurance that users of the pledged patents will not face patent litigation suits. However, the exact degree of assurance depends on the legal theory applied to patent pledges. The following article offers an overview of legal considerations for voluntary patent pledges, which go beyond FRAND commitments. These voluntary patent pledges have neither been tested in court nor examined in great detail yet. The goal of this article is to provide an overview of legal arguments based on United States and German law for those who are considering the use and reliance on of voluntary patent pledges.