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Hastings Communications and Entertainment Law Journal

Abstract

This Note examines the problems that arise when the owner of proprietary rights participate in the setting of open industry uniformity standards. These open standards typically include patented technology, sometimes due to the participation of the patent owners in developing the industry standard. Often, standards development committees require disclosure of patents held by participants. After widespread adoption of the standard occurs, the patent owners then face the dilemma of either abandoning some part of their patents or attempting to enforce their patents in courts inclined to hold them estopped. This Note discusses recent developments in this area, including judicial hostility to enforceability of patents in standards and antitrust actions instituted by the United States Government. The author ultimately proposes that the Justice Department should utilize the duty to deal remedy more frequently when faced with a patentee that pushed its patented technology into an industry standard.

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