Pledges and Covenants: The Keys to Unlock Patents

Abstract

Recently, driven by the enthusiasm spurred by the Open Innovation movement, also individual patentees as well as wealthy corporations holding valuable patent portfolios have started sharing their patented knowledge. Whether in the open source software environment or in the fields of biosciences and green technologies, during the last few years patent holders have been uniformizing the terms and conditions of their licenses in order to facilitate the access to, the transfer as well as the use of their patents. Patent pledges and covenants have thus become the keys to open patents. Actually, they have unlocked at least diverse doors. Some pledges and covenants have contributed to create large “clubs of patentees” that are reciprocally committed to share their patents. These clubs are inwardly open, but still closed towards the non-members. Other pledges and covenants have set the grounds to make patents open toward whoever is interested in them, on the main condition that this unknown re-user will make her own follow-on innovation be equally open. The paper discusses the legal implications of these phenomena, their communalities and differences.