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market, or for each computer system manufactured and sold by the
foreign OEM’s.
The OEM agreements required the foreign OEM’s to make minimum
commitment payments quarterly. To the extent earned royalties
exceeded the cumulative minimum commitment payments, the foreign
OEM’s were required to pay petitioner for actual earned royalties.
To the extent cumulative minimum commitment payments exceeded actual
earned royalties, the excess was considered prepaid royalties and
was recoupable against future earned royalties during the term of
the license agreement.
The standard OEM agreement was for a 2-year term. The foreign
OEM’s generally extended their relationship with petitioner by
entering into subsequent agreements licensing later releases and
versions of the same software.
The proprietary information petitioner transferred to the
foreign OEM’s (pursuant to the standard OEM agreement) was
maintained as a trade secret. The parties have stipulated that this
proprietary information included algorithms, processes, formulas,
and designs.
The foreign OEM’s could also license petitioner’s source code
for specific products pursuant to a separate, royalty-bearing
license arrangement (source code license). A source code license
authorized the foreign OEM to use the source code solely for
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