Challenge of Patent Rights. Except at prohibited by Applicable Law, in the event AveXis institutes any legal action challenging the validity and/or enforceability of any of the AskBio Patent Rights during the Term of this Agreement, AskBio shall have the right, upon written notice to AveXis terminate this Agreement.
Challenge of Patent Rights. Should Licensee, its Affiliate or any Sublicensee bring, directly or through a third party indirectly, an action challenging the validity, scope or enforceability of any Patent Rights, Licensee, the Affiliate or the Sublicensee will first provide CSMC with at least [***] days’ prior written notice that it intends so to do before filing such a challenge. Following the giving of such notice, Licensee, the Affiliate or the Sublicensee will continue to pay to CSMC any Royalties due hereunder at the applicable rate during the pendency of such action. Should the outcome of an action described in the first sentence of this Section 4.2(c) determine that any contested claim of a patent challenged by Licensee, the Affiliate or the Sublicensee is valid and infringed and enforceable against a Product, Licensee or the Affiliate or Sublicensee bringing the challenge, as applicable, will thereafter (i) pay to CSMC the Royalties due hereunder at the rate of [***] the applicable rate for all Products sold that would infringe such claim; and (ii) reimburse CSMC for all costs actually incurred by CSMC in connection with the applicable legal proceedings. In the event that a challenge of Patent Rights brought by Licensee, an Affiliate or a Sublicensee is partially or entirely successful, Licensee, the Affiliate and the Sublicensee will have no right to recoup any Royalties or other amounts paid before or during the period of the challenge. Notwithstanding anything to the contrary, this Section 4.2(c), above, shall not apply with respect to challenges that arise in connection with any arguments, or any other statements or allegations, made by or on behalf of Licensee, its Affiliate or any Sublicensee that (A) distinguish the inventions claimed in patents or patent applications owned or controlled (except by virtue of this Agreement) by Licensee, its Affiliate or any Sublicensee from those claimed in the Patent Rights (1) in the ordinary course of prosecution of such patents or patent applications owned or controlled by Licensee, its Affiliate or any Sublicensee, including any reissue or reexamination patents or patent applications or (2) in inter partes, post grant review proceedings, oppositions, nullity proceedings, reissue proceedings, reexamination proceedings, and other similar proceedings before the U.S. Patent and Trademark Office or other agency or tribunal in any jurisdiction, or in any arbitration or litigation, wherein such patents or patent applications owned or con...
Challenge of Patent Rights. 11.4.1 If Selecta commences any legal proceeding (or if Selecta assists any Third Party in commencing any legal proceeding) that challenges the validity or enforceability of any Patent Rights within the AskBio Core Technology or AskBio Patent Rights, AskBio shall have the right to terminate this Agreement upon thirty (30) days’ prior written notice; provided, however, that if Selecta or such Third Party withdraws such challenge during such thirty (30)-day period, AskBio may not terminate this Agreement for such challenge. In the event that at least one claim of a patent that is subject to a challenge survives the challenge by not being found invalid or unenforceable, regardless of whether the claim is amended as part of the challenge, Selecta shall pay all reasonable costs and expenses incurred by AskBio (including attorneys’ fees and expert witness fees) in connection with defending such challenge.
11.4.2 If AskBio commences any legal proceeding (or if AskBio assists any Third Party in commencing any legal proceeding) that challenges the validity or enforceability of any Patent Rights within the Selecta Core Technology or Selecta Patent Rights, Selecta shall have the right to terminate this Agreement upon thirty (30) days’ prior written notice; provided, however, that if AskBio or such Third Party withdraws such challenge during such thirty (30)-day period, Selecta may not terminate this Agreement for such challenge. In the event that at least one claim of a patent that is subject to a challenge survives the challenge by not being found invalid or unenforceable, regardless of whether the claim is amended as part of the challenge, AskBio shall pay all reasonable costs and expenses incurred by Selecta (including attorneys’ fees and expert witness fees) in connection with defending such challenge.
11.4.3 Notwithstanding anything to the contrary in this Section 11.4, termination under this Section 11.4 is not permitted for any counterclaim or defense made, filed or maintained by a Party in any patent infringement claim, demand, lawsuit, cause of action or other action made, filed or maintained by the other Party or its Affiliate.
Challenge of Patent Rights. In the event that Licensee challenges the validity or enforceability of any of the Patent Rights, Licensee agrees that Licensor shall have the right, but not the obligation, to terminate this Agreement immediately upon providing written notice of the same to Licensee.
Challenge of Patent Rights. A. SPECIALTY covenants and agrees, on behalf of itself and its Affiliates, not to initiate or maintain any opposition, challenge, compulsory license application or the like with respect to the Patent Rights, nor initiate or maintain any proceeding, civil or otherwise, seeking any monetary or other remedy against Chiron or any of its licensees in connection with (i) any licenses in respect of the Patent Rights, or (ii) any act or omission of Chiron relating thereto.
B. SPECIALTY covenants and agrees, on behalf of itself and its Affiliates, not to support any third party in any opposition, challenge, compulsory license application or the like with respect to the Patent Rights nor support any third party in any proceeding, civil or otherwise, seeking any monetary or other remedy against Chiron or any of its licensees in connection with (i) any licenses in respect of the Patent Rights in any jurisdiction; (ii) the performance of any Licensed Assays under the Patent Rights; or (iii) any act or omission of Chiron relating thereto. As used herein, “support” of a third party challenge or application shall mean any of (i) financial support of a third party, (ii) delivery of information to a third party under an obligation of confidentiality, or (iii) active participation in any proceeding initiated by a third party, where such third party is challenging the validity or enforceability of any such claims within the Patent Rights or seeking compulsory licensing of any such claims within the Patent Rights. BAYER may, from time to time, reasonably request SPECIALTY to provide written confirmation of the absence of any such support activities. As used in this paragraph, the term “support” shall not include any action which SPECIALTY is obligated to perform pursuant to a contract in effect as of the Effective Date, or any compulsory judicial process or proceeding.
1. SPECIALTY shall not be liable for monetary or other damages for violation of this provision, except as related to court-ordered sanctions, as determined by such court in its reasonable discretion for failure to comply with an injunction previously issued under this provision, or for sanctions under Federal Rules of Civil Procedure Rule 11 or any state or local equivalents. BAYER shall not have the right to terminate this Agreement or be excused from performing its obligations under this Agreement because of a violation of this provision; provided, however, that BAYER retains its rights to terminate the Licens...
