Abstract

In order to help favour and foster interoperability among products, Standard Setting Organisations (SSOs) have recently arisen. These organisations have the goal of identifying production standards, which are believed to help competition. However, in some circumstances, the process of defining these standards leads to hold-ups. This problem occurs when standards involve technology covered and protected by patents. In order to avoid, or at least reduce, the problem of hold ups, some SSOs ask their members to state their willingness to provide an «irrevocable undertaking in writing that they are prepared to grant irrevocable licenses on Fair, Reasonable and Non-Discriminatory (FRAND) terms and conditions» or, as used in the United States, «on Reasonable and Non-Discriminatory (RAND) terms and conditions». In this study, we discuss if these F/RAND commitments, signed by the patent owners, can be qualified as tried and true contract proposals. Our goal is to show that Italian legislation and rules allow for this type of interpretation - that they are actually offers for contracts - and that when dealing with these commitments, a simple declaration from the counterparty, in which they state their acceptance of the license under F/RAND terms and conditions, leads to the acceptance and closure of the contract. Moreover, the paper also offers some possible changes that could be made to current SSO policies.