ADAT » Topics » 6. Intellectual Property.

This excerpt taken from the ADAT 10-K filed Sep 24, 2009.

Intellectual Property

Other companies operating in our market may independently develop substantially equivalent proprietary information or otherwise obtain access to our know-how. In addition, there can be no assurance that we will be able to afford the expense of any litigation which may be necessary to enforce or defend our rights under any patent. Although we believe that the software, services and products we sell do not and will not infringe upon the patents or violate the proprietary rights of others, it is possible that such infringement or violation has occurred or may occur. In the event that the software, services and products we sell are deemed to infringe upon the patents or proprietary rights of others, we could be required to modify our offerings or obtain a license for the use and/or sale of such products. There can be no assurance that, in such an event, we would be able to do so in a timely manner, upon acceptable terms and conditions, or at all, and the failure to do any of the foregoing could have a material adverse effect upon our business. In addition, if our current or proposed offerings are deemed to infringe upon the patents or proprietary rights of others, we could, under certain circumstances, become liable for damages or subject to an injunction, which could also have a material adverse effect on our business. It is our policy to investigate allegations of third party intellectual property rights to the extent that they are brought to our attention or to the extent that we become independently aware of such third party intellectual property rights to ensure that our current and proposed software and services do not infringe on any such rights. Although we have not received notice of any other claims that our software or services are infringing, we can not provide any assurances that our software or services do not infringe upon any other patents, including the patents that we have investigated.

This excerpt taken from the ADAT 10-K filed Sep 26, 2008.

Intellectual Property

Other companies operating in our market may independently develop substantially equivalent proprietary information or otherwise obtain access to our know-how. In addition, there can be no assurance that we will be able to afford the expense of any litigation which may be necessary to enforce or defend our rights under any patent. Although we believe that the software and services we sell do not and will not infringe upon the patents or violate the proprietary rights of others, it is possible that such infringement or violation has occurred or may occur. In the event that the software or services we sell are deemed to infringe upon the patents or proprietary rights of others, we could be required to modify our software or services or obtain a license for the use and/or sale of such products. There can be no assurance that, in such an event, we would be able to do so in a timely manner, upon acceptable terms and conditions, or at all, and the failure to do any of the foregoing could have a material adverse effect upon our business. In addition, if our current or proposed software or services are deemed to infringe upon the patents or proprietary rights of others, we could, under certain circumstances, become liable for damages or subject to an injunction, which could also have a material adverse effect on our business. It is our policy to investigate allegations of third party intellectual property rights to the extent that they are brought to our attention or to the extent that we become independently aware of such third party intellectual property rights to ensure that our current and proposed software and services do not infringe on any such rights. Although we have not received notice of any other claims that our software or services are infringing, we can not provide any assurances that our software or services do not infringe upon any other patents, including the patents that we have investigated.

These excerpts taken from the ADAT 10-K filed Sep 13, 2007.

Intellectual Property

Other companies operating in our market may independently develop substantially equivalent proprietary information or otherwise obtain access to our know-how. In addition, there can be no assurance that we will be able to afford the expense of any litigation which may be necessary to enforce or defend our rights under any patent. Although we believe that the software and services we sell do not and will not infringe upon the patents or

 

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violate the proprietary rights of others, it is possible that such infringement or violation has occurred or may occur. In the event that the software or services we sell are deemed to infringe upon the patents or proprietary rights of others, we could be required to modify our software or services or obtain a license for the use and/or sale of such products. There can be no assurance that, in such an event, we would be able to do so in a timely manner, upon acceptable terms and conditions, or at all, and the failure to do any of the foregoing could have a material adverse effect upon our business. In addition, if our current or proposed software or services are deemed to infringe upon the patents or proprietary rights of others, we could, under certain circumstances, become liable for damages or subject to an injunction, which could also have a material adverse effect on our business. These matters are discussed more fully in Item 3 “Legal Proceedings”. It is our policy to investigate allegations of third party intellectual property rights to the extent that they are brought to our attention or to the extent that we become independently aware of such third party intellectual property rights to ensure that our current and proposed software and services do not infringe on any such rights. Although we have not received notice of any other claims that our software or services are infringing, we can not provide any assurances that our software or services do not infringe upon any other patents, including the patents that we have investigated.

D. INTELLECTUAL PROPERTY

 

  1) Trademark Use: Sublicensee acknowledges that the USPS Trademarks are trademarks owned solely and exclusively by the USPS and agrees to use the USPS Trademarks only in the form and manner (with appropriate legends) prescribed by the USPS and approved by USPS. Sublicensee agrees not to use any other trademark or service mark in connection with any of the USPS Trademarks without prior written approval of USPS, which approval shall not be unreasonably withheld or delayed. Sublicensee agrees to mark all advertising and other materials that include the USPS Trademarks with a legend indicating that the USPS Trademarks are the property of the USPS and that they are being used under license from the USPS, together with any other legends or markings that may be required by law. All use of the USPS Trademarks shall inure to the benefit of the USPS.

 

  2) Quality Control: To assure that the production, appearance, and quality of services under the USPS Marks are consistent with the USPS’s reputation for high quality and with the goodwill associated with the USPS Marks, and to ensure the preservation of the USPS Marks and the rights associated with them, Sublicensee agrees to take no steps to negatively affect:

 

  a) EPM Services’ compliance with all applicable USPS regulations, and all relevant Federal, state, and local laws, regulations, and ordinances.

 

  b) Maintaining of the technical performance, process and security standards for the EPM Service hardware and software infrastructure in accordance with USPS ISA process standards (or equivalent standards) as defined by the USPS.

 

  3) Approval Process: To ensure that the appearance of the USPS Marks is appropriate and proper and to facilitate the preservation of the Postal Service’s rights in USPS Marks, Sublicensee agrees to the following:

 

  a) Sublicensee agrees that it will not use the USPS Marks in a manner that is likely to be viewed as violent, sexually provocative, offensive, obscene, in violation of “hate crime” laws, or otherwise likely to shock or offend the community or in such a way as to bring the Postal Service, its officers, employees, or Board of Governors, or any other of its trademarks, service marks or logos into public disrepute, scandal or ridicule, or that derogates from the public image or reflects unfavorably or negatively upon them.

 

  b)

Sublicensee shall not use or publicly display or distribute any material (hard copy or soft copy) displaying the USPS Marks (the “Material”) unless the Postal Service has reviewed and

 

Confidential

 

[*CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [****], HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]

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approved that use of the USPS Marks in writing, which approval shall not be unreasonably withheld or delayed. Sublicensee shall not depart from the approved Materials in any material respect without the Postal Service’s prior written approval, which approval shall not be unreasonably withheld or delayed. The Postal Service will make best efforts to inform Sublicensee of its approval or disapproval in writing within ten (10) business days of any request from Sublicensee. Failure to approve or disapprove within such ten (10) business day period shall always be deemed disapproval. After the ten (10) day period, Sublicensee should immediately (if desired) resubmit its Material and/or telephone to request an explanation of the disapproval, but in no event will the lack of a response from the Postal Service ever be taken as approval.

 

Confidential

 

[*CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [****], HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]

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This excerpt taken from the ADAT 8-K filed Jul 3, 2007.

INTELLECTUAL PROPERTY

8.1 The CEO shall notify to the Company all inventions made by him relating to the business of the Company, to the CEO’s activities and tasks or the experiences and works of the Company. Upon their origination, all commercial rights in and to such inventions shall exclusively be owned by the Company. The notification shall be sent to Supervisory Board immediately in writing- and shall contain all information useful for the execution of the invention, for the wording of patent applications based on the invention (including drawings)


and for the commercial exploitation of the invention. The CEO will further assist and advise the Company in connection with the filing of such intellectual property rights applications on behalf of the Company.

8.2 The obligation under Section 8.1 shall apply accordingly to technical improvements which are not subject to patent or utility model protection (technical improvements).

8.3 Without prejudice to Sections 8.1 and 8.2, the CEO herewith assigns to the Company ownership in and title to and/or (to the extent ownership and title may not be transferred to the Company according to the applicable law, such as German copyright law), the exclusive and transferable right of use and exploitation, for all kinds of use and unrestricted in time, territory and content, for all work output which is capable of copyright protection or of protection as a patent or utility patent, trademark, trade dress, registered design and/or utility model, trade and business names, sui-generis data base rights, neighbouring rights, or any other intellectual property right which the CEO produces or for which he submits an application for registration anywhere in the world (“Intellectual Property Rights”) during the period of his Service Relationship during his working hours or even outside of his working hours, insofar as they relate to his duties under this Service Agreement and/or are made using materials of the Company. As far as software is concerned, this transfer of rights extends to all development stages and includes, in particular, the source code. The Company shall be entitled to use the work output without limitation, which includes reproduction, distribution, dissemination, modification and adaptation, enhancements, translation into all languages, making publicly available, broadcasting and public dissemination via all modes of transfer and all transmission channels. In respect of software, aforesaid transfer of rights includes, without limitation, the right to decompile and reverse-engineering such software, produce updates and upgrades and to combine the software with or integrate it into other programs or systems, and to convert it into other programming languages and for other operating systems. The assignment of any use and exploitation rights hereunder includes the authorization to the issue of licenses and sublicenses to third parties.

8.4 In respect of copyrights, the general transfer of all Intellectual Property Rights as stipulated above by the CEO to the Company shall also include future works within the meaning of Section 40 UrhG. Section 40 (1) sentence 2 and 3 UrhG shall remain unaffected by the transfer of such utilization rights in and to the future works of the CEO. The CEO waives irrevocably and unconditionally the right to decide on the publication of his work output (Section 12 UrhG), the right to be named as an author of copyrights and neighbouring rights in the work output (Section 13 UrhG) and the right of access according to Section 25 UrhG.


8.5 The CEO agrees that he will execute such deeds and documents and do such other acts and things as may be necessary or desirable in the reasonable opinion of the Company to substantiate, protect and/or maintain the Intellectual Property Rights in any and all of his work output and to vest the Intellectual Property Rights in any and all work output in the Company.

8.6 The CEO shall not receive any additional remuneration in consideration of any former or future grant of rights under this ARTICLE VIII, since this is fully compensated for by the Base Salary of the CEO. Any claims in this regard shall be forfeited.

This excerpt taken from the ADAT 10-K filed Sep 13, 2006.

Intellectual Property

Other companies operating in our market may independently develop substantially equivalent proprietary information or otherwise obtain access to our know-how. In addition, there can be no assurance that we will be able to afford the expense of any litigation which may be necessary to enforce or defend our rights under any patent. Although we believe that the products and services we sell do not and will not infringe upon the patents or violate the proprietary rights of others, it is possible that such infringement or violation has occurred or may occur. We are currently defending claims by TimeCertain LLC that alleges patent infringement and by Shore Venture Group that alleges ownership rights regarding our intellectual property. We do not believe we infringe on any rights of TimeCertain LLC and we believe that we own or have all necessary rights and/or licenses to our intellectual property and are defending these matters vigorously. In the event that products we sell are deemed to infringe upon the patents or proprietary rights of others, we could be required to modify our products or obtain a license for the manufacture, use and/or sale of such products. There can be no assurance that, in such an event, we would be able to do so in a timely manner, upon acceptable terms and conditions, or at all, and the failure to do any of the foregoing could have a material adverse effect upon our business. In addition, if our products or proposed products are deemed to infringe upon the patents or proprietary rights of others, we could, under certain circumstances, become liable for damages or subject to an injunction, which could also have a material adverse effect on our business. These matters are discussed more fully in Item 3 “Legal Proceedings”. It is our policy to investigate allegations of third party intellectual property rights to the extent that they are brought to our attention or to the extent that we become independently aware of such third party intellectual property rights to ensure that our current and proposed products and services do not infringe on any such rights. Although we have not received notice of any other claims that our products are infringing, we can not provide any assurances that our commercial products do not infringe upon any other patents, including the patents that we have investigated.

This excerpt taken from the ADAT 10-K filed Sep 13, 2005.

INTELLECTUAL PROPERTY

Other companies operating within our business segment may independently develop substantially equivalent proprietary information or otherwise obtain access to our know-how. In addition, there can be no assurance that we will be able to afford the expense of any litigation which may be necessary to enforce our rights under any patent. Although we believe that the products we sell do not and will not infringe upon the patents or violate the proprietary rights of others, it is possible that such infringement or violation has occurred or may occur. On August 25, 2005, we became aware of an action filed against us entitled TimeCertain LLC vs. Authentidate Holding Corporation, Authentidate, Inc. and NCipher Inc. The plaintiff in this matter has claimed that our products and systems incorporating secure time-stamping technology, including but not limited to the USPS Electronic Postmark system, infringes certain of its patent rights. We are reviewing this complaint and intend to vigorously contest this action. We have investigated other patents held by third parties of which we are aware to determine whether any of our current products infringe on the claims made in these patents and believe that our products do not infringe on these patent claims. Although we have not received notice of any other claims that our products are infringing, we can not provide any assurances that our commercial products do not infringe upon any other patents, including the patents that we have investigated. As described below, we are currently defending a claim by Shore Venture Group, in which it alleges, among other things, rights under one of our patent applications and damages in connection with an alleged copyright infringement. Prior to the commencement of this case, we had conducted extensive settlement negotiations with Shore Venture in an effort to resolve all claims between the parties and are defending this action vigorously.

In the event that products we sell are deemed to infringe upon the patents or proprietary rights of others, we could be required to modify our products or obtain a license for the manufacture, use and/or sale of such products. There can be no assurance that, in such an event, we would be able to do so in a timely manner, upon acceptable terms and conditions, or at all, and the failure to do any of the foregoing could have a material adverse effect upon our business. Moreover, there can be no assurance that we will have the financial or other resources necessary to enforce or defend a patent infringement or proprietary rights violation action. In addition, if our products or proposed products are deemed to infringe upon the patents or proprietary rights of others, we could, under certain circumstances, become liable for damages or subject to an injunction, which could also have a material adverse effect on our business.

 

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This excerpt taken from the ADAT 10-Q filed Feb 9, 2005.
6. Intellectual Property. In consideration of the retention of Consultant by the Company, and free of any additional obligations of the Company to make additional payment to Consultant, Consultant agrees to promptly disclose and irrevocably assign to the Company any and all inventions, software (including source code and source code documentation for all computer programs developed or modified), manuscripts, documentation, improvements or other intellectual property whether or not protectible by any state or federal laws relating to the protection of intellectual property, relating to the present or future business of the Company that are developed, conceived or reduced to practice by Consultant, either alone or jointly with others, and whether or not developed during normal business hours or arising within the scope of his duties of employment, during or as a result of performance of this Agreement (all of the foregoing “Intellectual Property”). Consultant agrees that all such Intellectual Property, including without limitation all copyrights, trademarks, trade secrets and patent rights therein, is irrevocably assigned to and shall be and remain the sole and exclusive property of the Company and shall be deemed the product of work for hire. Consultant hereby agrees to execute such assignments and other documents as the Company may consider appropriate to vest all right, title and interest therein to the Company and hereby appoints the Company Consultant’s attorney-in-fact with full powers to execute such document itself in the event employee fails or is unable to provide the Company with such signed documents. This provision does not apply to an invention for which no equipment, supplies, facility, or trade secret information of the Company was used and which was developed entirely on Consultant’s own time, unless (a) the invention relates (i) to the business of the Company, or (ii) to the Company’s actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by Consultant for the Company.

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