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NOTICE: ALL RIGHTS IN LICENSED PATENTS (as defined below) PROVIDED UNDER THIS DEFENSIVE PATENT LICENSE (“DPL”) ARE SUBJECT TO ALL OF THE CONDITIONS AND LIMITATIONS SET FORTH BELOW. MAKING, USING, SELLING, OFFERING FOR SALE, IMPORTING, OR DISTRIBUTING PRODUCTS OR SERVICES EMBODYING THE LICENSED PATENTS, OTHER THAN AS EXPLICITLY AUTHORIZED UNDER THIS LICENSE OR PATENT LAW, IS PROHIBITED.
1.1 “Affiliate” means a corporation, partnership, or other entity in which the Licensor or Licensee possesses more than fifty percent (50%) of the ownership interest, representing the right to make the decisions for such corporation, partnership or other entity which is now or hereafter, owned or controlled, directly or indirectly, by Licensor or Licensee.
1.2 “Clone Products or Services” means products or services of Licensee that include the same or substantially identical functionality of all or a commercially substantial portion of a prior released product or service of a Licensor and implement the same or a substantially identical proprietary user interface of the prior product or service.
1.3 “Defensive Patent Claim” means an Infringement Claim against a DPL User made in response to a pending prior Infringement Claim by said DPL User against the asserter of the Defensive Patent Claim.
1.4 “Discontinuation Announcement” means a DPL User’s announcement that:
(a) declares the DPL User’s intent to discontinue offering to license its Licensed Patents under the DPL, effective as of the Discontinuation Date; and
(b) contains the DPL User’s contact information for licensing purposes; and
(c) is submitted to the DPL Website via the Website’s official email address at least 180 days prior to a Discontinuation Date; and
(d) at least 180 days prior to the Discontinuation Date is posted to a publicly accessible indexed website controlled by the DPL User using a URL accessible via at least the following syntax: “http://www.NAME.com/DPL” or “http://www.NAME.com/defensivepatentlicense” where “NAME” is a name commonly associated with the DPL user, such as a company name.
1.5 “Discontinuation Date” means the date a DPL User specifies in their Discontinuation Announcement to discontinue offering to license its Licensed Patents under the DPL, which must be at least 180 days after the date of an individual or entity’s most recent Discontinuation Announcement.
1.6 “DPL” and “License”mean the grant, conditions, and limitations herein.
1.7 “DPL User” means an entity or individual that:
(a) has committed to offer a license to each of its Patents under the DPL, or, if such entity or individual has no Patents, has committed to offer a license to any Patents it may obtain in the future under the DPL; and
(b) has declared such commitment by means of an Offering Announcement; and
(c) if the entity or individual has made a Discontinuation Announcement, the Discontinuation Date has not yet occurred; and
(d) has not engaged in the conduct described in either Sections 3(e)(i) or 3(e)(ii).
1.8 “DPL Website” means the website at http://www.defensivepatentlicense.org, http://www.defensivepatentlicense.com, or any future site designated by the DPL Foundation.
1.9 “Effective Filing Date” is the effective filing date determined by the applicable patent office that issued the relevant Licensed Patent.
1.10 “Foundry Services or Products” means services provided by Licensee to, or products manufactured by Licensee for or on behalf of, a specific third party, using designs or specifications received in a substantially completed form from that third party, for resale or relicense to or on behalf of that third party. This definition will not apply when:
(a) Licensee or its Affiliate owns the design or specification of such service or product and the service or product is not specifically designed for commercial exploitation substantially only by such third party; or
(b) such design or specification resulted from a bona fide joint development or joint participation between Licensee or its Affiliate and such third party, including but not limited to a standards body or community organization and the resulting products, services or components provided by Licensee or its Affiliate meet the definition of Licensed Services Product or Products as set forth herein; or
(c) the third party recipient of the products or services is a DPL User.
1.11 “Infringement Claim” means any legal action, proceeding or procedure for the resolution of a controversy in any jurisdiction in the world, whether created by a claim, counterclaim, or cross-claim, alleging patent infringement or patent invalidity. Such actions, proceedings, or procedures shall include, but not be limited to, lawsuits brought in state or federal court, binding arbitrations, and administrative actions such as a proceeding before the International Trade Commission.
1.12 “Licensed Patents” means any and all Patents (a) owned or controlled by Licensor; or (b) under which Licensor has the right to grant licenses without the consent of or payment to a third party (other than an employee inventor).
1.13 “Licensed Products and Services” means any products, services or other activities of a Licensee that practice one or more claims of one or more Licensed Patents of a Licensor, but excluding Foundry Services or Products and Clone Products or Services.
1.14 “Licensee” means any individual, corporation, partnership or other entity exercising rights granted by the Licensor under this License including all Affiliates of such entity.
1.15 “Licensor” means any individual, corporation, partnership or other entity with the right to grant licenses in Licensed Patents under this License, including any Affiliates of such entity.
1.16 “Offering Announcement” means a Licensor’s announcement that:
(a) declares the Licensor’s commitment to offer a license to its Patents under the DPL, or, if such Licensor has no Patents, the commitment to offer a license to any Patents it may obtain in the future under the DPL; and
(b) contains the Licensor’s contact information for licensing purposes; and
(c) is submitted to the DPL Website via the Website’s official email address; and
(d) is posted to a publicly accessible indexed website controlled by Licensor using a URL accessible via at least the following syntax: “http://www.NAME.com/DPL” or “http://www.NAME.com/defensivepatentlicense” where “NAME” is a name commonly associated with Licensor, such as a company name.
1.17 “Patent” means any right, whether now or later acquired, under any national or international patent law issued by a governmental body authorized to issue such rights. For clarity, this definition includes any rights that may arise in patent applications, utility models, granted patents, including, but not limited to, continuations, continuations-in-part, divisionals, provisionals, results of any patent reexaminations, and reissues, but excluding design patents or design registrations.
2. License Grant
Subject to the conditions and limitations of this License and upon affirmative assent
to the commitments specified in Section 1.7 from an individual DPL User, Licensor
hereby grants and agrees to grant to such DPL User a worldwide, royalty-free, no-charge, non-exclusive, irrevocable (except as stated in Sections 3(e) and 3(f)) license, perpetual for the term of the relevant Licensed Patents, to make, have made, use, sell, offer for sale, import, and distribute Licensed Products and Services that would otherwise infringe any claim of Licensed Patents. A Licensee’s sale of Licensed Products and Services pursuant to this agreement exhausts the Licensor’s ability to assert infringement by a downstream purchaser or user of the Licensed Products or Services.
2.1 License Acceptance
In order to accept this License, Licensee must contact Licensor via the contact information provided in Section 1.16 and state affirmatively that Licensee accepts the terms of this License. Licensee must also specify whether it is accepting the License to all Licensor’s Patents or only a subset of those Patents. If Licensee is only accepting the License to a subset of Licensor’s Patents, Licensee must specify each individual patent by patent number.
3. License Restrictions.
Notwithstanding the foregoing, this License is expressly subject to and limited by the
(a) No Sublicensing. This License does not include the right to sublicense any Licensed Patent of any Licensor.
(b) License Extends Solely to Licensed Patents in Connection with Licensed Products and Services. For clarity, this License does not purport to grant any rights in any Licensor’s copyright, trademark, trade dress, design, trade secret, other intellectual property, or any other rights of Licensor other than the rights to Licensed Patents granted in Section 2, nor does the License cover products or services other than the Licensed Products and Services.
(c) Scope.This License does not include Patents with a priority date or Effective Filing Date later than Licensor’s last Discontinuation Date that has not been followed by a subsequent Offering Announcement by Licensor.
(d) Future DPL Users. This License does not extend to any DPL User whose Offering Announcement occurs later than Licensor’s last Discontinuation Date that has not been followed by a subsequent Offering Announcement by Licensor.
(e) Revocation and Termination Rights. Licensor reserves the right to revoke and/or terminate this License with respect to a particular Licensee if:
i. Licensee makes any Infringement Claim, not including Defensive Patent
Claims, against a DPL User; or
ii. Licensee grants an exclusive license, with the right to sue, or assigns or transfers a Patent to an entity or individual other than a DPL User without conditioning the transfer on the transferee continuing to abide by the terms of this License.
(f) Optional Conversion to FRAND Upon Discontinuation. As of any particular Licensee’s Discontinuation Date, Licensor has the right to convert the License of that particular Licensee from one that is royalty-free and no-charge to one that is subject to Fair, Reasonable, And Non-Discriminatory (FRAND) terms.
4. Versions of the License
4.1 New Versions
The DPL Foundation is the license steward. No one other than the license steward has the right to modify or publish new versions of this License. Each version will be given a distinguishing version number.
4.2 Effect of New Versions
Licensed Products and Services may be used, made, sold, offered for sale, imported, or distributed under the terms of the version of the License originally accepted pursuant to Section 2.1, or under the terms of any subsequent version published by the license steward.
5. Disclaimer of Claims Related to Patent Validity and Noninfringement.
Licensor makes no representations and disclaims any and all warranties as to the validity of the Licensed Patents or that products or processes covered by Licensed Patents do not infringe the patent, copyright, trademark, trade secret, or other intellectual property rights of any other party.
6. Disclaimer of Warranties.
UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE PATENT LICENSE GRANTED HEREIN “AS IS” AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE LICENSED PATENTS OR ANY PRODUCT EMBODYING ANY LICENSED PATENT, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE PRESENCE OR ABSENCE OF ERRORS, REGARDLESS OF THEIR DISCOVERABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, IN WHICH CASE SUCH EXCLUSION MAY NOT APPLY TO LICENSEE.
7. Limitation of Liability.
LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS LICENSE, INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, WHETHER ON WARRANTY, CONTRACT, NEGLIGENCE, OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES PRIOR TO SUCH AN OCCURRENCE.