This article argues that the same legal standards should apply to RAND commitments
whether they are made to standard-setting organizations or not. The arguments
for concluding that RAND commitments should limit injunctive patent
relief or trigger antitrust liability turn on whether the commitment reasonably
induces lock-in that generates hold-up effects or market power when that commitment is breached. But RAND commitments can induce such lock-in effects
when they are made outside of standard-setting organizations and do not always
induce them when they are made to standard-setting organizations. Thus, any
special legal rules for RAND commitments should turn on whether the commitments
induced such lock-in, rather than on the institutional context. The arguments
against using special legal rules for RAND commitments turn on the
extent to which lock-in might fail to generate holdup problems, denying patent
injunctions might generate reverse-holdup problems, and contract or promissory
estoppel remedies might obviate the need for antirust liability. But those arguments
likewise apply equally inside and outside of standard-setting organizations.
Thus, however one resolves the arguments for and against applying special legal
rules to RAND commitments, the resulting legal standards should be the same
whether or not the commitment is made to a standard-setting organization.
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