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The Oregon Administrative Rules contain OARs filed through June 15, 2014
 
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HOUSING AND COMMUNITY SERVICES DEPARTMENT

 

DIVISION 3

INTELLECTUAL PROPERTY

813-003-0001

Purpose and Objectives

OAR chapter 813, division 003, is promulgated to carry out the provisions of ORS 291.055(c) and 456.562, which relate generally to the Department's authority to license, share or otherwise provide for the use by a Person of intellectual property acquired or developed by the Department.

Stat. Auth.: ORS 183, 456.555
Stats. Implemented: ORS 291.055, 456.562
Hist.: OHCS 4-2004, f. & cert. ef. 11-23-04

813-003-0006

Definitions

(1) "Intellectual Property" as defined in ORS 456.562, means computer programs, software, software tools and data.

(2) "Person" means a person as defined in ORS 174.100, including individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies. "Person" also means a federal, state or local government body, a Native American tribe or an agent or representative of a tribe.

(3) "Licensing Agreement" means the binding contractual instrument between the Department and a Person identifying the terms and conditions by which such Person may use Department Intellectual Property.

(4) "Copyright" means a comprehensive privilege to exclusively print, reprint, publish, copy, translate, dramatize, convert, arrange, adapt, complete, execute, finish, deliver in public, perform and transcribe an original work pursuant to federal law, i.e., 17 USC ¦¦ 1-215; 61 Stat., as amended.

(5) "Department" means the State of Oregon, acting by and through the Housing and Community Services Department established pursuant to ORS 456.555.

(6) "Patent" means an instrument from the federal government granting to original inventors, the exclusive right for a period of time to manufacture, sell and use the invention described therein.

Stat. Auth.: ORS 183, 456.555
Stats. Implemented: ORS 291.055, 456.562
Hist.: OHCS 4-2004, f. & cert. ef. 11-23-04

813-003-0011

Authority to Acquire, Develop, Use, and Share Intellectual Property

The Department may take actions that it deems necessary and appropriate to acquire, develop, use, and allow other Persons to use Intellectual Property. Such actions may include, but are not limited to applying for Patents or Copyright registrations to perfect or preserve its rights with respect to Intellectual Property, employing Intellectual Property for its own use, and requiring other Persons to execute Licensing Agreements and/or other documents satisfactory to the Department as a condition for licensing, sharing or otherwise obtaining use of Intellectual Property from the Department.

Stat. Auth.: ORS 183, 456.555
Stats. Implemented: ORS 291.055, 456.562
Hist.: OHCS 4-2004, f. & cert. ef. 11-23-04

813-003-0015

Guidelines Concerning Acquisition and Use of Intellectual Property

(1) Subject to any superior Patent or Copyright limitations, the Department may, at its reasonable discretion, license, share with, or otherwise provide for the use by a Person of Intellectual Property acquired or developed by the Department. In determining whether or not to allow use of its Intellectual Property, the Department may consider factors including, but not limited to the public interest served in allowing its use, the cost and administrative burden of allowing its use, the furtherance of Department purposes through allowing its use, the potential liability from allowing its use, the Department's experience with the Person, the reputation in the community of the Person, the ability of the Person to pay an appropriate fee for the use of the Intellectual Property, the Person's execution of a Licensing Agreement and/or other documents satisfactory to the Department, and the impact of allowing its use on the ability of the Department to acquire or develop additional Intellectual Property.

(2) Unless specified otherwise in these rules, the Department may charge reasonable fees for the licensing, sharing or other use of its Intellectual Property. Payment of fees may be required on any schedule established by the Department.

(3) When the Department determines to license, share with or otherwise allow the use of any Intellectual Property by a federal, state, or local government body, it will do so without charging a fee.

Stat. Auth.: ORS 183, 456.555
Stats. Implemented: ORS 291.055, 456.562
Hist.: OHCS 4-2004, f. & cert. ef. 11-23-04

813-003-0021

Guidelines for Training and Technical Assistance

(1) The Department may provide training and other technical assistance to Persons who license, share or otherwise use Department Intellectual Property. In determining whether or not to provide training and other technical assistance, the Department may consider factors including, but not limited to its own staffing needs and capabilities, the public interest to be served, the advancement of Department programs, the needs of the Person for whom training and other technical assistance would be provided, the ability of the Person to apply such training and assistance, the ability of the Person to pay for such training and assistance, the Department's experience with the Person, the reputation in the community of the Person, and the Person's execution of a Licensing Agreement and/or other documents satisfactory to the Department.

(2) The Department may charge reasonable fees for providing training and technical assistance with respect to the use of its Intellectual Property. Payment of fees may be required on any schedule established by the Department.

Stat. Auth.: ORS 183, 456.555
Stats. Implemented: ORS 291.055, 456.562
Hist.: OHCS 4-2004, f. & cert. ef. 11-23-04

813-003-0025

Fees

(1) As permitted by ORS 456.562 and these rules, the Department may charge reasonable fees for the licensing, sharing or other use of Intellectual Property. The Department also may charge reasonable fees for providing training and other technical support with respect to the use of Intellectual Property.

(2) In establishing reasonable fees, the Department may consider factors including, but not limited to its costs in acquiring, developing, protecting, maintaining, marketing, licensing (or otherwise allowing the use), and monitoring the use of Intellectual Property generally and of the particular Intellectual Property specifically, the demand for Intellectual Property, market rates for similar or comparable products, Department program needs, the nature and resources of the Person to use the Intellectual Property, the purposes for which the Intellectual Property will be used, and the public interest in its use. Considered costs may include, but are not limited to the relevant time, personnel and materials employed, the allocable portion of indirect costs, and reserves for updating, acquiring, developing, and administering the use of Intellectual Property, as well as for contingencies.

(3) Payment of fees shall be made in the amount and at such time, place and manner as the Department may require.

Stat. Auth.: ORS 183, 456.555
Stats. Implemented: ORS 291.055, 456.562
Hist.: OHCS 4-2004, f. & cert. ef. 11-23-04

813-003-0031

Warranties; Limitation of Liability

(1) The Department shall make no warranty of any kind, express or implied, with respect to any Intellectual Property -- including, but not limited to any warranties of merchantability and fitness for a particular purpose. Any provision in a Licensing Agreement or any other document, or in any statement by an employee or other agent of the Department, purporting to convey any such warranties from the Department is, and shall be deemed, void as an ultra vires act, being made without authority and in contravention of these rules.

(2) The Department's liability arising out of or based upon the licensing, sharing or otherwise provided use of Intellectual Property, regardless of the form in which any legal or equitable action may be brought, including without limitation any action in tort, contract, or pursuant to statute, shall not exceed any fee paid to the Department for the licensing, sharing or use of the Intellectual Property.

(3) The department shall have no liability for indirect, incidental, consequential, special or punitive damages, lost profits, or loss of goodwill (even if it has been advised of the possibility of such damages), arising out of or relating to the licensing, sharing, other use of its intellectual property, including without limitation such matters as interruptions, delays, loss of data, loss of profit, interruption of service, loss of business or anticipatory profits. The foregoing warranty and limitations are in lieu of all other warranties, express or implied, including without limitation the implied warranties of merchantability and fitness for a particular purpose. Any provision in any licensing agreement or other document, or any statement by an employee or other agent of the department purporting to establish any such liability is, and shall be deemed, void as an ultra vires act, being made without authority and in contravention of these rules.

(4) Any Person who licenses, shares or otherwise uses Intellectual Property from the Department, in doing so, agrees to defend, indemnify and hold harmless the Department (consistent with ORS chapter 180) from and against any and all claims, demands, causes of action and liabilities with respect to such license, sharing or other use of the Intellectual Property and/OR any related training or other assistance from the Department with respect to the Intellectual Property.

(5) Any Licensing Agreement or other document providing for the licensing, sharing or other use by a Person of Department Intellectual Property or for training and/or other technical assistance relating to such Intellectual Property, in order to be valid and enforceable against the Department, shall contain language substantially similar to that contained in subparagraphs (1) through (4) of this Section.

Stat. Auth.: ORS 183, 456.555
Stats. Implemented: ORS 291.055, 456.562
Hist.: OHCS 4-2004, f. & cert. ef. 11-23-04

813-003-0035

Waiver

The Department may waive or modify any requirements of OAR chapter 813, division 003, unless such waiver or modification would violate applicable federal or state statutes.

Stat. Auth.: ORS 183, 456.555
Stats. Implemented: ORS 291.055, 456.562
Hist.: OHCS 4-2004, f. & cert. ef. 11-23-04

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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