Patent Non-Assertion Pledge
Contributors, that is all Members that make a Contribution and all non-Members that make a Contribution to the ODP, (“Pledging Entities”) shall undertake the following Patent Non-Assertion Pledge (“Pledge”) as a condition of submission of a Contribution:
Each Pledging Entity promises that the Pledging Entity will not bring a Lawsuit or other legal proceeding against any Pledge Recipient for patent infringement under any of its Pledged Patent Claims. The preceding Pledge does not apply to any infringement of the Pledged Patent Claims (a) by Contributions made by others, (b) that arises from any modification of the Contribution after its submission by the Contributor, or (c) that arises from combination of the Contribution with other code or hardware. This is a personal pledge directly from the Pledging Entity to each Pledge Recipient beneficiary, and each Pledge Recipient acknowledges as a condition of benefiting from it that no rights from the Pledging Entity are received from suppliers, distributors, or otherwise in connection with this Pledge.
Each Pledging Entity acknowledges and agrees that the Pledge is legally binding, irrevocable (except as otherwise provided for “Permitted Termination” below) and enforceable against such Pledging Entity, and its successors, assigns and any entity that (through purchase, license or otherwise) acquires the exclusive right to enforce a Pledged Patent Claim. Thus the Pledging Entity will require any person or entity that acquires such right to agree, in writing, to abide by the Pledge and to place a similar requirement on any subsequent holder of the right to enforce a Pledged Patent Claim to do the same.
The Pledge is not an assurance or an acknowledgement, whether by the Pledging Entity or any Pledge Recipient, that (i) any Pledged Patent Claim (A) covers any particular software or hardware (including any ODP Code) or (B) is valid or enforceable or (ii) that the Pledged Patent Claims are all patents that do or may cover any particular ODP Code, or that the ODP Code will not infringe patents or other intellectual property rights of a third party. Except as expressly stated in this IPR Policy, no other rights are waived or granted by a Pledging Entity, or received by a Pledge Recipient, whether by implication, estoppel, or otherwise.
The Pledge is conditioned and subject to termination as set forth in this IPR Policy. Each Pledging Entity reserves the right to terminate its Pledge (“Permitted Termination”) with respect to any Pledge Recipient if the Pledge Recipient or any of its Affiliates files a Lawsuit alleging infringement of a patent by a Compliant Base Implementation, other than a Lawsuit or other legal proceeding that would have been subject to a Pledge but for a Permitted Termination (an “Offensive Claim”).
If a Pledge Recipient or its Affiliate, as applicable, permanently withdraws the Lawsuit or other proceeding within sixty (60) days of being notified in writing that such Lawsuit or other proceeding constitutes an Offensive Claim that could result in Permitted Termination, then such Lawsuit or other proceeding shall not constitute an “Offensive Claim” nor act as cause for a Permitted Termination.
Any Permitted Termination by a Pledging Entity with respect to a Pledge Recipient shall have the same effect as if the Pledge were never extended to such Pledge Recipient in the first instance. The Pledging Entity, in its sole discretion, shall determine the manner and terms, if any, by which rights under Pledged Patent Claims may be extended or re-extended to such Pledge Recipient after such Pledge Recipient’s Offensive Claim is permanently dismissed, terminated or withdrawn in writing.