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THE BROADBAND SERVICES FORUM Intellectual Property Rights (IPR) Policy
- DEFINITIONS
- "Work Product" means publications, data, architecture, white papers, functional and technical specifications, software, firmware, computer programs and code.
- "Contributed Work Product" means Work Product in written or tangible form that a Member contributes to BSF, provided that the Member designates in writing that it is being "contributed" to BSF.
- "Committee Work Product" means Work Product that is created and fixed in a tangible form by a working committee or working group of BSF in the course and scope of that working committee's activities for the primary purpose of advancing the goals and objectives of BSF and which has been identified in writing by the working committee as Work Product of the working committee or working group.
- "Draft Work Product" means Work Product that is intended for distribution but has yet to receive Board Approval.
- "BSF Work Product" means and includes both Contributed Work Product and Committee Work Product that is officially accepted, approved, and released by BSF's Board of Directors.
- "Intellectual Property" means patents, copyrights, and trade secret rights.
- "Member" when used in this document includes all membership categories authorized by the Board of Directors.
- "Intellectual Property Rights" (IPR) shall mean trademarks, copyrights, patents or any similar, registered or other allowable intellectual property rights, which are may be included in the Work Product of the BSF.
- BACKGROUND
- The BSF is an open membership organization committed to encouraging voluntary, broad-based industry cooperation leading to the development, publication and widespread dissemination of information fostering open, competitive, voluntary and interoperable global telecom industry technologies. The BSF is a California Nonprofit Mutual Benefit Corporation. Modifications to the IPR Policy may be made only in accordance with the provisions of Section 6 7 of this policy. Comments or questions about these policies should be directed to the forum's Board of Directors through the Executive Director.
- These policies are designed to maximize the likelihood of widespread adoption of BSF Work Product by the telecom industry in general, including end-users and national and international standards-setting organizations. These policies are designed to comply with applicable law, including all federal and state antitrust laws.
- ACKNOWLEDGMENT OF INTELLECTUAL PROPERTY RIGHTS (IPR)
IPR are recognized and enforced worldwide and, in certain situations, IPR holders may be able to limit the use by others of certain telecom industry technologies. In some cases, use or implementation of BSF Work Product may infringe IPR of Members or nonmembers. The BSF cannot assure its Members or nonmembers that implementation or use of an BSF Work Product will not, absent an appropriate license agreement, be adversely affected by IPR belonging to a third party.
BSF cannot and will not render any opinions as to whether any action will or will not infringe on any intellectual property rights of any party. Moreover any actions, statements or resolutions by BSF should not be interpreted as rendering any opinion on those subjects. In the event that a member has a question concerning the legal consequences of any action it should seek independent legal advice.
- AFFIRMATIVE IPR DISCLOSURE OBLIGATIONS OF BSF MEMBERS OR DECLARATION OF LICENSE AVAILABILITY
- All Members acknowledge compliance with the BSF IPR policy by submitting their application for membership in the BSF.
- At the beginning of each Technical Committee Meeting, the Chairman will ask whether any Member has any intellectual property disclosures to make. If a Member has an intellectual property disclosure, the Member will be required to declare that to the best of its knowledge:
- it does not have any IPR that would be infringed by any Work Product Contributions proposed by any member;
- it does have IPR that would be infringed by a Technical Contribution proposed by it or another member, but that it will grant a license of that IPR, and also state the criteria for the grant of the license; or
- it does have IPR that would be infringed by a Technical Contribution proposed by it or another member and that it is not presently willing to grant a license of that IPR.
In the event that a Principal Member subsequently discovers that its declaration was in error, it must announce this discovery to the Board at the earliest possible opportunity so that the Board may address the situation.
The Board of Directors reserves the right to sanction any member for any failures to disclose IPR under this section.
- Before each vote of the Principal Members for the approval of every Work Product Principal Member will be required to declare on the formal ballot that to the best of its knowledge:
- it does not have any IPR that would be infringed by the proposed Work Product;
- it does have IPR that would be infringed by the proposed Work Product, but that it will grant a license of that IPR, and also state the criteria for the grant of the license; or
- it does have IPR that would be infringed by the proposed Work Product and that it is not presently willing to grant a license of that IPR.
In the event that a Principal Member subsequently discovers that its declaration was in error, it must announce this discovery to the Board.
If a Member refuses to license its IPR, the Board may choose to do one of the following:
- discontinue development of the applicable Work Product,
- withdraw Work Product; or
- develop the Work Product so as to design around the items subject to any IPR.
- FAIR LICENSING OBLIGATIONS OF BSF MEMBERS WITH RESPECT TO TECHNICAL CONTRIBUTIONS
- In order to promote the open, efficient, competitive and useful telecom industry technology, BSF Members who make Technical Contribution(s) to the BSF must, with respect to IPR which they own which is necessary to that Member's Technical Contribution(s) and which may become technically essential in order to use or implement an BSF Work Product that includes, all or in part, that Member's Technical Contribution(s), commit to either:
- declare that a non-exclusive license for IPR relevant to that Member's Technical Contribution(s) will be made available without compensation to applicants desiring to utilize the license for the purpose of implementing any specifications in a BSF Work Product;
- declare that such a license for that part of the Member's Technical Contribution(s) included in the Work Product will be made available to applicants for consideration under reasonable and nondiscriminatory terms and conditions; or
- declare that such a license will either not be made available or that a license will be made available under fair and reasonable terms.
- Negotiations between IPR holders and potential licensees are to be left solely to the parties concerned and are to be performed outside the BSF. Non-members who own IPR that may be infringed by use or implementation of a BSF Work Product may, if the Board of Directors of the BSF so determines, be contacted by an appropriate BSF officer to determine whether such nonmember is willing to commit to either:
- declare that a non-exclusive license for relevant IPR will be made available without compensation to applicants desiring to utilize the license for the purpose of implementing any specifications in a BSF Work Product, or
- declare that such a license will be made available to applicants for consideration, but under reasonable and nondiscriminatory terms and conditions.
- In the event a Member or any other party does not agree to make licenses available with respect to its IPR relating to a Technical Contribution, the BSF shall attempt to develop and adopt BSF Work Product which do not infringe such IPR or, if this is not reasonably possible, BSF Work Product may include references to non-licensed IPR of which the BSF is aware that may be infringed by use or implementation of the respective Work Product, together with statements as to the IPR holders' licensing policies, if known. Such references will be included in the notice described in Paragraph 5 (d) below.
- The following notice shall appear in all BSF Work Product documents:
"Note: Attention is called to the possibility that use or implementation of any portion of this BSF Work Product may require use of subject matter covered by intellectual property rights owned by parties who have not authorized such use. By publication of this Work Product, no position is taken by BSF or its Members with respect to the infringement, enforceability, existence or validity of any intellectual property rights in connection therewith, nor does any warranty, express or implied, arise by reason of the publication by BSF of this Work Product. Moreover, the BSF shall not have any responsibility whatsoever for determining the existence of IPR for which a license may be required for the use or implementation of an portion of this BSF Work Product, or for conducting inquiries into the legal validity or scope of such IPR that is brought to its attention. This Work Product is offered on an "as is" basis. BSF and its members specifically disclaim all express warranties and implied warranties, including warranties of merchantability, fitness for a particular purpose and non-infringement."
- A Member's obligations under Sections 4(c) and 5(b) are for the benefit of other Members, and may be directly enforced by them. BSF shall not be obligated to defend against or take any position with respect to any infringement claims that may be asserted to enforce the obligations there under.
- DRAFT Work Product DISCLOSURES
- Upon the creation of a Draft Work Product, the Draft Work Product will be sent to all Principal Members. Each Principal Member will be required to review the Draft Work Product and determine whether it has any intellectual property of any kind whatsoever (including trademarks, copyrights, patents or any similar, registered or other allowable intellectual property rights, published or unpublished, anticipated or actual, presently existing or having the potential to arise in the future, in any country) which are necessary to implement any portion of specifications in the draft Work Product, and which would be infringed by the implementation or use of the Draft Work Product. In the event that the Principal Member does have any such intellectual property, it will be required to license the intellectual property on fair, reasonable and nondiscriminatory terms unless it has complied with Section 6(b). In the event that the Principal Member acquires any intellectual property which would be similarly infringed by the Draft Work Product, whether developed by such Principal Member and existing as an anticipated or pending application, or subsequently acquired (or planned to be acquired) from a third party, such Principal Member will be required to license any intellectual property rights which it obtains to all other Members unless it has complied with Section 6(b).
- If the Principal Member does have any intellectual property of any kind (as defined in Section 6(a), above) which would be infringed by the Draft Work Product, and it does not wish to license that intellectual property on fair, reasonable and nondiscriminatory terms, it must disclose with specificity the existence and nature of any intellectual property (or rights therein) which would be infringed by the Draft Work Product to the Board of Directors, and state that it is not willing to license the intellectual property on fair, reasonable and nondiscriminatory terms, before there has been a final vote on the Draft Work Product. If the Principal Member fails to comply with this Section, it is agreeing to grant a license to all other Members on fair, reasonable and nondiscriminatory terms.
- The following notation must appear conspicuously on all Draft Work Products:
NOTICE: Please review this Draft Work Product for any undisclosed intellectual property (including but not limited to trademarks, copyrights, patents or any similar, registered or other allowable intellectual property rights, published or unpublished, anticipated or actual, presently existing or potentially arising in the future, in any country). If you have any undisclosed intellectual property that either will or may be infringed by the implementation of this Draft Work Product, you must disclose this fact to the Board of Directors of BSF immediately. If you fail to make such a disclosure, and the Draft Standard is adopted, you must grant all Members of BSF a nonexclusive worldwide license to use this intellectual property on fair, reasonable and nondiscriminatory terms. Please direct any questions to the Board of Directors.
- All obligations contained in this IPR policy, including agreements to license IPR, shall survive termination of membership by a Member or by the BSF. A withdrawing Member must identify in its notice of withdrawal, with reasonable specificity, any technical contribution it has made with regard to any as yet not adopted Work Product being considered at the time of withdrawal. If the withdrawing Member fails to make the required disclosure, and a Work Product which had been proposed at the time the withdrawing Member was active is adopted, the withdrawing Member will be required to grant a nonexclusive worldwide license to all Members on fair, reasonable and non-discriminatory terms.
- BOARD OF DIRECTORS POWER TO MODIFY IPR POLICY
When the Board of the BSF determines that modifications to the IPR policy are in the interest of the BSF's members, those modifications must be submitted to, and approved by, two thirds of the Principal Members. The changes, if approved, are not to be retroactive.
- NO LOSS OR LIMITATION OF RIGHTS
Notwithstanding anything to the contrary contained herein, unless a Member expressly agrees thereto in writing, all IPR and other intellectual property owned by, and all inventions and works created by that Member shall be and at all times remain the sole property of that Member, and such ownership of and rights in such property shall not be affected in any way by the Member's participation in the work of the BSF or any Technical Committee thereof.
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