This project explores how patent pledges made outside of standard setting organisations (SSOs) would be treated under EU Competition Law. Among patent pledges are the classic FRAND commitments, however, patent pledges also encompass commitments made independently from any standard setting scheme. The best known of these patent pledges is certainly the 2014 Tesla pledge: « All our Patent are Belong You ». As of now, patent pledges have been mostly made in the ICT sector (e.g. Google Non-Assertion Pledge, Open Invention Network).
In his seminal work on patent pledges, Prof. Jorge Contreras has identified various types of pledges. Some patent pledges create a group, akin to pools where patent holders mutually commit to not enforce their patents against other members of the group (cross-licenses mechanisms). Other pledges are unilateral pledges made by companies outside of any type of group and in a non-coordinated fashion. Unilateral pledges do not resort to the use of classical license agreements but rather to « promises », unilateral commitments, to not assert their patents. Each pledge also pursues specific objectives. Whether it is to enhance freedom to operate, to reduce patent litigation or to promote the use of specific technological standards, patent pledges propose to remedy some shortcomings of the patent system in order to facilitate innovation for those who pledge their patents and those who benefit from the pledges.
Patent pledges help foster innovation, however potential risks for competition should also be considered. Despite their originality in terms of forms and content, patent pledges are a way to exploit one’s patent much like a classic license agreement as they allow the pledges beneficiaries to use the patented technologies covered by the pledge. Although transfers of technology via licensing agreements are usually pro-competitive, the agreements sometimes go with certain obligations and conditions that might have the effect of restricting competition. Patent pledges were primarily developed in the UNited States and the American Scholarship has started to analyse patent pledges through the lens of antitrust rules and has been concentrating on two aspects: First, on the enforcement of patent pledges outside of SSOs (ensuring the pledge is enforced by the pledgor to the benefit of the pledges’ recipients). Second, whether patent pledges are, more generally, compatible with antitrust rules. American scholars have pointed out some of the limitations of the latter to either ensure their implementation or, in certain cases, mitigate potential anticompetitive effects patent pledges could create. Mirroring this scholarship and given the expansion and the growing interest patent pledges spark, the objective of this research is to anticipate the potential development of patent pledges in Europe and to investigate how EU Competition Law could apprehend them.