united-states patents
Why would a company choose to make a &quot;Pledge&quot; or &quot;Covenant not to Sue&quot; instead of simply licensing a patent?
<p>In 2006 Microsoft published <a href="https://en.wikipedia.org/wiki/Microsoft_Open_Specification_Promise" rel="nofollow noreferrer">their Commitment not to Sue</a> which applied to many patented specifications.</p>

<p>In 2014 Tesla made <a href="https://www.tesla.com/about/legal#patent-pledge" rel="nofollow noreferrer">their Patent Pledge</a>, which applies to <em>every</em> patent that Tesla has now or in the future. It specifically mentions that:</p>

<blockquote>
  <p>the Pledge is not a waiver of any patent claims ... and is not a license, covenant not to sue, or authorization to engage in patented activities ...</p>
</blockquote>

<p>If Microsoft or Tesla wished to allow others to implement their tech, why not simply give everyone a license to use their patents? What is the difference between a Covenant not to Sue and a Pledge?</p>

<p>There's a few good reasons that spring to mind.</p>

<p>Firstly, it's possible that Tesla or Microsoft have been themselves licensed something where the license is not sub-licenseable. This would prevent them from subsequently licensing you, but a promise/pledge is not a license and they can go right ahead and make promises.</p>

<p>Secondly, a license is broadly an agreement between two parties. A promise doesn't require formal acceptance whereas a license does.</p>

<p>To answer your question regarding a covenant not to sue - that's something else entirely. A covenant not to sue is a legal agreement between parties where the party seeking damages agrees not to sue the party it has cause against, whilst still preserving the existence of the cause (and conditions may have been set that must be met for the covenant to stand). For example, Party A still maintains that Party B used work that was not licensed to Party B, but Party A has agreed not to sue on the matter, provided that Party B advertises the fact that the work was used.</p>

<p>You ever wonder why there are so many <a href="https://opensource.org/licenses/alphabetical" rel="nofollow noreferrer">Open Source Licenses</a>? Because licenses come with terms. Terms on usage, applicability, copy-left, copy-right, retention of IP, how you can/can't use it, warranty and liability, etc. Licenses are complicated, and the transfer of liability isn't always clear, which is a big concern for companies.</p>

<p>Now, instead they say "we promise not to sue you if you use this" doesn't require a license, you use it how you see fit at your own risk. You didn't get a license from the owner so they are not legally bound to you for fit or purpose. You can't sue them because they violated a license term and vice-versa. </p>

<p>There really is no difference between a "covenant not to sue" and a "pledge" in this case. They are both legally saying the same thing, "we won't sue you for using this". </p>

<p>Making a pledge not to sue doesn't create any liabilities for you other than the liability that you cannot sue. </p>

<p>Giving someone a license could lead to trouble, for example if a third party turns up with claims that <em>they</em> are the owner of the patent, and they obviously want damages, including payments for the licenses that you gave away. Same situation with a "pledge not to sue", there are no legal consequences for you. It may turn out you had no right to sue anyway, but that doesn't affect your pledge. </p>

<p>So the pledge not to sue costs you nothing, and doesn't create any legal or financial risk. </p>
