INTELLECTUAL PROPERTY RIGHTS POLICY

VERSION 1.1

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This OMA3 Intellectual Property Rights (IPR) Policy governs the treatment of intellectual property in the production of deliverables by OMA3 (“OMA3”).  This Policy is adopted by the OMA3 Board according to OMA3’s Articles of Association and applies to all members of OMA3. 

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  1. Copyright license to Contributions. 

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  1. Contributors and Contributions.  OMA3 coordinates the development of various deliverables, such as technical specifications, software code, marketing collateral, and other related material. Any work of authorship provided to OMA3 for potential inclusion in a draft or final OMA3 deliverable is a “Contribution.” The entity or individual making the Contribution is the “Contributor.” 

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  1. Copyright license to Contributions. Each Contributor grants OMA3 a worldwide, irrevocable, non-exclusive, royalty-free, fully-sublicensable copyright license to reproduce, distribute, display, perform, and create derivative works of the Contributions it provides.

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  1. OMA3 copyrights. Subject to the Contributor’s continued copyright ownership in their Contributions, OMA3 will own the copyright in any collective works, compilations, joint works or derivative works created in connection with OMA3 activities, and will own the copyright in any works created by OMA3 employees or agents.

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  1. Attribution; moral rights. Each Contributor, and each individual making a Contribution, waives any moral rights (or similar rights) to the maximum extent permitted by applicable law. OMA3 deliverables will be attributed to OMA3. 

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  1. Patent license obligations for Specifications. 

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  1. Specifications. OMA3 produces technical specifications that define requirements and related information and data models necessary to facilitate interoperability between third party products or services. Once approved as final by the OMA3 Board of Directors, these are “Specifications.” Every member of OMA3 is obligated to license certain intellectual property, including certain patent claims in connection with Specifications, as described in this Section 2.

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  1. Definitions. 

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  1. An “Affiliate” is any entity that is controlled by, under common control with, or that controls the subject party; and  “control” means direct or indirect control of more than 50% of the voting power to elect directors of a corporation or, for any other entity, the power to direct management of such entity. 

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  1. A “Necessary Claim” is any claim in a patent in any jurisdiction that would necessarily be infringed by a compliant implementation of the relevant Specification. A claim is necessarily infringed only when it is impossible to avoid infringing it, because there is no commercially reasonable non-infringing alternative for implementing the normative portions of the Specification. All other claims, even if contained in the same patent as Necessary Claims, are not Necessary Claims unless they qualify individually as Necessary Claims. Claims which would be infringed only by portions of an implementation that are not expressly specified in the normative portions of the Specification are not Necessary Claims. 

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  1. A “RAND License” is a worldwide, non-exclusive license, limited to Necessary Claims, to make, have made, use, import, offer to sell, lease, sell, promote and otherwise distribute the portions of the implementer’s products and services that comply with the normative portions of the Specification, granted on reasonable and non-discriminatory terms. 

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  1. A “RAND-Z License” is a worldwide, non-exclusive license, limited to Necessary Claims, to make, have made, use, import, offer to sell, lease, sell, promote and otherwise distribute the portions of the implementer’s products and services that comply with the normative portions of the Specification, granted on royalty-free and otherwise reasonable and non-discriminatory terms. 

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  1. Review Period. After a working group agrees upon a proposed final draft specification, the working group chair will notify the Board. The Board will promptly issue a notice of ratification, along with a proposed final draft version of each Specification to all members for review for a period no less than 45 days prior to formal approval of the Specification (the “Review Period”). At the end of the Review Period, the Board will hold a vote to approve the final Specification.

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  1. RAND-Z License obligation. Each member of OMA3 agrees that if a patent claim that is owned, controlled or licensable (without additional consideration other than to employees or Affiliates) by that member or an Affiliate of the member becomes a Necessary Claim, then, unless the member files a RAND Exclusion, as set forth below, the member will grant, or will cause its Affiliate to grant, a RAND-Z License to any implementer (member or non-member) of the relevant Specification who requests such a license, subject to the definitions and exceptions described below.

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  1. RAND Exclusion. The RAND-Z License obligation described in Section 2(d) will not apply to patent claims that a member excludes in writing in accordance with this Section (a “RAND Exclusion”). A member may file a RAND Exclusion for a claim by specifically identifying a particular claim and the applicable portion of the relevant draft specification in writing to the Board, prior to the end of the applicable Review Period. The member must deliver a RAND Exclusion notification promptly upon becoming aware that the claim potentially may be a Necessary Claim and deciding that they are unwilling to license it under a RAND-Z License, even if such awareness arises prior to the Review Period. The member will grant, or will cause its Affiliate to grant, a RAND License to any Necessary Claims identified in the RAND Exclusion, to all member implementers of the relevant Specification who request such a license. Members may not file a RAND Exclusion for claims that read directly on Contributions made by the member or that are otherwise included in a draft specification as a direct result of the intentional input of that member, except to the extent the member specifically identified the Contribution as subject to a RAND Exclusion at the time of submission. For the avoidance of doubt: the RAND Exclusion mechanism described in this Section 2(e) is not available for any new member of OMA3 for Specifications approved prior to the date the new member joins OMA3, and further, a member may not exclude, via RAND Exclusion an obligation to grant a RAND-Z License for any Necessary Claims that are used in a substantially similar manner, to a substantially similar extent, and to a substantially similar result as Necessary Claims used in a prior ratified Specification for which Member was previously obligated to grant a RAND-Z License. If a member provides a RAND Exclusion to the Board prior to finalizing the relevant draft specification, the Board will appoint a committee to evaluate the notification and make a recommendation to the Board, and the Board will decide on appropriate next steps. For the avoidance of doubt, the Board does not have the discretion to reject any RAND Exclusions filed by a member in accordance with this policy. If the Board approves a Specification after receipt of an applicable RAND Exclusion, OMA3 will include a statement of this fact in the affected Specification.  OMA3 is not responsible for determining validity of any information associated with any RAND Exclusions.  

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  1. Reciprocity. An implementer is eligible to be the beneficiary of the license obligations described in Section 2(d) and 2(e) only if the implementer commits to substantially the same license (RAND or RAND-Z, as applicable) obligation. The reciprocal license obligations granted from member implementers to members who have filed a RAND Exclusion and their Affiliates in connection with a Specification will convert from a RAND-Z License to a RAND License with regards to the relevant Specification. 

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  1. Defensive suspension. Except as otherwise expressly agreed between parties, a licensor may suspend any license granted to a particular licensee pursuant to this Policy if that licensee or its Affiliate initiates litigation against the licensor or its Affiliate that alleges infringement of a Necessary Claim in connection with an OMA3 Specification. A party will not be deemed to have initiated litigation if that party files a claim which is defensively based on a patent infringement claim or suit by another party.

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  1. Effect of withdrawal from OMA3. Even after the date a member formally withdraws from OMA3 (the “Withdrawal Date”), the former member will be obligated to grant licenses as described in this Section 2 to (a) those claims that became Necessary Claims prior to the Withdrawal Date, (b) claims directly embodied in a Contribution made by the former member that become Necessary Claims if and when a Specification that includes the Contribution is approved after the Withdrawal Date, (c) Necessary Claims that read on future versions of a Specification, limited to those portions of the future version that are substantially the same as in the Specification as it was approved prior to the Withdrawal Date, and (d) Necessary Claims in any patent filed by the former member after the Withdrawal Date if such claims have a priority date that is during the period when the former member was a member. The surviving license obligations will be RAND-Z Licenses, except for claims identified in a RAND Exclusion filed prior to the Withdrawal Date, which will be subject to a RAND License obligation. Other than as described in this Section 2(f), no new obligations attach post Withdrawal Date. 

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  1. License obligations are binding on successors and assignees. The obligation to license Necessary Claims in accordance with this Policy is an encumbrance that is binding upon any and all assignees and transferees of any Necessary Claims. Members agree to (a) notify its assignee or transferee of such obligation; and (b) require its assignee or transferee to agree to similarly provide such notice to its assignees or transferees of this obligation. Further, a member should take other reasonable actions, as and if appropriate for the members’ legal jurisdiction, to ensure that direct and subsequent assignees and transferees are bound by the license obligations imposed by this Policy. The obligation to license will be binding on all successors-in-interest irrespective of whether notice or other action has occurred, however.

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  1. No patent search obligation. The obligations set forth in this Policy do not imply any obligations on members to perform or conduct patent searches.  

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  1. Software. The Board may adopt a Software Policy. The Software Policy may require that a member license software code Contributions made by that member in accordance with the terms of applicable software licenses identified in the Software Policy. 

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  1. Trademarks. OMA3 will be permitted to use the name and corporate logo (or similar mark) of members in OMA3 promotional materials solely in connection with communications about OMA3 membership, subject to reasonable use limitations communicated by the member to OMA3. OMA3 members may use the OMA3 name and membership logo solely to communicate their membership in OMA3, subject to a reasonable trademark use policy to be published by the Board. The OMA3 name and trademarks may not be used to communicate compliance or conformance with any OMA3 specifications or technology, and may not otherwise be used in connection with any member product or service, except as permitted by an applicable written OMA3 license agreement or Board-approved policy which license shall be equally available to all OMA3 members. A party granting a trademark license under this Section 4 will be entitled to terminate such license if it reasonably believes that the licensee is misusing the licensor’s mark. 

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  1. Confidentiality.  All materials generated by OMA3 and by members on behalf of OMA3, and not specifically designated as non-confidential by the Board, including any draft specifications, working group mailing lists and minutes, will be deemed the confidential information of OMA3.  Members may discuss this information among OMA3 members, but will otherwise maintain this information in confidence with at least a reasonable degree of care. The Board will establish processes to determine the timing and nature of any public release of deliverables. Materials released publicly are non-confidential. 

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  1. Disclaimer. The Specifications and Contributions are provided “AS IS” WITH NO WARRANTIES OR CONDITIONS WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND THE PARTIES EXPRESSLY DISCLAIM ANY WARRANTY OR CONDITION OF MERCHANTABILITY, SECURITY, SATISFACTORY QUALITY, NONINFRINGEMENT INCLUDING NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, FITNESS FOR ANY PARTICULAR PURPOSE, ERROR-FREE OPERATION, OR ANY WARRANTY OR CONDITION OTHERWISE ARISING OUT OF ANY PROPOSAL, CONTRIBUTION, SPECIFICATION, OR SAMPLE.

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  1. Scope; amendments; authority.

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  1. Assent to terms. Participation in OMA3 as a member indicates assent to the terms of the Policy. Any party that desires to not be bound by the terms of this IPR Policy must abstain from joining, and must not engage in OMA3 activities.

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  1. No implied licenses. Except as expressly provided in this IPR Policy, Membership Agreement, or OMA3’s Guiding Principles, no other rights to intellectual property or software are granted by members by implication, estoppel or otherwise.
  2. Amendments. The OMA3 Board of Directors may amend this Policy at any time in its sole discretion. No amendment to this Policy will be effective in less than 30 calendar days from the date that written notice of such amendment is sent to members.

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  1. Authority. Individuals acting within the scope of their employment, or otherwise as an agent of a legal entity, act on behalf of their employer or other legal entity. The individual represents that they have the right and authority to bind their employer or other principal to these terms. The bound entity represents and warrants that it has the right to grant the licenses described in these terms.