NOTE: This is a work-in-progress. It does not have the official endorsement of the Open Web Foundation and is only a committee-draft. The purpose of this document is to initiate the conversation regarding the creation of an Open Web Foundation Final Specification Agreement. The Content of this document does not imply anything with regard to the opinions of any member of the OWF Legal committee or their employers.

Open Web Foundation Final Specification Agreement

[Insert Specification Name and Version Number]

1.      The Purpose of this Agreement.  This agreement sets forth the terms under which I make certain intellectual property rights available to you for the use and implementation of the Specification.  Capitalized terms are defined in the last section of the agreement and in the body of the agreement.

2.      Copyright.

2.1.   Copyright Grant.  I grant to you perpetual (for the duration of the applicable copyright), worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license, without any obligation for accounting to me, to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, distribute, and implement the Specification to the full extent of my copyright interest in the Specification.

2.2.   Attribution.  You are required to retain and include in any copy of any version of the Specification you distribute, any attributions included in the Specification at the time you received it.  If, however, you are a standards setting organization or specification development organization, you may remove the attributions if required by your policies [[as long as full and public records are retained for subsequent review of those attributions][The no attribution exception is made to make it possible for any licensed specification to move into standards bodies that restrict past attribution. The marked language might conflict with this objective.]].

3.      Patents. 

3.1.   Patent Non-Assert.

3.1.1.      The Promise.  I, on behalf of me and my successors in interest and assigns, irrevocably promise not to assert any Necessary Claims against you for making, using, selling, offering for sale, importing or distributing any implementation to the extent it conforms to the Specification as it existed on the Date entered below (“Covered Implementation”), subject to the following. This is a personal promise directly from me to you, and you acknowledge as a condition of benefiting from it that no rights from me are received from suppliers, distributors, or otherwise in connection with this promise.  [[This promise applies only to the particular Specification.  New versions of the Specification will be separately considered. | This promise also applies to your implementation of any subsequent derivative works incorporating the Specification to the extent that the implementation conforms to the required portions of the Specification.][Objection has been raised that the first alternative goes against the principals of Open Source. The second alternative is an attempt to maintain the limitation on patent grant but allow some form of derivative work. One expressed position was that once Necessary Claims are promised in this Non-Assert, then *they* become available in derivative works of the Specification. The counter argument is that without clear limitations to a spec version, patent owners lose all rights for patents covered by the Necessary Claims except for defensive rights.].

3.1.2.      Defensive Suspension.

3.1.2.1.            By Me.  [[Notwithstanding the Promise in section 3.1.1, this Patent Non-Assert shall not apply and I make no assurance, covenant or commitment not to assert or enforce any or all of my Necessary Claims against any entity that asserts its own or another party's patent rights against any Covered Implementation. | If you file, maintain, or voluntarily participate in a patent infringement lawsuit against my implementation of such Specification, then this personal patent promise does not apply with respect to any Covered Implementation of the same Specification made or used by you.][The first option voids all promises made, not just by the party being sued. The second option is limited only to the promise from the party being sued.]]

3.1.2.2.            By You.  If a Related Entity files, maintains, or voluntarily participates in a patent infringement lawsuit against your implementation of such Specification, then you may terminate the grant of any Necessary Claims I received from you with respect to any Covered Implementation of the same Specification made or used by me.

3.1.3.      Additional Conditions.  This promise is not an assurance either (i) that any of my issued patent claims covers a Covered Implementation or are enforceable or (ii) that a Covered Implementation would not infringe patents or other intellectual property rights of any third party. No other rights except those expressly stated in this promise shall be deemed granted, waived or received by implication, exhaustion, estoppel, or otherwise.  Notwithstanding the personal nature of my promise, this promise is intended to run with any patents and patent applications containing Necessary Claims and to be binding on any future owner, assignee or exclusive licensee who has been given the right to enforce any Necessary Claims against third parties.

3.1.4.      Bankruptcy.  Solely for purposes of Section 365(n) of Title 11, United States Bankruptcy Code (“Bankruptcy Code”) and any equivalent law in any foreign jurisdiction, this promise will be treated as if it were a license and you may elect to retain your rights under this promise if I (or any owner of any patents or patent applications referenced herein), as a debtor in possession, or a bankruptcy trustee in a case under the Bankruptcy Code, reject this non-assert.

3.2.   Patent License Commitment.  I, on behalf of me and my successors in interest and assigns, agree to grant to you a royalty free license to my Necessary Claims on reasonable and non-discriminatory terms solely for making, using, selling, offering for sale, importing or distributing any Covered Implementation.

4.      Good Faith Obligation.  I agree that I have not and will not knowingly take any action for the purpose of circumventing my obligations under this agreement.

5.      Disclaimers.  I expressly disclaim any warranties (express, implied, or otherwise), including implied warranties of merchantability, non-infringement, fitness for a particular purpose, or title, related to the Specification.  The entire risk as to implementing or otherwise using the Specification is assumed by the Specification implementer and/or user.  IN NO EVENT WILL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANYCHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTICIPANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  All of my obligations under Section 3 regarding the transfer or assignment of Necessary Claims will be satisfied if I notify the transferee or assignee of any patent that I know contains Necessary Claims of the obligations under Section 3. Nothing in this Section requires me to undertake a patent search.

6.      Definitions.

6.1.   Bound Entities.  “Bound Entities” means the entity listed below and any entities that the Bound Entity Controls.

6.2.   Control.  “Control” means direct or indirect control of more than 50% of the voting power to elect directors of that corporation, or for any other entity, the power to direct management of such entity.

6.3.   I, Me, or My.   “I,” “me,” or “my” refers to the signatory below and its Bound Entities, if applicable.

6.4.   Necessary Claims.  “Necessary Claims” are those claims of owned or controlled patents by me, including those claims acquired after the date of this agreement, that are necessary to implement [[only][Is there a need to explicitly stress the dependency on required portions?]] the required portions [[(including the required elements of optional portions)][in what way should optional portions be covered]] of the Specification that are described in detail and not merely referenced in the Specification.

6.5.   Related Entities.  “Related Entities” means any entity that Controls the Bound Entity (“Upstream Entity”), and 2) any other entity that is Controlled by an Upstream Entity that is not itself a Bound Entity. 

6.6.   Specification.  “Specification” means the ____________ version _____ specification.

6.7.   You.  “You” means any person or entity who seeks to publish or practice the intellectual property in the Specification.

By:                                                                                                                  

                                    (Authorized Signature)

On Behalf of:    □ Individual

                       □                                                                       

                (Highest level Bound Entity that is bound to this agreement)

Date: