An Estoppel Doctrine for Patented Standards

Robert P. Merges, Jeffrey M. Kuhn 

Technical standards, such as interface protocols or file formats, are extremely important in the “network industries” that add so much value to the world economy today. Under some circumstances, the assertion of patent rights against established industry standards can seriously disrupt these network industries. We have in mind two particularly disruptive tactics: (1) the “snake in the grass,” whereby a patentee intentionally keeps a patent “quiet” while a standard is being designed or adopted, and then later, after the standard is entrenched, asserts the patent widely in an attempt to capitalize on its popularity; (2) the “bait and switch” ploy where a patentee encourages adoption by offering royalty-free use of standard-related patents, and then, after the standard has gone into widespread use, begins to enforce its patents against adopters of the standard.

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