Competitive Infringement. Subject to any Third Party Rights, the terms of this Section 9.3(a) will apply with respect to any actual or suspected infringement of a Licensor’s Licensed Patent Rights or Regulus Patent Rights by a Third Party making, using or selling a therapeutic product that contains or consists of (y) a xxXXX Compound as an active ingredient [...***...] or (z) if clause (y) does not apply, an oligonucleotide(s) that falls within the field of a Party’s exclusive license under Section 2.3 of this Agreement. In the case of (z) above, the Party with the exclusive license in the field where the infringing product most reasonably falls will be considered the relevant Commercializing Party for purposes of this Section 9.3(a).
(i) Each Party will promptly report in writing to the other Parties any such infringement of which it becomes aware, including, without limitation, receipt of any certification received under the United States Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. Law 98-471), as amended (the “Xxxxx-Xxxxxx Act”), claiming that any of the Licensed Patent Rights or Regulus Patent Rights is invalid, unenforceable or that no infringement will arise from the manufacture, use or sale of such product (a “Paragraph IV Certification”).
(ii) The relevant Commercializing Party will have the initial right, at such Commercializing Party’s expense, to initiate a legal action against such Third Party with respect to such infringement of the Regulus Patent Rights and, if such Commercializing Party is a Licensor, such Commercializing Party’s Licensed Patent Rights. At the Commercializing Party’s reasonable request and expense, the relevant Licensor(s) (if Regulus is the Commercializing Party) or the other Licensor (if a Licensor is the Commercializing Party) will use Commercially Reasonable Efforts to initiate a legal action against such Third Party with respect to an infringement described in clause (y) of this Section 9.3(a) of such other Licensor(s)’ Licensed Patent Rights. Each other Party will join in any such action(s) as a party at the Commercializing Party’s request and at the Commercializing Party’s expense in the event that an adverse party asserts, the court rules or other Laws then applicable provide, or the Commercializing Party determines in good faith, that a court would lack jurisdiction based on such other Party’s absence as a party in such suit. Each other Party may also at any time join in the Commercializing Party’s action and may be ...
Competitive Infringement. As between the Parties, [***].
Competitive Infringement. With respect to any alleged or threatened infringement of any patent included in the Licensed Patents in the Field (“Competitive Infringement”), Company shall have the first right, but not the obligation, to bring and control any action or proceeding with respect to such Competitive Infringement at its own expense and by counsel of its own choice, and Licensor shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. If Company fails to bring an action or proceeding with respect to a Competitive Infringement within (A) sixty (60) days following the notice of alleged infringement or (B) ten (10) days before the time limit, if any, set forth in the applicable laws and regulations for the filing of such actions, whichever comes first, Licensor shall have the right to bring and control any action or proceeding with respect to such Competitive Infringement at its own expense and by counsel of its own choice, and Company shall have the right, at its own expense, to be represented in any such action by counsel of its own choice.
Competitive Infringement. (i) Licensee shall have the first right, but not the obligation, to bring or defend and control any action or proceeding with respect to Competitive Infringement (including to defend any declaratory judgment action or claim) of a Licensor Patent Right that covers a Product in the Field (collectively, the “Relevant Patent Rights”), at Licensee’s own expense and by counsel of its own choice. Licensor will join as a party to any such suit or action as necessary. Notwithstanding the preceding, to the extent strategic or other decisions or actions with respect to any such proceeding are reasonably likely to have a potential impact on Licensor Patent Rights which are not Relevant Patent Rights, Licensee shall consult with Licensor prior to making any such decision or taking any such action and will not take such action without the written consent of Licensor, which shall not be unreasonably withheld, delayed or denied. Each Party will recover any of its expenses incurred in connection with the subject infringement claim from amounts recovered. Licensee shall be entitled to retain any compensatory or other damages or recovery recovered from any action related to Competitive Infringement brought by Licensee subject to the payment of the Royalty to Licensee on such amount as if such amount was Net Sales.
(ii) If Licensee fails to bring any such action or proceeding with respect to Competitive Infringement of any Relevant Patent Right within ninety (90) days (or such shorter period of time as may be reasonably required to avoid the loss or impairment of any legal rights with respect to such Competitive Infringement) following the notice of alleged Competitive Infringement, Licensor shall have the right to bring (or defend) and control any such action at its own expense and by counsel of its own choice, and Licensee shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. Licensor shall be entitled to retain all amounts recovered from any action brought by Licensor pursuant to this Section 7.3(a)(ii).
Competitive Infringement. As between the Parties, Amgen will have the first right, but not the obligation, to seek to xxxxx any actual or suspected Competitive Infringement of any Product Candidate Claims by a Third Party, or to file suit against any such Third Party for such Competitive Infringement. If Amgen does not take steps to xxxxx the any such Competitive Infringement, or file suit to enforce the Product Candidate Claims against such Third Party with respect to such Competitive Infringement, within a commercially reasonably time, BIND will have the right (but not the obligation) to take action to enforce the Product Candidate Claims against such Third Party for such Competitive Infringement. The controlling Party will pay all its Patent Costs incurred for such enforcement. Neither Party will exercise any of its enforcement rights under this Section 12.2(a) without first consulting with the other Party, provided that this consultation requirement will not limit each Party’s rights under this Section 12.2(a). Amgen Contract No.: 2013579490 28 EXECUTION COPY
Competitive Infringement. 5.2.1 [***]
Competitive Infringement. As between the Parties, AstraZeneca will have the first right, but not the obligation, to seek to xxxxx any actual or suspected Competitive Infringement of any Compound Claims by a Third Party, or to file suit against any such Third Party for such Competitive Infringement. If AstraZeneca does not take steps to xxxxx any such Competitive Infringement, or file suit to enforce the Compound Claims against such Third Party with respect to such Competitive Infringement, within a commercially reasonably time, BIND will have the right (but not the obligation) to take action to enforce the Compound Claims against such Third Party for such Competitive Infringement. The controlling Party will pay all its Patent Costs incurred for such enforcement. Neither Party will exercise any of its enforcement rights under this Section 11.2(a) without first consulting with the other Party, provided that this consultation requirement will not limit each Party’s rights under this Section 11.2(a).
Competitive Infringement. Licensee shall have the first right to initiate a suit or take other appropriate action that it believes necessary to end any Competitive Infringement, at Licensee’s sole control and expense. If Licensee fails to initiate a suit or take other appropriate action that it has the initial right to initiate or take to end such Competitive Infringement within sixty (60) days (or such shorter period specified below in this Section 5.2(b)) after becoming aware of the basis for such suit or action, then Licensor may, in its discretion, initiate a suit or take other appropriate action that it believes necessary to end such Competitive Infringement. The sixty (60) day period in the immediately preceding sentence shall be shortened as reasonably necessary to enable Licensor to initiate a suit or take other appropriate action if, in the absence of such shortening, a loss of rights with respect to such suit or other action would occur (e.g., if a generic pharmaceutical maker files an abbreviated new drug application or analogous application for which the reference listed drug is a Licensed Product and, in order to obtain an automatic stay from the applicable Regulatory Authority with respect to the approval of such application, a patent infringement suit must be brought within a shorter period of time). The Party filing any such suit or taking any such action shall be responsible for all costs in connection therewith and, therefore, shall control all decision-making related to any such suit or action.
Competitive Infringement. As between the Parties, Pfizer will have the sole right, but not the obligation, to seek to xxxxx any actual or suspected Competitive Infringement of any Agreement Compound Claim by a Third Party, or to file suit against any such Third Party for such Competitive Infringement. Pfizer will pay all of its Patent Costs incurred for such enforcement.
Competitive Infringement. With respect to any actual or suspected infringement of BH Patent Rights by a Third Party making, using or selling in the Field in the Territory a product that is or may be, in RSVC’s reasonable judgment, competitive with a Licensed Product (“Competitive Infringement”), RSVC shall have the initial right to initiate a legal action against such Third Party with respect to such Competitive Infringement, at RSVC’s expense. BH shall join in such action as a party at RSVC’s request and expense in the event that an adverse party asserts, the court rules or other Laws provide, or RSVC determines in good faith, that a court would lack jurisdiction based on BH’s absence as a party in such suit. BH may also at any time join in such action and may be represented by counsel of its choice, at BH’s expense; but in any event control of such action shall remain with RSVC. At RSVC’s reasonable request and expense, BH shall provide reasonable assistance to RSVC in connection with such action. Without the prior written consent of BH, RSVC shall not enter into any settlement admitting the invalidity of, or otherwise impairing BH’s rights in, BH Patent Rights. Any recoveries resulting from such an action shall be applied as follows:
(i) First, to reimburse each Party for all out-of-pocket costs in connection with such proceeding (on a pro rata basis, based on each Party’s respective litigation costs, to the extent the recovery was less than all such litigation costs); and
(ii) Second, the remainder of the recovery shall be treated as Net Sales and shall be subject to the royalty payments to BH as set forth in Section 5.5.
