POLICY REGARDINGINTELLECTUAL PROPERTY
Effective February 20, 2008
1. INTRODUCTION
1.1.

Purpose of this Policy
ODVA seeks to ensure that, to the greatest extent practicable, the technical specifications
and technical standards (collectively, the "Specifications") it develops, as well as the otherwork product it develops, including, but not limited to, white papers or other publications,test plans, software applications, and developer toolkits (“Other ODVA Material”), remain
vendor- neutral, open, and vibrant, while at the same time recognizing and protecting thelegitimate intellectual property rights of its Members and other contributors of intellectual
property. The purpose of this policy pertaining to intellectual property (“Policy”) is toprovide clear rules regarding the rights and obligations of all ODVA Members and other
ODVA contributors regarding intellectual property as it relates to ODVA Specifications andOther ODVA Material, in order to promote the development, adoption, and the widest
possible deployment of the best Specifications and Other ODVA Material by Licensed
Vendors.

1.2.

Scope of this Policy
This document is the complete and exclusive statement of the ODVA Policy, consistent
with the Bylaws, and applies to and governs all ODVA activities. All ODVA Members shallbe subject to this Policy. This Policy supersedes: (a) any previous version of this Policy,
including, but not limited to, the "Guidelines for ODVA Members Concerning Intellectual
Property Ownership" first published by ODVA in 1995, and the "ODVA Intellectual Property
Policy" first published by ODVA in 1997; (b) any previous version of ODVA's Participation
Agreement for Special Interest Groups (also known as a "Special Interest Group
Participation Agreement" or a "SIG Participation Agreement"); (c) any previous version of
ODVA's Participation Agreement for Joint Special Interest Groups (also known as a "Joint
Special Interest Group Participation Agreement" or a "JSIG Participation Agreement"); (d)all similarly named or similarly intended prior agreements, documents, and policies; and(e) any other documents attempting to define, interpret, explain, or clarify such prioragreements, documents, or policies. In addition, in order to ensure that all Members have
uniform rights and responsibilities as Licensed Vendors of the Final Specifications inCompliant Products, for any Members that also are parties to one or more of any previous
version of ODVA's Terms of Usage Agreement ("Previous TOU"), this Policy supersedes
such Previous TOU and all such Members will be entitled to the rights and subject to the
obligations of the ODVA Revised Terms of Usage Agreement then in effect as of theEffective Date or any subsequent version of the Revised Terms of Usage Agreement towhich such Member agrees; provided, however, that, in the event of any inconsistency
between this Policy and any Revised Terms of Usage Agreement, this Policy shall govern.
Notwithstanding the foregoing, ODVA may have entered into, and may in the future enter
into, other intellectual property assignment, licensing, or other agreements with Members
and/or other Persons that operate independently of this Policy, and this Policy shall notaffect the validity or enforceability of such other agreements in any respect.

1.3.

Effect of Changes to this Policy
The Board of Directors of ODVA ("Board") may amend and restate this Policy at any timeor from time to time. Any such revised Policy shall become effective only after: (a) ODVA
notifies all Members in writing of such revisions, which notice shall include reasonabledetail concerning the nature of the revisions; (b) ODVA makes reasonable efforts to notify
all registered Participants in writing of such revisions, which notice shall include reasonable

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detail concerning the nature of the revisions; and (c) ODVA posts a link to the revised
Policy on the ODVA website (currently http://www.ODVA.org/) for all existing Members
and Participants and potential new Members and Participants to consider. The effective
date of the revised Policy shall be the date the foregoing three conditions are met or, if
later, the date specified by the Board. ODVA shall clearly indicate the effective date of therevised Policy in its notices to Members and Participants under (a) and (b) above,alongside the website link under (c) above, and in the revised Policy itself. The abovewritten notice requirement may be satisfied by delivery via e-mail sent to the contact
addresses for a Member or Participant on file with ODVA, or by any other regular means ofcommunication to a Member's or Participant's address on file with ODVA. Notwithstanding
the effective date of any revised Policy, ODVA shall afford existing Members at least thirty(30) calendar days from the date of ODVA's delivery of notice of such revisions before
existing Members will become bound by the revised Policy. Any existing Member that
does not provide written notice to ODVA withdrawing its membership in ODVA prior to theend of this thirty (30)-day period will be deemed to have ratified and accepted the revised
Policy (including any revisions to referenced document(s)) in its entirety even without any
express, written agreement to such revised Policy by such Member. Any existing Memberthat withdraws or that is terminated from ODVA, pursuant to the terms of Section 7.1,
prior to the end of this thirty (30)-day period will remain bound by the terms of the Policy
as it was in effect prior to the effective date of the revised Policy. Any entity becoming a
Member after the effective date of such revised Policy shall become bound by the revised
Policy immediately upon becoming a Member. However, ministerial changes to this Policy,
such as proofreading corrections or formatting changes, may be executed by ODVA andshall be immediately effective as to all Members and Participants, so long as a revised
version of the Policy containing such ministerial changes is promptly posted on the ODVA
website.
1.4.

Good Faith and Fair Dealing Requirement
All Members, Participants, and other Persons involved in ODVA activities are required toact in good faith at all times; to understand and comply with the rules and obligations of
this Policy; to avoid fraudulent, deceptive, or like behavior; and, to the greatest extent
possible, to work towards developing Specifications or Other ODVA Material that areembraced and widely deployed by the marketplace.

2. DEFINITIONS
2.1.

“Affiliate” means, without limitation, any individual, corporation, partnership, sole
proprietorship, joint venture, business unit or division, employee benefit plan, trust, orother enterprise that, directly or indirectly through one or more intermediaries, controls, iscontrolled by, or is under common control with, another entity, so long as such control
exists. In the event such control ceases to exist, such Affiliate will be deemed to havewithdrawn from ODVA pursuant to the terms set forth in the withdrawal provisions in
Section 7. “Control” means: (a) direct or indirect beneficial ownership of or the right toexercise decision-making authority with respect to (i) more than fifty percent (50%) of thevoting stock or equity in an entity; or (ii) more than fifty percent (50%) of the relevant
ownership interest or decision-making authority representing the right to make thedecisions for the subject entity in the event that there is no voting stock or equity; or (b)actual working control of an entity, in whatever manner exercised, including, but notlimited to, the right, through a management agreement or otherwise, to direct how theintellectual property of an entity is protected, used, or licensed to others or how the dayto-day operations of the entity are conducted.

2.2.

“Bylaws” means ODVA’s bylaws, which are available on the ODVA website (currently
http://www.ODVA.org/), as they may be amended from time to time.

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2.3.

“Compliant Products” means only those specific portions of products (hardware,
software, or combinations thereof), not necessarily the product as a whole, that
implement and conform with all relevant required portions of a Final Specification.

2.4.

“Contribution” means any material, concept, data, suggestion, or other submission madeto an ODVA group including, but not limited to, Special Interest Groups, in the process ofdeveloping a Specification or Other ODVA Material, for the purpose of proposing a new
Draft Specification or Other ODVA Material, or proposing an addition to or modification ofan existing Draft Specification, Final Specification, or Other ODVA Material (or portion
thereof), regardless of where or how meetings are convened or work is conducted (suchas physical meetings anywhere in the world, telephonic meetings or conference calls,
Internet-based electronic meetings, discussion forums, or direct e-mail exchange),
provided that the submission is in writing or other tangible form of expression (including inan e-mail or other electronic medium).

2.5.

“Derivative Work” means a work that is based upon a preexisting work protected underapplicable copyright law, such as a revision, modification, translation, abridgement,
condensation, expansion, compilation, or any other form in which such preexisting work
may be recast, transformed, or adapted, and which, if prepared without authorization of
the owner(s) of the copyright in such preexisting work, would constitute a copyright
infringement.

2.6.

“Draft Specification” means any technical specification, specification enhancement, orother technical standard developed by a SIG or other ODVA group as it exists at any stage
in its development prior to approval by the TRB as a Final Specification.

2.7.

"Effective Date" means the effective date of this Policy, as set forth at the beginning of
this Policy.

2.8.

“Essential Claims” means all claims in any patent or patent application in any jurisdictionin the world that would necessarily be infringed by implementation of a Final Specification.
A patent claim is necessarily infringed hereunder only when it is not possible to avoid
infringing it because there is no commercially reasonable non-infringing alternative for
implementing the Final Specification. Existence of a non-infringing alternative shall be
judged based on the state of the art at the time the Final Specification is first published by
ODVA.
Notwithstanding the foregoing, the following are expressly excluded from and shall not be
deemed to constitute Essential Claims:(a)any claims that may be contained in the same patent or patent application as
Essential Claims but are not themselves Essential Claims as defined above;(b)claims that would be infringed only by:(i)

portions of any product and any combination of products (or portions of
products) that are not necessary for conformance with any element of the
Final Specification, including, but not limited to, any "required," "optional," or"suggested" element referred to in the Final Specification;(ii)

enabling technologies that may be necessary to make or use any product or
portion thereof that conforms with the Final Specification and are notthemselves expressly set forth in the Final Specification (e.g., semiconductor
manufacturing technology, compiler technology, object oriented technology,
operating system technology, and the like); or

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(iii) the implementation or use of technology, specifications, or standards
developed elsewhere (i.e., outside of ODVA) and merely incorporated byreference into the body of the Final Specification; and(c)design patents and design registrations (for purposes of explanation, "design
patents" and "design registrations" refer to the branch of intellectual property law
that protects the appearance of a product, apart from its usefulness or functionality,
and would therefore not be "essential" for an implementer wishing to conform with
the Final Specification).

2.9.

“Final Specification” means any technical specification or other technical standard
adopted and approved for publication by the TRB as a final specification in accordance with
the Bylaws and other specification development/adoption procedures (e.g., DeviceNet™
Specification, EtherNet/IP™ Specification, CompoNet™ Specification, ControlNet™
Specification, and CIP Safety™ Specification).

2.10.

“Identity Guidelines” means the guidelines available on the ODVA website (currently
http://www.ODVA.org/) that have been developed by ODVA to ensure the accurate andconsistent use of its trademarks, logos, and other identity elements by third parties.

2.11.

“Licensed Vendor” means any Person that has executed or otherwise become bound by
a Revised Terms of Usage Agreement, either by signing it and returning it to ODVA or
through other means of assent specified by ODVA, including failure to opt out of suchagreement after notice and a specified review period. All Members are deemed to be
Licensed Vendors.

2.12.

“Member” means any company, organization, or other entity that applies for and isaccepted by ODVA into any class of voting or nonvoting membership in accordance with
the Bylaws. In addition, certain other Persons that are not formal Members of ODVA may,from time to time, be invited to take part in ODVA activities (“Invited Experts”). If any
such Invited Expert makes a Contribution to a SIG or other ODVA group or attends a
meeting of any SIG or other ODVA group (in person or by telephone), such Invited Expert(and any company, organization, or other entity s/he represents) shall also be deemed to
be a “Member” solely for purposes of this Policy and to have, subject to Section 3.2.6, theresponsibilities hereunder applicable to a Member, without voting rights or other benefits
of ODVA membership, unless and until such Invited Expert’s represented company,
organization, or other entity formally becomes a Member of ODVA. Unless the context
dictates otherwise (for example, in Section 1.3), use of the term “Member” in this Policy
shall be deemed to include all of the Member’s Participants.

2.13.

“Non-Contributed Essential Claims” means those Essential Claims that cover not a
Member’s own Contribution but either: (a) the Contribution of another party; or (b)material that is otherwise included in a Specification. Put differently, these are Essential
Claims covering technology that a Member did not itself contribute to a Specification but
which nonetheless became part of a Specification, such as through the Contribution ofanother Member.

2.14.

“ODVA” means ODVA, Inc.

2.15.

“Other ODVA Material” means any document that a SIG or other ODVA group may
develop or receive from Members or other Persons from time to time, including, but notlimited to, white papers or other publications, test plans, conformance plans, software
applications, and developer toolkits, which are designed to assist in various ways with thedevelopment, explanation, testing, implementation, or other aspects of Draft
Specifications or Final Specifications.

2.16.

“Participant” means an individual who is properly identified to the ODVA Executive
Director as having authority to participate in ODVA or an ODVA group on behalf of the

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Member organization (or an entity that is not yet a Member of ODVA) by which s/he isemployed. Such notice may be conveyed to the ODVA Executive Director at any time by
the Member (or other entity) at issue using ODVA’s standard documents and/or
procedures. The actions and statements of such individual(s) will be deemed to legallybind such Member (or such other entity) and/or its Affiliates.
2.17.

“Person” means any individual, corporation, partnership, sole proprietorship, joint
venture, trust, limited liability company, business association, governmental entity, orother entity.

2.18.

“RAND-R Patent License” means a patent license that provides reasonable and nondiscriminatory (i.e., “RAND”) terms and conditions and may also charge a reasonable fee,royalty (i.e., “-R”), or other compensation to the licensee.

2.19.

“RAND-Z Patent License” means the patent license granted by Members to ODVA (and,in turn, as a sublicense by ODVA to Licensed Vendors) under the reasonable and nondiscriminatory (i.e., “RAND”) terms and conditions specified in Section 3.2.1, and by
Licensed Vendors to ODVA (and, in turn, as a sublicense by ODVA to other Licensed
Vendors) as specified in Section 3.2.3. The “-Z” extension indicates that this license
requires “zero” royalties or other compensation.

2.20.

“Revised Terms of Usage Agreement” means the agreement published by ODVA for
use on or after the Effective Date, as set forth on the ODVA website (currently
http://www.ODVA.org/), or any subsequent version of that agreement, that contains thelicensing rights and obligations and other terms of use to which a Person must agree as a
Licensed Vendor in order to implement a Final Specification in a Compliant Product.

2.21.

“Special Interest Group” means a group approved by the TRB and consisting of two or
more Members working on Specifications and/or Other ODVA Material in accordance with awork plan approved by the TRB. The term “Special Interest Group” also includes reference
to ODVA's “Joint Special Interest Groups” and may be abbreviated by the acronym “SIG”
for purposes of this Policy.

2.22.

“Specification,” standing alone, means both Draft Specifications and Final Specifications.

2.23.

“TRB” means the Technical Review Board of ODVA.

3. PATENT PROVISIONS
3.1.

Patent Disclosure
3.1.1. Ongoing Duty to Disclose Non-Contributed Essential Claims. All Members
shall have an ongoing obligation to disclose the patent rights described in thisSection 3.1.1 that are held by themselves or their Affiliates. Specifically, if theMember’s Participant knows of a qualifying patent or patent application, theMember or the Participant must disclose the patent or patent application, in
writing, using ODVA’s standard documents and/or procedures, for consideration by
the TRB, as soon as reasonably possible after the Participant becomes aware of it.
This obligation is triggered when the Member’s Participant actually and personallyknows about a patent or patent application that s/he believes contains a NonContributed Essential Claim owned, controlled, or licensable by the Participant, theMember s/he represents, or an Affiliate, that covers a Draft Specification or a Final
Specification. No collective or aggregate knowledge of the Member, its Affiliates,
or employees on whose behalf the Participant is acting will be imputed to such
Participant.
However, a Member is prohibited from intentionally isolating a
Participant from potentially relevant patent information within the Member orAffiliate organization to avoid this patent disclosure obligation. No disclosure
obligation will apply for inventions until a patent application is filed. For purposes

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of applying the disclosure obligations in this Section and in Section 3.3, references
to disclosures of Non-Contributed Essential Claims covering a Draft Specification
shall be understood to assume that the Draft Specification at issue would
ultimately be adopted, without modification, as a Final Specification.
3.1.2. No Intellectual Property Search Required. Nothing in this Section or in thisPolicy imposes any duty or obligation on any Member or Participant, or on ODVA,
to perform a patent search or other search of intellectual property portfolios.
3.1.3. Minimum Contents of Disclosure.
The following minimum contents are
required for any disclosure made pursuant to Section 3.1.1 or Section 3.3:

3.1.3.1. Issued Patents and Published Patent Applications.
With respect to issued patents and published patent applications, theMember must disclose at a minimum: (a) the name of the patent rights
holder/applicant; (b) contact information for licensing terms; (c) thepatent number or application number; (d) the countries throughout theworld where such patents have issued or patent applications have been
filed; and (e) the Specification(s) to which the disclosure relates.

3.1.3.2. Unpublished Patent Applications.
With respect to unpublished patent applications, the Member must disclose
at a minimum: (a) the name of the patent rights applicant; (b) contact
information for licensing terms; (c) the fact that an application exists
containing the asserted Non-Contributed Essential Claims; (d) the
countries throughout the world where such patent application has been
filed; and (e) the Specification(s) to which the disclosure relates. The
disclosure need not contain or describe any other identifying information
about the unpublished patent application (e.g., application number, patentclaims, relevant portion of the Draft Specification, etc.).

3.1.3.3. Duty to Update Disclosures.
If an unpublished patent application previously disclosed by a Member
becomes a published patent application, the Member shall, within areasonable period of time, update its prior disclosure to provide ODVA withthe application number. If a published patent application previously
disclosed by a Member becomes an issued patent, the Member shall,
within a reasonable period of time, update its prior disclosure to provide
ODVA with the patent number.
3.1.4. Disclosure Exemption. A Member will be exempt from the ongoing disclosure
obligation described in this Section with respect to all Specifications if it
irrevocably commits in writing to ODVA, using ODVA’s standard documents and/or
procedures, to provide the RAND-Z Patent License specified in Section 3.2.1 for allof its and its Affiliates’ Essential Claims, including all of its and its Affiliates’ NonContributed Essential Claims, covering any Final Specification.
3.1.5. Disclosure of Third-Party Patent Rights. Members and their Participants haveno obligation to disclose to ODVA potentially relevant third-party patents or
published patent applications, although such disclosure is strongly encouraged. If
a Member’s (or its Affiliate’s) Essential Claims are independently disclosed byanother Member (or its Participant) or by any other Person, such independently
disclosed claims will continue to be treated as they were prior to such disclosure -namely, as either the Member’s Non-Contributed Essential Claims or as Essential
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Policy. If Essential Claims of a third party that is not a Member and not a Licensed
Vendor of a Final Specification covered by such Essential Claims are disclosed, therelevant chairperson of the SIG or ODVA group or the ODVA Executive Director willattempt to have the third party confirm whether it has Essential Claims covering
the Specification and, if so, that it will commit to providing the RAND-Z Patent
License for such Essential Claims set forth in Section 3.2.1.
3.1.6. ODVA Records of Patent Disclosures. ODVA shall maintain a file that includes
all patent disclosure statements received for any Draft Specification or Final
Specification. ODVA shall also provide such information to any party, uponrequest.
3.2.

Patent Licensing
3.2.1. RAND-Z Patent Licenses. Subject to Sections 3.2.2, 3.2.4, 3.2.5, 3.2.6, and7.2, each Member hereby grants to ODVA a worldwide, nonexclusive,
nontransferable (except to a successor to substantially all of ODVA’s business),
compensation-free patent license (“RAND-Z Patent License”) under such Member’s(and its Affiliates’) Essential Claims in any issued patent covering any Final
Specification (including Final Specifications adopted before the Effective Date),with the right for ODVA (but no other Person) to sublicense same to Licensed
Vendors of such Final Specification(s), solely to allow such Licensed Vendors tomake, have made, use, import, offer to sell, sell, lease, market, and otherwise
distribute and dispose of Compliant Products that implement such Final
Specification(s). Such RAND-Z Patent License is under the terms of this Section
3.2.1 (with no additional terms permitted). For the avoidance of doubt, thisRAND-Z Patent License extends to all of a Members’ and its Affiliates’ Essential
Claims in any issued patent covering any Final Specification, including any NonContributed Essential Claims; provided, however, that the license shall not apply
to any Essential Claims for which the Member (or its Affiliate) does not have theright to license without obligation of payment of royalties or other material
consideration to an unaffiliated third party; and provided further that a Member
can avoid this RAND-Z Patent License solely for its and/or its Affiliates’ NonContributed Essential Claims to the extent that the Member satisfies the disclosure
requirements specified in Section 3.3. For the avoidance of doubt, subject toSections 3.2.4 and 3.2.5, Essential Claims that cover a Member’s own
Contributions must be licensed to ODVA under the RAND-Z Patent License of thisSection 3.2.1. Members are prohibited from working together to contribute one or
the other of such Members’ patented technology to a Specification in an attempt toallow either of such parties to avoid the RAND-Z Patent License obligation; anysuch behavior is a violation of this Policy and grounds for termination of such
Members’ membership in ODVA, in addition to any other remedies that may beavailable at law or in equity.
3.2.2. RAND-R Patent Licenses for Certain Non-Contributed Essential Claims.
ODVA strongly prefers its Members to license any of their and their Affiliates’
Essential Claims covering a Specification under the RAND-Z Patent License of
Section 3.2.1, although it recognizes that RAND-R Patent Licenses may also be
acceptable in certain situations solely with respect to a Member’s Non-Contributed
Essential Claims as spelled out in this Policy. If, pursuant to Section 3.3, ODVA
permits a Member to use a RAND-R Patent License for certain of its NonContributed Essential Claims, any such RAND-R Patent License shall be negotiateddirectly between such Member and each Licensed Vendor (as opposed to provided
directly to ODVA for sublicensing to Licensed Vendors as with the RAND-Z Patent
Licenses granted under Section 3.2.1) and shall be subject to all of the applicablerequirements and provisions for RAND-Z Patent Licenses specified in Section 3.2.1,
except that the Member may include a reasonable and non-discriminatoryroyalty/fee in its license to Licensed Vendors.

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3.2.3. Reciprocal Patent Licensing Obligation for Licensed Vendors.
In anyRevised Terms of Usage Agreement, ODVA will condition all sublicenses of the
RAND-Z Patent License described in Section 3.2.1 to non-Member Licensed
Vendors of a Final Specification (i.e., “Sublicensees”) upon such Sublicensee’s
grant of a reciprocal RAND-Z Patent License to all Members and all other Licensed
Vendors of such Final Specification for all Essential Claims owned, controlled, or
licensable by the Sublicensee (or its Affiliates) that cover: (a) such Final
Specification (even if the Sublicensee only implemented such Final Specification in
the past and no longer implements it); or (b) the Common Industrial Protocol(“CIP™”) currently in “Volume One” of the ODVA Specifications.
3.2.4. Limited Right for ODVA Members to Seek Reciprocal RAND-R License. If
ODVA permits (pursuant to Section 3.3) a Member to license certain NonContributed Essential Claims on a RAND-R basis, any Licensed Vendor that is alsoa Member and that is thereby faced with paying a royalty or fee in connection with
its implementation of a Final Specification may also use a reciprocal RAND-R
Patent License and charge a royalty/fee back to the Member for such Member’s
past and future use of the Licensed Vendor’s (or its Affiliates’) own Essential
Claims covering the same Final Specification (including Essential Claims covering
the Member’s own Contributions, which would otherwise be licensed on a RAND-Z
basis pursuant to Section 3.2.1).
3.2.5. Limited Defensive Suspension Right.
If a Licensed Vendor of a Final
Specification initiates or threatens to initiate a lawsuit against ODVA or any
Member (the “Essential Claim Owner”), or against the Essential Claim Owner’s
Affiliate, relating to the Licensed Vendor’s (or its Affiliate’s) Essential Claim(s)covering such Final Specification (or CIP), the Essential Claim Owner may revoke
the patent license granted by ODVA to such Licensed Vendor pursuant to Section
3.2.1 with respect to the Essential Claim Owner’s (or its Affiliates’) Essential
Claims covering such Final Specification (or CIP) (the “Terminated Essential
Claims”), and/or may retroactively convert a RAND-Z Patent License for such
Terminated Essential Claims (including Essential Claims covering the Member’s
own Contributions, which would otherwise be licensed on a RAND-Z basis pursuant
to Section 3.2.1) to a RAND-R Patent License, including the possibility of imposinga reasonable royalty/fee for past and/or future use of the Essential Claim Owner’sor its Affiliates’ Terminated Essential Claims by such Licensed Vendor. Members
and ODVA will be named as third-party beneficiaries in any Revised Terms of
Usage Agreement between ODVA and Licensed Vendors for the purpose ofenforcing this defensive suspension right.
3.2.6. Invited Experts’ Patent Licensing Obligations. The obligation of an Invited
Expert and its Affiliates to license under this Section 3.2 and to participate in thereview period set forth in Section 3.3 shall be limited to the particularSpecification(s) or Other ODVA Material developed by the ODVA group(s) of whichsuch Invited Expert is deemed to be a “Member” under Section 2.12.
3.2.7. Member Power Over Affiliates. Each Member hereby represents and warrantsthat it has the power to cause all patents owned or controlled by it and all of its
Affiliates to be licensed as set forth in this Policy and that it and its Affiliates haveownership rights in all patents and patent applications covering inventions madeby their employees in the course of their employment. If a Member breaches theforegoing representation and warranty such that the patents owned or controlled
by any such Affiliate are not licensed as set forth in this Policy, then such Member
shall, subject to Section 3.2.2, indemnify and hold harmless ODVA and any
Licensed Vendors of any affected Final Specification from and against any
royalties/fees, liability, or damage incurred by ODVA or such Licensed Vendors as
a result of the failure to obtain such patent license. Member shall be liable for all

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acts or omissions of its Affiliates, such that any breach of this Policy by such
Affiliates shall be deemed a breach hereof by Member.
3.2.8. New Members’ Patent Licensing Obligations. New Members that join ODVAat any point in time shall be subject to the RAND-Z Patent License described in
Section 3.2.1 for all of their (and their Affiliates’) Essential Claims covering any
Final Specification adopted before the new Member became a Member.
3.2.9. Restrictions on the Transfer of Patent Rights. No Member or any of its
Affiliates may assign or otherwise transfer a patent including an Essential Claimcovering any Specification for the purpose of circumventing this Policy. Anytransfer of a patent including an Essential Claim shall be expressly conditioned by
the Member or its Affiliate upon the transferee’s (“First Transferee”) obligation to:(a) provide all the licenses specified in this Policy; (b) bind any of the First
Transferee’s own transferees to all the licenses specified in this Policy; and (c)inform any other subsequent transferee which the First Transferee becomes aware
has acquired a patent including an Essential Claim of the obligation to provide all
the licenses specified in this Policy. All prospective licensees of the Essential
Claims required to be licensed under this Policy are deemed to be intended thirdparty beneficiaries of the requirement that transfers of patents containing such
Essential Claims comply with this Section 3.2.9.
3.3.

Patent Review Period. In order to ensure that all Members working on a Draft
Specification and other Members of ODVA have the opportunity to review such Draft
Specification, prior to its adoption as a Final Specification, ODVA shall provide a patent
review period during which Members may identify Non-Contributed Essential Claims. The
review period shall run for a minimum of forty-five (45) calendar days, and ODVA shallprovide written notice of this review period to all Members to the addresses on file withODVA.
To prepare for the review period, ODVA shall incorporate all standalone
Specification enhancements developed by a SIG or other ODVA group into any applicable
existing Specification(s) to form an “integrated Draft Specification” that will be the subjectof the review period. During the review period, each Member may: (a) review the
integrated Draft Specification in English (the official language of ODVA); and (b) disclose,
pursuant to the requirements of Section 3.1.3, any of its and its Affiliates’ Non-Contributed
Essential Claim(s) covering any incremental new material in such integrated Draft
Specification that the Member is not willing to license to all Licensed Vendors of theresulting Final Specification under the RAND-Z Patent License of Section 3.2.1. Upon
receiving such disclosure, ODVA may, in its sole discretion, discuss the possibility of theMember committing to at least grant the RAND-R Patent License under Section 3.2.2 forsuch Non-Contributed Essential Claims or may attempt to have the SIG or other ODVA
group work around such claims by changing the integrated Draft Specification. If, as aresult of the disclosure of any Non-Contributed Essential Claim(s) covering such integrated
Draft Specification during the review period, or for any other reason, the integrated Draft
Specification is substantially modified, then the notification process described in thisSection shall recommence with a new review period for the modified integrated Draft
Specification. If a Member fails to review the integrated Draft Specification or fails todisclose one or more of its (or its Affiliates’) Non-Contributed Essential Claims prior to theend of the review period, then the RAND-Z Patent License under Section 3.2.1 will apply
for such undisclosed claim(s) (note: Essential Claims that cover one’s own Contributions
must be licensed under the RAND-Z Patent License pursuant to Section 3.2.1, subject only
to Sections 3.2.4 and 3.2.5). For the avoidance of doubt, this RAND-Z Patent License
applies to all of a Member’s and its Affiliates’ undisclosed Non-Contributed Essential Claims
covering the Final Specification ultimately resulting from the integrated Draft Specification
under review, despite the lack of actual and personal knowledge thereof by any individual
Participant who participates in any SIG or other ODVA group on behalf of such Member.

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3.4.

Ownership and Licensing of Inventions Arising from ODVA Activities.
3.4.1. Ownership. Ownership of all inventions that arise from ODVA activities shall begoverned by the patent laws of the United States of America. In the event thattwo or more Members and/or other Persons (including ODVA employees) jointly
own an invention arising from an ODVA activity, such joint owners shall agree
among themselves to suitably apportion the costs and responsibilities for the
preparation, filing, and prosecution of patent applications, if any, to be filed by thejoint owners, and to the maintenance and enforcement of intellectual property
rights that result therefrom. For the avoidance of doubt, inventions arising fromODVA activities are distinct from inventions, technology, intellectual property, or
the like made, developed, and/or owned by any Member or Person prior to such
ODVA activities/membership, which such Member/Person will continue toown/hold, subject to its ODVA licensing obligations.
3.4.2. Compensation-Free Licenses. All inventions arising under Section 3.4.1 shallbe treated as a Contribution by the applicable owner or joint owners of suchinventions. Essential Claims covering any such Contribution shall be subject to the
RAND-Z Patent License of Section 3.2.1 (and any applicable copyright andtrademark rights shall be subject to the compensation-free copyright andtrademark licenses of Sections 4.1 and 5.1).
3.4.3. Restrictions on Competing and Incompatible Uses. In order to preserve
ODVA’s ability to manage the Specifications and Other ODVA Material that rely on
inventions arising under Section 3.4.1, no Member or Person that owns suchinvention may distribute or license such invention to any other party (including,but not limited to, an existing or new standards development organization thatcompetes with ODVA), nor may it permit any party other than ODVA to do so;
provided, however, that the foregoing restriction shall not in any way restrict any
owner’s internal use of such invention or its licensing of such invention to third
parties or sale of products for uses that do not compete with the functionality of
products that implement any of the Final Specifications managed by ODVA. Anytransfer of ownership to inventions arising under Section 3.4.1 shall be madesubject to the licenses and restrictions of Sections 3.4.2 and 3.4.3.

4. COPYRIGHT PROVISIONS
4.1.

Compensation-Free Copyright License to Contributions. Each Member and anyother Person that submits a Contribution, either as a new Draft Specification or OtherODVA Material or for incorporation into an existing Specification or Other ODVA Material,
thereby grants to ODVA, and to all Members and their Affiliates and Participants, aworldwide, fully paid-up, compensation-free, irrevocable, perpetual, non-exclusive, nontransferable (except to a successor to substantially all of ODVA’s business) copyrightlicense to reproduce, publish, use, execute, display, distribute, and perform theContribution, and to create Derivative Works that are based on or incorporate all or part of
the Contribution, solely for the purpose of developing, publishing, documenting,
explaining, distributing, implementing, and testing the Specifications and/or Other ODVA
Material, including the right by ODVA to sublicense some or all the foregoing rights to third
parties for the purpose of creating and distributing Compliant Products that implement
such Specifications and any accompanying documentation. ODVA may also sublicense theforegoing rights covering such Contributions to another standards development
organization for the purpose of adopting the same or a substantially similar specification or
standard as the Specification into which the Contribution (or portion thereof) is
incorporated. Contributions owned or developed by a Member or other contributing
Person shall remain the property of such Member/Person, and no interest in the ownershipof the Contributions shall be assigned or transferred to ODVA or to any other Member orparty.

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4.2.

ODVA Copyright Ownership of Specifications. ODVA shall own the copyright in allSpecifications and Other ODVA Material, subject to the underlying copyright rights of thecontributing Members and other Persons as set forth in Section 4.1. Any publication of aSpecification or Other ODVA Material shall contain an appropriate copyright notice in thename of ODVA, as well as any limitations of liability, and other such statements containedin the original. ODVA may exercise any and all rights of copyright ownership in theSpecification and Other ODVA Material and will be authorized to license such rights toLicensed Vendors of the Specification.

5. TRADEMARK, LOGO, AND NAME PROVISIONS
5.1.

Trademark License to ODVA. Each Member and any other Person that submits aContribution for incorporation into a Specification or Other ODVA Material thereby grants
to ODVA a non-exclusive, non-transferable (except to a successor to substantially all of
ODVA’s business), compensation-free license to reference within a Specification or OtherODVA Material any trademarks, service marks, names, logos, or the like included in such
Contribution.

5.2.

Respect for ODVA’s Marks, Logos, and Names. No Member or other Person may
assert any ownership rights in any ODVA trademark, other mark, name, or logo byassuming, reserving, registering, using, or otherwise claiming any mark, logo, or name(including any Internet domain name) owned or already being used by ODVA (or that isconfusingly similar to any such ODVA-owned/used mark, logo, or name) as their own,
whether as a trademark, service mark, certification mark, trade name, domain name, or“doing business as” name (“d/b/a”), alone or in combination with such organization’s orindividual’s own trademarks or service marks.

5.3.

Other Matters. Other matters relating to the use of ODVA’s or others’ marks, logos, ornames will be addressed and handled: (a) in other agreements and documents of ODVA,
such as the Revised Terms of Usage Agreement or the Identity Guidelines; and/or (b) as
they arise on a case-by-case basis according to the circumstances surrounding the issue.

6. CONFIDENTIALITY / TRADE SECRET PROVISIONS
6.1.

No Confidentiality Obligation with Respect to Contributing Members/Persons.
Members acknowledge that neither ODVA nor any Member or other Person that receives aContribution or other information disclosed in the context of a Specification development
effort or any other ODVA activity will have any obligation to keep such
Contribution/information confidential for the benefit of the contributing Member or Person,
unless confidential treatment is required by application of a non-disclosure agreement
separately negotiated by such contributing Member/Person with such recipients. Members
and their Participants are therefore advised to carefully consider whether they wish to
submit or disclose any Contribution/information for which they wish to maintain trade
secret protection.

6.2.

Confidentiality Obligation for the Benefit of ODVA. Notwithstanding the foregoing,
unless otherwise approved by a specific chairperson or the ODVA Executive Director, allproceedings, information, and materials of particular SIGs or other ODVA groups(including Draft Specifications, Contributions, and Other ODVA Material) are required to be
maintained in confidence for the benefit of ODVA. Specifically, none of the Members orParticipants in the particular SIG or ODVA group, or consulting SIGs appointed by the TRB
to work with such SIG/ODVA group, may disclose or describe such proceedings,
information, or materials to any party other than Members, Participants, Persons, or ODVA
employees engaged in the activities of the particular SIG(s) or other ODVA group(s) inquestion); provided, however, that Specification enhancements and other Draft
Specifications from particular SIGs or other ODVA groups may be incorporated into theintegrated Draft Specification that is the subject of the patent review by all Members as
described in Section 3.3, and into a Final Specification. This Section 6.2 shall not restrict

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ODVA’s ability to make any disclosures it deems necessary or appropriate, including, but
not limited to, any disclosures required pursuant to Section 3.1.6. The confidentiality
obligation in this provision shall continue indefinitely and shall survive a Member's
withdrawal from ODVA; provided, however, that such confidentiality obligation shall not
apply to any information or material that is already in the public domain at the time of
disclosure other than by breach of this provision (e.g., ODVA may, in its discretion, discuss
Specification enhancements currently under development at press conferences, inpresentations, or in technical papers authored by contributors).
7. WITHDRAWAL / TERMINATION
7.1.

Process. A Member may withdraw from ODVA in accordance with the Bylaws andapplication for membership. Withdrawal shall be effective upon receipt of such written
notice by ODVA. In addition, violation by a Member, or by any Participant that represents
such Member, of any material agreement with ODVA, or of any of its policies, including
without limitation the Bylaws, this Policy, or any Revised Terms of Usage Agreement towhich such Member has agreed, may result, in the discretion of the Board, in the Member
being removed from membership.

7.2.

Effect of Withdrawal/Termination.
Notwithstanding a Member’s withdrawal or
termination, and except (as applicable) as provided in Section 3.3, the Member’s
obligation to grant a patent license under Section 3.2 (as applicable) shall remain in fullforce and effect for:(a)

Essential Claims covering a Contribution made by the withdrawing/terminatedMember that is incorporated into any Final Specification (even if such Final
Specification is adopted after such Member’s withdrawal/termination); or(b)

Non-Contributed Essential Claims covering a Final Specification as such Final
Specification (or the Draft Specification from which it arose) existed on the date ofwithdrawal/termination (even if such Final Specification is adopted after such
Member’s withdrawal/termination); and(c)Essential Claims (or Non-Contributed Essential Claims) covering a Final Specification
adopted by ODVA after the effective date of the Member’s withdrawal/termination
that: (i) are necessary for the later-adopted Final Specification to be backwards
compatible with a prior Final Specification; and (ii) are used in a substantiallysimilar manner, extent, and result as such Essential Claims (or Non-Contributed
Essential Claims) were used in such prior Final Specification for which the Member
or its Affiliate is obligated to grant licenses.

All rights and obligations of the withdrawn/terminated Member other than thosespecifically referenced in this Section 7.2 or in Sections 4.1, 5.1, and 6.2 shall cease uponsuch withdrawal/termination. Members that withdraw or are terminated from ODVA retain
any continuing obligations they may have under any Revised Terms of Usage Agreements
to which they have agreed, particularly to the extent they remain a Licensed Vendor of
Final Specifications after such withdrawal or termination.
8. ODVA REVIEW OF “PROPOSED” CONTRIBUTIONS IN SPECIAL CIRCUMSTANCES
If a Member or non-Member believes that a potential Contribution would significantly advance theefforts of a particular Specification development effort but is unwilling to contribute it to ODVA in
accordance with this Policy without first discussing the matter with ODVA, such party may invoke
the following process: The Member/non-Member should approach the ODVA Executive Director
and describe its idea or proposal before submitting it as a Contribution to a SIG or other ODVA
group as part of the Specification development process. Any such party can discuss a potential
Contribution with the Executive Director without having the submission be deemed at that point a“Contribution” for purposes of this Policy (and thus, for example, subject to the compensation-free
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copyright license under Section 4.1 and the RAND-Z Patent License under Section 3.2.1), provided
that the party clearly identifies the potential Contribution as a “discussion document: not a
Contribution” in writing in advance of the discussion and has not yet become a documented
Member in the SIG or other ODVA group developing the Specification to which the potential
Contribution would likely be submitted. If, after such discussion with the Executive Director, suchparty proceeds to submit such proposed Contribution to a SIG or other ODVA group in connection
with a Specification development effort, such submission shall be deemed a Contribution and be
subject to the various licensing obligations specified in this Policy. Members and non-Members arestrongly advised to invoke this mechanism only in very limited circumstances -- primarily when
the party has a substantial new technology idea or proposal to be considered and is genuinely
unsure as to the best way to introduce this idea/proposal into the ODVA process. It should not be
used in an attempt to avoid the RAND-Z Patent License associated with Contributions, to delay theSpecification development process, or for any other purpose.
9. MISCELLANEOUS
9.1.

No Other Licenses. Except for the rights expressly provided under this Policy, neither
ODVA nor any Member or Participant grants or receives, by implication, estoppel, orotherwise, any rights under any patents, copyrights, or other intellectual property rights.

9.2.

No Warranties/Disclaimers. ALL MEMBERS, PARTICIPANTS, AND OTHER PERSONSACKNOWLEDGE THAT ALL DRAFT SPECIFICATIONS AND FINAL SPECIFICATIONS, ALL
OTHER ODVA MATERIAL, AND ALL CONTRIBUTIONS THERETO, ARE PROVIDED “AS IS”
WITH NO WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, AND ALL MEMBERS, PARTICIPANTS, THE ODVA EXECUTIVE DIRECTOR,BOARD OF DIRECTORS, TRB, AND ODVA EXPRESSLY DISCLAIM ANY WARRANTY OF
MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR OR INTENDEDPURPOSE, OR ANY OTHER WARRANTY OTHERWISE ARISING OUT OF ANY PROPOSAL,
FINAL SPECIFICATION, DRAFT SPECIFICATION, OTHER ODVA MATERIAL, OR
CONTRIBUTION.

9.3.

Limitation of Liability. IN NO EVENT WILL ODVA OR ANY OF ITS CONSTITUENT PARTS(INCLUDING, BUT NOT LIMITED TO, THE ODVA MEMBERS, PARTICIPANTS, EXECUTIVEDIRECTOR, BOARD OF DIRECTORS, OR TRB) BE LIABLE TO ANY OTHER PERSON FOR THE
COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST
BUSINESS, LOST DATA, OR LOSS OF USE; OR FOR ANY DIRECT, INDIRECT, INCIDENTAL,CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, WHETHER UNDER CONTRACT, TORT,WARRANTY, OR OTHERWISE, ARISING IN ANY WAY OUT OF THIS POLICY OR ANY
RELATED AGREEMENT, WHETHER OR NOT SUCH PARTY HAD ADVANCE NOTICE OF THE
POSSIBILITY OF SUCH DAMAGES.

9.4.

Publicity. Each Member consents to the public disclosure and use of its name forpurposes of publicly promoting Final Specifications, including the use in statements
regarding the conformance of the Member’s Compliant Products with a Final Specification.

9.5.

Governing Law / Jurisdiction / Arbitration / Venue / Language. This Policy shall be
construed and controlled by the laws of the State of Michigan, without giving effect toconflict-of-law principles. The parties agree that all disputes arising in any way out of thisPolicy that cannot be resolved by good faith discussion will be settled by final and binding
arbitration in Ann Arbor, Michigan, U.S.A., under the then-current Commercial Arbitration
Rules of the American Arbitration Association with the reasonable costs of such arbitration
split equally between such parties and with the prevailing party therein entitled to recover
its reasonable legal fees and costs thereby incurred, including attorneys’ and experts’ fees.
Any such arbitral award may be enforced in a court of competent jurisdiction. For
purposes of enforcement, the parties irrevocably consent to jurisdiction and venue in thestate and Federal courts of the State of Michigan. This Policy has been written in the
English language, and it may be translated into other languages by Members or other
Persons at their own cost and for their own convenience and internal purposes. However,ODVA Policy Regarding Intellectual Property
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the official version of this Policy and the one that shall govern and prevail in all cases,
including the case of any difference or disagreement with any such translation, is the
English language version.
9.6.

ODVA Successors. The terms and provisions of this Policy will be binding upon and inure
to the benefit of ODVA’s successors and assigns.

9.7.

Writing Requirements Satisfied by E-mail and Other Electronic Means.
Anyprovision in this Policy that requires or permits a written notice or written document to be
used may be satisfied through the use of e-mail, the posting of a document to a website,or other suitable electronic means under the circumstances.

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