Patent Cooperation Agreement - Microsoft & Novell Interoperability Collaboration

Published: November 2, 2006 | Updated: July 5, 2007
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Covenant to Customers

Microsoft, on behalf of itself and its Subsidiaries (collectively “Microsoft”), hereby covenants not to sue Novell’s Customers and Novell’s Subsidiaries’ Customers for infringement under Covered Patents of Microsoft on account of such a Customer’s use of specific copies of a Covered Product as distributed by Novell or its Subsidiaries (collectively “Novell”) for which Novell has received Revenue (directly or indirectly) for such specific copies; provided the foregoing covenant is limited to use by such Customer (i) of such specific copies that are authorized by Novell in consideration for such Revenue, and (ii) within the scope authorized by Novell in consideration for such Revenue. For the avoidance of doubt, the “received Revenue” requirement above is deemed satisfied with respect to such Customer receiving from Novell a free update to a component of a specific copy of a Covered Product for which Novell has previously received Revenue, but is not satisfied with respect to such Customer receiving a free upgrade or a new version of such specific copy unless Novell has received Revenue (directly or indirectly) for such upgrade or new version.

For specific copies of Covered Products distributed by Novell for Revenue before the end of the Term, the foregoing covenant shall apply as to all Covered Patents, including Captured Patents. For specific copies of Covered Products distributed by Novell for Revenue after the end of the Term, the foregoing covenant shall apply only as to Captured Patents.

Also, the foregoing covenant will apply to Novell’s customers' and its developers' use of copies of Covered Products distributed by Novell that are in development (including, without limitation, work in process; trial, alpha, beta and release candidate versions; and other versions of products intended for but not yet generally released for Revenue on a commercial basis), even if Novell does not receive Revenue in connection therewith, provided that such copies are solely provided for development, testing or evaluation purposes and support thereof, if any, continues for no longer than one-hundred eighty (180) days from distribution. In any case, the covenant granted pursuant to this paragraph shall expire as to such customers and developers one-hundred eighty (180) days from distribution to such customers and developers.

Definitions of capitalized terms used above may be found in the Definitions section below.

Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the Patent Cooperation Agreement between Novell and Microsoft that was publicly announced on November 2, 2006; however, the covenant as set forth above will continue as to specific copies of Covered Products distributed by Novell for Revenue before such update.

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Definitions – Covenant to Customers

“Captured Patents” means Covered Patents entitled, in whole or in part, to an effective filing date on or before January 1, 2001 (i) which a granting party or any of its Subsidiaries owns or controls as of the Effective Date, or (ii) under which (and to the extent to which) a granting party or any of its Subsidiaries has as of the Effective Date the ability or right to grant a release, covenant not to sue or other freedom from suit.

“Covered Patents” means Patents entitled, in whole or in part, to an effective filing date on or before the end of the Term (i) which a granting party or any of its Subsidiaries now or hereafter during the Term owns or controls, or (ii) under which (and to the extent to which) a granting party or any of its Subsidiaries now or hereafter during the Term has the ability or right to grant a release, covenant not to sue or other freedom from suit. Covered Patents do not include Extendible Third Party Patents.

“Covered Products” of a Party means all products and services sold, licensed, supplied, distributed or otherwise made available by such Party except for Foundry Products, Clone Products and Other Excluded Products (collectively, “Excluded Products”).

“Customers” means an entity or individual that utilizes a specific copy of a Covered Product (or, for purposes of Sections 4.2 and 7.3, any product or service of a Party) for its intended purpose as authorized by a Party in consideration for Revenue (directly or indirectly) to such Party. Entities or individuals are not Customers when they (1) resell, license, supply, distribute or otherwise make available to third parties such specific copy or additional copies of the Covered Product (or, for purposes of Sections 4.2 and 7.3, any product or service of a Party) they otherwise utilize as a Customer; or (2) resell, license, supply, or distribute the output of SDKs or embedded developer kits they utilize as a Customer. For avoidance of doubt, an entity or individual cannot qualify both as a Customer and Distributor for use of the same copy of any given product or service.

“Revenue” means any consideration to a Party that is reasonably attributable to a Covered Product (or, for purposes of Sections 1.7(i) and 4.2, and the definition of “Customers” as used only in Sections 4.2 and 7.3, any product or service of a Party). Revenue includes without limitation (a) consideration for any (i) sale or license of Covered Products or the sale or license of the services of Covered Products, (ii) warranties, indemnification or updates for Covered Products, (iii) maintenance, upgrades, upgrade protection, service, premium service packages, subscription, consulting, installation and support contracts for Covered Products, (iv) user or device access rights to Covered Products, and (v) hosting by a Party of Covered Products for the benefit of third parties, and (b) for purposes of Sections 1.7(i) and 4.2, and the definition of “Customers” as used only in Sections 4.2 and 7.3, the consideration described in the foregoing subsection (a) with respect to any products or services of a Party.

“Subsidiary” means any entity (a) more than fifty percent (50%) of whose outstanding shares or securities representing the right to vote for the election of directors or other managing authority are, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only so long as such ownership or control exists; or (b) which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such entity is, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only so long as such ownership or control exists.

“Term” means the period beginning on the Effective Date and ending on January 1, 2012, unless (and for so long as) extended pursuant to Section 7.6, provided that, notwithstanding the foregoing, the Term will end on the date of termination of this Agreement.

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Frequently Asked Questions

Technical Cooperation Agreement

Patent Cooperation Agreement

An Open Letter on Patents

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An Open Letter to the Community

Community Support for the Announcement

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