Common use of Defense of Third Party Action Clause in Contracts

Defense of Third Party Action. If a Third Party institutes any action to have any patent within the Patent Rights within the Enabling Technology held invalid, non-infringed and/or unenforceable, the Parties agree to discuss, in good faith with each other (and with the owner of the applicable Patent Rights if these are not owned by Maxygen and/or its Affiliates, and any Third Parties to whom Maxygen and/or its Affiliates has granted rights regarding enforcement and/or defense of such Patent Rights prior to the Closing Date), which Party (and/or Third Party) should control the defense of such action. All of the out-of-pocket costs and legal fees relative to such defense shall be shared as agreed by the Parties (and applicable Third Parties). If there is any recovery of out-of-pocket costs and legal fees, the recovery shall, unless otherwise agreed, be used to reimburse the Parties (and applicable Third Parties) according to the proportion of out-of-pocket costs and legal fees each Party (and/or applicable Third Party) paid, and the remaining recovery will be split according to the proportion of out-of-pocket costs and legal fees each Party (and/or applicable Third Party) paid. If the Parties cannot agree on which Party will prosecute a suit and/or the sharing of the costs, then as between the Parties, (i) Maxygen and its Affiliates shall have the right to determine whether and, if so, how to prosecute and/or defend such suit and will be entitled to name Bayer as a party in such suit if Bayer is a necessary and/or indispensable party, and (ii) Maxygen shall be responsible for all of the out-of-pocket costs and legal fees relative to such suit Maxygen and/or any of its Affiliates files, and any recoveries from such suit shall belong exclusively to Maxygen and its Affiliates.

Defense of Third Party Action. If a Third Party institutes any action to have any patent within the Patent Rights Patents within the Licensed Technology other than Enabling Technology held invalid, non-infringed and/or or unenforceable, the Parties agree to discuss, in good faith with each other (and with the owner of the applicable Patent Rights Patents if these are not owned by Maxygen and/or or its Affiliates, and any Third Parties to whom Maxygen and/or or its Affiliates has granted rights regarding enforcement and/or or defense of such Patent Rights Patents prior to the Closing Effective Date), which Party (and/or or Third Party) should control the defense of such action. All of the out-of-pocket costs and legal fees relative to such defense shall be shared as if and to the extent agreed by the Parties (and applicable Third Parties). If there is any recovery of out-of-pocket costs and legal fees, the recovery shall, unless otherwise agreed, be used to reimburse the Parties (and applicable Third Parties) according to the proportion of out-of-pocket costs and legal fees each Party (and/or or applicable Third Party) paid, and the remaining recovery will be split according to the proportion of out-of-pocket costs and legal fees each Party (and/or or applicable Third Party) paid. If the Parties cannot agree on which Party will prosecute a suit and/or or the sharing of the costs, then as between the Parties, (i) Maxygen and its Affiliates shall have the right to determine whether and, if so, how to prosecute and/or or defend such suit and will be entitled to name Bayer CPC as a party in such suit if Bayer CPC is a necessary and/or or indispensable party, and (ii) Maxygen shall be responsible for all of the out-of-pocket costs and legal fees of Maxygen and CPC relative to such suit Maxygen and/or any of its Affiliates filesprosecutes or defends, and any recoveries from such suit shall belong exclusively to Maxygen and its AffiliatesMaxygen.