OpenAI’s patent pledge: a post-Moderna analysis

Patent pledges have increasingly been used as private ordering mechanisms to facilitate innovation and collaboration while balancing the proprietary interests of patent holders. The Moderna v Pfizer/BioNTech decision by the UK High Court marked the first judicial analysis of the enforceability and interpretation of such pledges.

OpenAI’s patent pledge, committing to defensive patent use subject to specific behavioural conditions, raises novel interpretative issues. Their pledge diverges from traditional pledges by focusing on defensive use, conditioned upon specific behavioural triggers such as avoiding harm or legal actions against OpenAI.

This article examines the pledge through the lens of the Moderna framework, analysing its scope, revocability and operational limits. The pledge’s reliance on broad behavioural conditions and lack of explicit temporal markers introduce noteworthy legal and practical complexities. These elements affect its enforceability and create challenges for third-party reliance.

Our analysis highlights the balance between strategic flexibility for patent holders and the need for clarity to foster trust among implementers. The findings underscore the balance between fostering innovation and protecting proprietary interests.