The Informational Effects of Patent Pledges

PATENT PLEDGES - GLOBAL PERSPECTIVES ON PATENT LAW'S PRIVATE ORDERING FRONTIER (Jorge L. Contreras and Meredith Jacob, eds., New York: Edward Elgar, 2016 Forthcoming)

21 Pages Posted: 23 May 2015 Last revised: 8 Dec 2015

See all articles by Clark D. Asay

Clark D. Asay

Brigham Young University - J. Reuben Clark Law School

Date Written: September 21, 2015

Abstract

Traditional patent law theories teach that a patent’s rights of exclusion are a patent’s key benefit to the patentee and are necessary to make the patent system work. Yet patentees are increasingly giving away such rights, in whole or in part, as part of a growing phenomenon: patent pledges. In these scenarios, patentees voluntarily commit to limit enforcement of their rights. This phenomenon seems to contradict traditional patent law theories. After all, if exclusive rights are necessary, why are patentees increasingly sacrificing some or all of those rights?

This Article argues that they do so because in patent pledging contexts, patents entail a different value proposition than traditional patent law theories posit. That is, patent pledgers use patents as informational tools to signal to the relevant public their development preferences and activities. This information may then facilitate a variety of economic motives behind such pledges. This Article reviews several patent law features that make patents valuable as informational tools, as well as others that limit their informational potencies. It concludes by assessing some implications of this informational account of patents, in particular with respect to “open innovation.”

Keywords: patents, patent, pledges, innovation

Suggested Citation

Asay, Clark D., The Informational Effects of Patent Pledges (September 21, 2015). PATENT PLEDGES - GLOBAL PERSPECTIVES ON PATENT LAW'S PRIVATE ORDERING FRONTIER (Jorge L. Contreras and Meredith Jacob, eds., New York: Edward Elgar, 2016 Forthcoming). Available at SSRN: https://ssrn.com/abstract=2607612

Clark D. Asay (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

540 JRCB
Brigham Young University
Provo, UT 84602
United States

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