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Patent Pledge

PLEASE READ THIS PLEDGE CAREFULLY.  BY CLICKING “ACCEPT” YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS PLEDGE.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS PLEDGE.  IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS PLEDGE, THEN THIS PLEDGE WILL NOT APPLY TO YOU.

1. Introduction. Varro, Inc. (Varro) is engaged in the research, design, development, manufacturing and production of novel infectious disease detection devices and diagnostic tools including hardware for detecting airborne pathogens using special micro-immunoelectrode biosensors with potential for broader applications in the detection of an array of pathogens, including but not limited to applications for SARS-CoV-2 and other airborne pathogens (whether via aerosols, droplets, or any other form routinely considered airborne transmission). The Varro technology is a platform that also has potential for broader applications beyond the detection of pathogens.

As with any platform technology, Varro believes that there are opportunities to innovate beyond what has been currently been conceived. This pledge, which embodies Varro’s founding ethos, is intended to encourage global innovation of Varro’s biosensor platform and support the advancement of medical science and biotechnology, and to ensure equitable global medical access, thereby benefiting Varro, other medical and biotechnology companies, and individuals across the world, regardless of income.

The below guidelines demonstrate our commitment to the foregoing advancements and detail how Varro is implementing its open source development model.

2. Definitions.
   • “Pledge” means the pledge in Section 3 below.
   • “Pledged Patents” means (i) all of the patents and patent applications listed at [https://www.VarroBio.com], (ii) all future patents exclusively owned by Varro, regardless of whether we have posted such patents online, and (iii) patents jointly developed by Varro and a third party (such patents, “Jointly Developed Patents”).
   • “Varro Open Source Products” means any product (including hardware) based on a design that Varro has released under the terms of the Creative Commons Attribution – ShareAlike 4.0 International license at https://creativecommons.org/licenses/by-sa/4.0/deed.en, or on improvements, enhancements or derivatives of or relating to such design, as well any designs that are disclosed in the Pledged Patents as defined below, or on improvements, enhancements or derivatives of or relating to such design.
   • “Varro Derived Open Source Software” means any software based on source code or object code that Varro has released under the terms of the GNU General Public License, Version 3, released June 29, 2007 available at https://www.gnu.org/licenses/gpl-3.0.en.htmlor GNU Affero General Public License, Version 3, released November 19, 2007 available at https://www.gnu.org/licenses/agpl-3.0.en.html or any similar open source license that satisfies any version of “The Open Source Definition” provided by the Open Source Initiative at opensource.org/osd or any version of “The Free Software Definition” provided by the Free Software Foundation at gnu.org/philosophy/free-sw.html.
   • “Varro”, “our”, or “we” means Varro, Inc.
   • “You” means any individual or entity that uses or accesses or exercises any rights in the Pledged Patents.

3. Pledge. Other than as described in the “Defensive Termination” section below, we pledge to each person or entity that manufactures, develops, sells, offers for sale, distributes, imports, exports or uses any (a) Varro Open Source Products or (b) Varro Derived Open Source Software (in each case, in compliance with any applicable licenses under which they are distributed by Varro), that Varro will not bring a lawsuit or other legal proceeding against you for patent infringement under any Pledged Patents based on your development, manufacture, use, sale, offer for sale, lease, license, exportation, importation or distribution of such Varro Open Source Products or Varro Derived Open Source Software in such manner, provided that, with respect to Jointly Developed Patents, Varro is only making this Pledge with respect to our right to bring a legal proceeding for patent infringement and does not represent that a third party will honor this Pledge. As a condition of benefiting from the preceding pledge, you shall ensure that, to the extent applicable, each Open Source Product  and Varro Derived Open Source Software that you manufacture, develop, sell, offer for sale, distribute, import, export or uses is marked with the appropriate patent numbers of the applicable Pledged Patent(s), in accordance with each country’s patent laws. The preceding pledge does not apply to any infringement of the Pledged Patents by Varro Derived Open Source Software combined with special purpose hardware or with software that is not Varro Derived Open Source Software.

4. Legal Effect. It is Varro’s intent that this Pledge is legally binding and enforceable against Varro and its controlled affiliates, and their successors and assigns (“Varro Parties”). Accordingly, if a Varro Party sells, exclusively licenses, assigns, or otherwise transfers a Pledged Patent to any person or entity, that Varro Party will be obligated to require that person or entity to agree, in writing, to abide by the Pledge and to require the same of any subsequent transferees.

5. No Warranties or Assurances. Other than what we’ve explicitly described in the Pledge, there are no other rights, licenses, or obligations are undertaken, granted, received, or waived—whether by implication, estoppel, or otherwise by this Pledge. Additionally, Varro cannot guarantee that the Pledge may be honored in all jurisdictions. The Pledge is not an assurance that any of the Pledged Patents do or may cover any particular software or hardware or are enforceable or that any activities covered by the Pledge will not infringe patents or other intellectual property rights of a third party. This Pledge does not cover patents owned exclusively by third parties, and with respect to any Jointly Developed Patents, it only extends to our ability to waive our rights in such Jointly Developed Patents, and not any other third party. Neither a Varro Party nor its licensors will be liable to a party relying on the Pledge for related claims brought by another party based on infringement of intellectual property rights or otherwise.  Without limiting the foregoing, each Varro Party (on behalf of itself and its licensors) hereby disclaims all warranties, express or implied, related to the subject matter of the Pledge, including without limitation warranties of merchantability, fitness for a particular purpose, and non-infringement. 

6. Defensive Termination. Varro makes this Pledge to foster innovation in detecting, diagnosing and combating infectious diseases, and other related technologies and areas that may be able to benefit from Varro Open Source Products. To that end and to avoid the possibility that someone may abuse the Pledge, the Varro Parties reserve the right (“Defensive Termination”) to terminate the Pledge at any time with respect to any person or entity if that person or entity (or an affiliate or agent thereof) engages in any of the following activity:
   • Files (or threatens to file, whether orally or in writing) a lawsuit or other proceeding alleging patent infringement based, in whole or in part, on any products or services developed, used, imported, manufactured, offered for sale, sold, or distributed by or on behalf of a Varro Party;
   • Challenges (or threatens to challenge, whether orally or in writing) in a lawsuit, opposition, inter partes review, or other proceeding the validity or enforceability of a Pledged Patent;
   • Has a financial interest in, or provides voluntary assistance to the filing or prosecution of, any proceeding or challenge as described in (a) or (b);
   • Previously owned or controlled a patent that is asserted as described in paragraph (a); or
   • Engages in illegal activity as determined by a competent jurisdiction pursuant to the rules of due process and the like in said jurisdiction.

No delay or omission by a Varro Party in exercising its right of Defensive Termination will impair or be construed as a waiver of such right by any Varro Party.

If a Varro Party terminates the Pledge pursuant to this section, that termination will void the Pledge ab initio. That is to say, it will have the same effect as if the Pledge had never been extended to that person or entity in the first instance. Varro, in its sole discretion, shall determine if and when, and the manner and terms on which, the Pledge shall again extend to that person or entity after a Varro Party has exercised Defensive Termination.

7. U.S. Manufacturing Obligations. You agree and acknowledge that: (a) certain Pledged Patents arose from federally supported research and therefore, in accordance with Public Laws 96-517, 97-256, and 98-620, codified at 35 U.S.C. §§ 200-212, the United States government retains certain rights to inventions claimed in such Pledged Patents; (b) under such laws and implementing regulations, the government may impose requirements on such inventions; (c) Varro Open Source Products manufactured by you or on your behalf embodying such inventions sold in the United States must be substantially manufactured in the United States; and (d) the license rights granted in this Pledge are expressly made subject to such laws and regulations as amended from time to time.  You agree to abide by all such laws and regulations to the extent they are applicable to you, until such time as Varro is able to attain a valid domestic manufacturing waiver.

For questions regarding this Pledge and any requirements listed above, please reach out at opensource@varrobio.com.