Common use of Enforcement and Defense Clause in Contracts

Enforcement and Defense. (i) Each party shall have the exclusive right, but not the obligation, to enforce at its sole expense the Assigned Patents in its respective Exclusive Area, and the other party shall TECHNOLOGY DONATION AGREEMENT have no right to enforce any of the Assigned Patents in the other party’s Exclusive Area. Each party shall retain all recoveries resulting from its enforcement activities. (ii) In the event that a third party challenges the validity or enforceability of any Assigned Patent(s) (other than by way of interference, opposition, reissue proceeding or reexamination, which is addressed in Article 6.1(a), or as a counterclaim or otherwise in connection with a proceeding related to the enforcement by BMS within the scope of the Grant-back Licenses, which shall be addressed by reversal of the roles of University and BMS in the remainder of this Article 6.1(b)(ii)), then University shall have the first right, but not the obligation, to take such action, under its control and at its sole expense, as University deems reasonably necessary to defend the validity or enforceability of such Assigned Patent(s). If University elects not to take such action, University shall provide at least fifteen (15) days notice to BMS prior to any material litigation deadline, and BMS may then, at BMS’s option, assume control and defense of such action at BMS’s sole expense. (iii) With respect to the foregoing activities under this Article 6.1(b): (1) Neither party shall settle any action or admit as to invalidity or unenforceability or otherwise disclaim a patent right that could materially impair the other party’s rights in the Assigned Patents without the other party’s prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, either party granting rights to a third party within the scope of such party’s rights under this Agreement (such as a Licensee Entity granting a sublicense within the scope of the license under the applicable Assigned Patents granted to it by University in conformance with this Agreement, or BMS granting a sublicense under the Grant-back License in conformance with this Agreement) shall not be deemed to impair in a material fashion such other party’s rights in the Assigned Patents hereunder and thus shall not require such other party’s consent. (2) Each party shall cooperate with the other party in any such activities by the other party, including University agreeing, at the request of BMS, to be a named party or being joined involuntarily as a party in any BMS-controlled litigation, subject to indemnification of University by BMS from and against any award, fees or expenses (including reasonable fees and expenses of counsel) of University by reason of University being named in any such litigation, provided that BMS shall not be a named party in any University-controlled litigation, unless otherwise required by applicable patent law to enforce University- or Licensee Entity-rights in the Assigned Patent(s) or any licenses or sublicenses granted thereunder, in which case BMS shall, subject to indemnification of BMS by University or such Licensee Entity from and against any award or fees or expenses (including reasonable fees and expenses of counsel) of BMS by reason of BMS being named in any such litigation, join as a named party to such litigation. University, and any Licensee Entity having rights in the affected Assigned Patent(s), shall have the right (but not the obligation) to participate voluntarily in the absence of any request by BMS, at its own cost, in any BMS-controlled litigation activities concerning the Assigned Patents.

Enforcement and Defense. (a) AVEO shall give MERCK notice of either (i) any suspected infringement of AVEO Patent Rights, or (ii) any misappropriation or misuse of AVEO Information and Inventions, that may come to AVEO’s attention. Each party Party shall give the other Party notice of either (i) any suspected infringement of Joint Patent Rights, or (ii) any misappropriation or misuse of Joint Information and Inventions, that may come to such Party’s attention. MERCK and AVEO shall thereafter consult and cooperate fully to determine a course of action, including but not limited to the commencement of legal action by either or both MERCK and AVEO, to terminate the applicable infringement or misappropriation under AVEO Patent Rights, AVEO Information and Inventions, Joint Patent Rights or Joint Information and Inventions. The Parties agree to the following allocation of responsibility with respect to rights to initiate and prosecute such legal actions: (i) With respect to the Joint Patent Rights or Joint Information and Inventions, MERCK, upon notice to AVEO, shall have the exclusive first right to initiate and prosecute such legal action at its own expense and in the name of AVEO and MERCK; provided, however, that (1) AVEO shall have a right, but not the obligation, to enforce at its sole expense option, to fund up to [**] percent ([**]%) of the Assigned Patents costs and expenses incurred by MERCK in its respective Exclusive Areasuch legal action, and (2) the other party Parties shall TECHNOLOGY DONATION AGREEMENT mutually agree on the defense of any declaratory judgment action relating to AVEO Patent Rights, AVEO Information and Inventions, Joint Patent Rights or Joint Information and Inventions. MERCK shall promptly inform AVEO if it elects not to exercise such first right and AVEO shall thereafter, upon consultation with MERCK, have no the right to enforce any either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of AVEO and, if necessary, MERCK, at its own expense; provided, however, (1) MERCK shall have a right, at its sole option, to fund up to [**] percent ([**]%) of the Assigned Patents costs and expenses incurred by AVEO in such legal action, and (2) that the other party’s Exclusive AreaParties shall mutually agree on the defense of any declaratory judgment action relating to AVEO Patent Rights, AVEO Information and Inventions, Joint Patent Rights or Joint Information and Inventions. Each party Party shall retain all recoveries resulting from have the right to be represented by counsel of its enforcement activitiesown choice, at its own expense. (ii) In the event that a third party challenges the validity or enforceability of any Assigned Patent(s) (other than by way of interference, opposition, reissue proceeding or reexamination, which is addressed in Article 6.1(a), or as a counterclaim or otherwise in connection with a proceeding related With respect to the enforcement by BMS within the scope of the Grant-back LicensesAVEO Patent Rights or AVEO Information and Inventions, which shall be addressed by reversal of the roles of University and BMS in the remainder of this Article 6.1(b)(ii))AVEO, then University upon notice to MERCK, shall have the first rightright to initiate and prosecute such legal action at its own expense and in the name of AVEO and MERCK, but not subject to and in accordance with terms and conditions that are reciprocal to those set forth in subsection (A) above with respect to the obligationJoint Patent Rights and Joint Information and Inventions. (b) Any recovery obtained by either or both MERCK and AVEO in connection with or as a result of any action under the AVEO Patent Rights or Joint Patent Rights contemplated by this Section 7.3, whether by settlement or otherwise, shall be shared in order as follows: (i) the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (ii) the other Party shall then, to take such the extent possible, recover its costs and expenses incurred in connection with the action, under its control and at its sole expense, as University deems reasonably necessary to defend the validity or enforceability of such Assigned Patent(s). If University elects not to take such action, University shall provide at least fifteen (15) days notice to BMS prior to any material litigation deadline, and BMS may then, at BMS’s option, assume control and defense of such action at BMS’s sole expense.; and (iii) With the amount of any recovery remaining shall then be allocated between the Parties on a pro rata basis in proportion to the amount of costs and expenses incurred by each such Party in connection with the initiation and/or prosecution of such action. (c) AVEO shall inform MERCK of any certification regarding any AVEO Patent Rights it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions, or any similar provisions in a country in the Territory other than the United States, and shall provide MERCK with a copy of such certification within five (5) days of receipt. AVEO’s and MERCK’s rights with respect to the foregoing activities under this Article 6.1(b): (1initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs 7.4(a)-(d) Neither party hereof; provided, however, that AVEO shall settle exercise its first right to initiate and prosecute any action or admit as to invalidity or unenforceability or otherwise disclaim a patent right that could materially impair the other party’s rights in the Assigned Patents without the other party’s prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, either party granting rights to a third party within the scope and shall inform MERCK of such party’s rights under this Agreement decision within ten (such as a Licensee Entity granting a sublicense within the scope 10) days of receipt of the license under the applicable Assigned Patents granted to it by University in conformance with this Agreementcertification, or BMS granting a sublicense under the Grant-back License in conformance with this Agreement) shall not be deemed to impair in a material fashion such other party’s rights in the Assigned Patents hereunder and thus shall not require such other party’s consent. (2) Each party shall cooperate with the other party in any such activities by the other party, including University agreeing, at the request of BMS, to be a named party or being joined involuntarily as a party in any BMS-controlled litigation, subject to indemnification of University by BMS from and against any award, fees or expenses (including reasonable fees and expenses of counsel) of University by reason of University being named in any such litigation, provided that BMS shall not be a named party in any University-controlled litigation, unless otherwise required by applicable patent law to enforce University- or Licensee Entity-rights in the Assigned Patent(s) or any licenses or sublicenses granted thereunder, in after which case BMS shall, subject to indemnification of BMS by University or such Licensee Entity from and against any award or fees or expenses (including reasonable fees and expenses of counsel) of BMS by reason of BMS being named in any such litigation, join as a named party to such litigation. University, and any Licensee Entity having rights in the affected Assigned Patent(s), time MERCK shall have the right (but not to initiate and prosecute such action. Regardless of which Party has the obligation) right to initiate and prosecute such action, both Parties shall, as soon as practicable after receiving notice of such certification, convene and consult with each other regarding the appropriate course of conduct for such action. The non-initiating Party shall have the right to be kept fully informed and participate voluntarily in decisions regarding the absence appropriate course of any request by BMSconduct for such action, at its own cost, and the right to join and participate in any BMS-controlled litigation activities concerning the Assigned Patentssuch action.

Enforcement and Defense. 10.3.1. Each Party shall give the other Party written notice of any actual or threatened infringement of any FivePrime Background Patents or Collaboration Patents by an unlicensed Third Party through the making, having made, using, selling, offering for sale or importing of any product that is within the scope of a Commercial License held by UCB (i) Each party a “Product Infringement”), within *** days after such Party has knowledge of such Product Infringement. UCB and FivePrime shall thereafter consult and cooperate to determine a course of action, including the commencement of legal action by either or both UCB and FivePrime, to terminate any such Product Infringement. However, UCB, upon notice to FivePrime, shall have the exclusive right, but not the obligation, first right to enforce initiate and prosecute such legal action at its sole expense the Assigned Patents in its respective Exclusive Area, and the other party shall TECHNOLOGY DONATION AGREEMENT have no right to enforce any of the Assigned Patents in the other partyname of FivePrime or UCB, or to control the defense of any declaratory judgment action relating to such Product Infringement, provided that UCB shall not enter into any settlement or compromise that would materially diminish or adversely affect the scope, exclusivity or duration of any FivePrime Background Patents, Collaboration Patents or FivePrime’s Exclusive Area. Each party shall retain all recoveries resulting from its enforcement activitiesrights under this Agreement, without FivePrime’s prior written consent. (ii) 10.3.2. In the event that UCB elects not to initiate and prosecute an action pertaining to a third party challenges Product Infringement, and FivePrime elects to do so, FivePrime shall bear the validity or enforceability costs of any Assigned Patent(s) (other than agreed-upon course of action to terminate such Product Infringement, including the costs of any legal action commenced or the defense of any declaratory judgment, except that FivePrime shall not be responsible for any costs incurred by way of interference, opposition, reissue proceeding or reexamination, which is addressed in Article 6.1(a), or as a counterclaim or otherwise in connection with a proceeding related to the enforcement by BMS within the scope of the Grant-back Licenses, which shall be addressed by reversal of the roles of University and BMS in the remainder of this Article 6.1(b)(ii)), then University UCB unless such costs were incurred at FivePrime’s written request. FivePrime shall have the first right, but not the obligation, right to take join UCB as a party to such action if UCB is a necessary party to such action, under its control and at its sole expense, as University deems reasonably necessary to defend the validity or enforceability of such Assigned Patent(s). If University elects not to take such action, University shall provide at least fifteen (15) days notice to BMS prior to any material litigation deadline, and BMS may then, at BMS’s option, assume control and defense of such action at BMS’s sole expense. (iii) With respect to the foregoing activities 10.3.3. In connection with any action under this Article 6.1(b): (1) Neither party Section 10.3, UCB and FivePrime will reasonably cooperate and will provide each other with any information or assistance that either may reasonably request. Each Party shall settle any action or admit as to invalidity or unenforceability or otherwise disclaim a patent right that could materially impair keep the other party’s rights in the Assigned Patents without the other party’s prior written consent (not to be unreasonably withheld or delayed). For the avoidance informed of doubt, either party granting rights to a third party within the scope of such party’s rights under this Agreement (such as a Licensee Entity granting a sublicense within the scope of the license under the applicable Assigned Patents granted to it by University in conformance with this Agreement, or BMS granting a sublicense under the Grant-back License in conformance with this Agreement) shall not be deemed to impair in a material fashion such other party’s rights in the Assigned Patents hereunder and thus shall not require such other party’s consent. (2) Each party shall cooperate with the other party developments in any such activities action or proceeding, including, to the extent permissible by applicable Law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. Each Party shall have the right to be represented by counsel of its own choice at its own expense for any action set forth in this Section 10.3. 10.3.4. If a Party desires to bring an enforcement action under a Collaboration Patent, but is unable to do so solely in its own name, the other party, including University agreeingParty will, at the request of BMSthe enforcing Party, to be a named party or being joined involuntarily join such action as a party and will reasonably cooperate and cause its Affiliates to reasonably cooperate to execute all documents necessary for the enforcing Party to initiate litigation to prosecute and maintain such action. 10.3.5. Any recovery obtained by either or both UCB and FivePrime in connection with or as a result of any BMS-controlled litigationaction contemplated by this Section 10.3, whether by settlement or otherwise, shall be shared in order as follows: (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The Party initiating such action shall retain any remainder, and in the event UCB is such Party, such remainder shall be deemed Net Sales and subject to indemnification of University by BMS from and against any award, fees or expenses (including reasonable fees and expenses of counsel) of University by reason of University being named in any such litigation, provided that BMS shall not be a named party in any University-controlled litigation, unless otherwise required by applicable patent law the royalty payments to enforce University- or Licensee Entity-rights in the Assigned Patent(s) or any licenses or sublicenses granted thereunder, in which case BMS shall, subject to indemnification of BMS by University or such Licensee Entity from and against any award or fees or expenses (including reasonable fees and expenses of counsel) of BMS by reason of BMS being named in any such litigation, join as a named party to such litigation. University, and any Licensee Entity having rights in the affected Assigned Patent(s), shall have the right (but not the obligation) to participate voluntarily in the absence of any request by BMS, at its own cost, in any BMS-controlled litigation activities concerning the Assigned PatentsFivePrime under Section 8.4.

Enforcement and Defense. (i) 10.3.1. Each party Party shall have the exclusive right, but not the obligation, to enforce at its sole expense the Assigned Patents in its respective Exclusive Area, and give the other party shall TECHNOLOGY DONATION AGREEMENT have no right to enforce any of the Assigned Patents in the other party’s Exclusive Area. Each party shall retain all recoveries resulting from its enforcement activities. (ii) In the event that a third party challenges the validity or enforceability Party written notice of any Assigned Patent(s) (other than actual or threatened infringement of any FivePrime Patents or Collaboration Patents by way an unlicensed Third Party through the making, having made, using, selling, offering for sale or importing of interference, opposition, reissue proceeding or reexamination, which any product that is addressed in Article 6.1(a), or as a counterclaim or otherwise in connection with a proceeding related to the enforcement by BMS within the scope of the Grant-back Licenses, which shall a commercial License held by BMS (or would be addressed by reversal of the roles of University and BMS in the remainder of this Article 6.1(b)(ii)), then University shall have the first right, but not the obligation, to take such action, under its control and at its sole expense, as University deems reasonably necessary to defend the validity or enforceability of such Assigned Patent(s). If University elects not to take such action, University shall provide at least fifteen (15) days notice to BMS prior to any material litigation deadline, and BMS may then, at BMS’s option, assume control and defense of such action at BMS’s sole expense. (iii) With respect to the foregoing activities under this Article 6.1(b): (1) Neither party shall settle any action or admit as to invalidity or unenforceability or otherwise disclaim a patent right that could materially impair the other party’s rights in the Assigned Patents without the other party’s prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, either party granting rights to a third party within the scope of such party’s rights under this Agreement license if such product were a Licensed Product hereunder) (a “Product Infringement”), within *** days after such as Party has knowledge of such Product Infringement. BMS and FivePrime shall thereafter consult and cooperate to determine a Licensee Entity granting a sublicense within course of action, including the scope commencement of legal action by either or both BMS and FivePrime, to terminate any such Product Infringement. However, BMS, upon notice to FivePrime, shall have the license under first right to initiate and prosecute such legal action at its expense and in the applicable Assigned Patents granted to it by University in conformance with this Agreementname of FivePrime or BMS, or BMS granting a sublicense under to control the Grant-back License in conformance with this Agreement) shall not be deemed defense of any declaratory judgment action relating to impair in a material fashion such other party’s rights in the Assigned Patents hereunder and thus shall not require such other party’s consent. (2) Each party shall cooperate with the other party in any such activities by the other party, including University agreeing, at the request of BMS, to be a named party or being joined involuntarily as a party in any BMS-controlled litigation, subject to indemnification of University by BMS from and against any award, fees or expenses (including reasonable fees and expenses of counsel) of University by reason of University being named in any such litigationProduct Infringement, provided that BMS shall not be enter into any settlement or compromise that would materially diminish or adversely affect the scope, exclusivity or duration of any FivePrime Patents, Collaboration Patents or FivePrime’s rights under this Agreement, without FivePrime’s prior written consent. 10.3.2. In the event that BMS elects not to initiate and prosecute an action pertaining to a named party in any University-controlled litigation, unless otherwise required by applicable patent law to enforce University- or Licensee Entity-rights in the Assigned Patent(s) or any licenses or sublicenses granted thereunder, in which case BMS shall, subject to indemnification of BMS by University or such Licensee Entity from and against any award or fees or expenses (including reasonable fees and expenses of counsel) of BMS by reason of BMS being named in any such litigation, join as a named party to such litigation. UniversityProduct Infringement, and FivePrime elects to do so, FivePrime shall bear the costs of any Licensee Entity having rights in agreed-upon course of action to terminate such Product Infringement, including the affected Assigned Patent(s)costs of any legal action commenced or the defense of any declaratory judgment, except that FivePrime shall not be responsible for any costs incurred by BMS unless such costs were incurred at FivePrime’s written request. FivePrime shall have the right (but not to join BMS as a party to such action if BMS is a necessary party to such action. 10.3.3. In connection with any action under this Section 10.3, BMS and FivePrime will reasonably cooperate and will provide each other with any information or assistance that either may reasonably request. Each Party shall keep the obligation) other informed of developments in any such action or proceeding, including, to participate voluntarily in the absence extent permissible by applicable Law, consultation on and approval of any request settlement, the status of any settlement negotiations and the terms of any offer related thereto. Each Party shall have the right to be represented by BMS, counsel of its own choice at its own costexpense for any action set forth in this Section 10.3. 10.3.4. If a Party desires to bring an enforcement action under a Collaboration Patent, but is unable to do so solely in its own name, the other Party will, at the request of the enforcing Party, join such action as a party and will reasonably cooperate and cause its Affiliates to reasonably cooperate to execute all documents necessary for the enforcing Party to initiate litigation to prosecute and maintain such action. 10.3.5. Any recovery obtained by either or both BMS and FivePrime in connection with or as a result of any BMS-controlled litigation activities concerning action contemplated by this Section 10.3, whether by settlement or otherwise, shall be shared in order as follows: (a) The Party that initiated and prosecuted the Assigned Patentsaction shall recoup all of its costs and expenses incurred in connection with the action; (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The Party initiating such action shall retain any remainder, and in the event BMS is such Party, such remainder shall be deemed Net Sales and subject to the royalty payments to FivePrime under Section 8.4.

Enforcement and Defense. (i) Each party CRISPR shall have the first and exclusive right, but not the obligation, to enforce at its sole expense take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the Assigned Patents Territory of any Licensed Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or action (each an “Infringement Action”) in its respective Exclusive Areathe Territory, or (b) granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Territory non-infringing. Notwithstanding the foregoing, if CRISPR does not inform CureVac that it intends to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [*****] after CRISPR’s receipt of a notice of infringement, then CureVac will have the second right, but not the obligation, to initiate such Infringement Action with respect to such Licensed Patent Rights. For any infringement other than a Competitive Infringement, and the other party shall TECHNOLOGY DONATION AGREEMENT have no right to enforce any of the Assigned Patents in the other party’s Exclusive Area. Each party shall retain all recoveries resulting from its enforcement activities. (ii) In the event that a third party challenges the validity or enforceability of any Assigned Patent(s) (other than by way of interferenceexcept as set forth below, opposition, reissue proceeding or reexamination, which is addressed in Article 6.1(a), or as a counterclaim or otherwise in connection with a proceeding related to the enforcement by BMS within the scope of the Grant-back Licenses, which shall be addressed by reversal of the roles of University and BMS in the remainder of this Article 6.1(b)(ii)), then University shall each Party will have the first right, but not the obligation to enforce and defend the Licensed Patent Rights owned solely by such Party, and CRISPR will have the first right, but not the obligation to enforce and defend the Jointly Owned Foreground Patent Rights, with the exception only of Jointly-Owned Foreground Patent Rights which solely Cover the Manufacture of the Licensed Products, for which CureVac will have the first right, but not the obligation to enforce and defend. If within [*****] after having been notified of any alleged Third Party infringement of any Licensed Patent Right or any declaratory action contemplated by Section 8.4(d), in each case, in the Field, the Party enforcing or defending the Patent Right is unsuccessful in persuading the alleged infringer to desist, or the respective competent Party shall not have brought an infringement action within such [*****] period, or if the respective competent Party has not responded to such declaratory action, then, in any such event the other Party shall have the right, but not the obligation, to take such action, under its control prosecute and at its sole expense, as University deems reasonably necessary to defend the validity or enforceability of respective Licensed Patent Rights in connection with any such Assigned Patent(s)matter. If University elects not The Party taking action to take such action, University shall provide at least fifteen (15) days notice to BMS prior to any material litigation deadline, enforce and BMS may then, at BMS’s option, assume control and defense of such action at BMS’s sole expense. (iii) With respect to the foregoing activities defend under this Article 6.1(b): (1) Neither party shall settle any action or admit as to invalidity or unenforceability or otherwise disclaim a patent right that could materially impair the other party’s rights in the Assigned Patents without the other party’s prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, either party granting rights to a third party within the scope of such party’s rights under this Agreement (such as a Licensee Entity granting a sublicense within the scope of the license under the applicable Assigned Patents granted to it by University in conformance with this Agreement, or BMS granting a sublicense under the Grant-back License in conformance with this AgreementSection 8.4(c) shall not be deemed bear all of its costs related to impair in a material fashion such other party’s rights in the Assigned Patents hereunder enforcement and thus shall not require such other party’s consent. (2) Each party shall cooperate with the other party in defense, including any such activities costs incurred by the other party, including University agreeing, Party providing support to such enforcement and defense at the request of BMS, to be a named party or being joined involuntarily as a party in any BMS-controlled litigation, subject to indemnification of University by BMS from the enforcing and against any award, fees or expenses (including reasonable fees and expenses of counsel) of University by reason of University being named in any such litigation, provided that BMS shall not be a named party in any University-controlled litigation, unless otherwise required by applicable patent law to enforce University- or Licensee Entity-rights in the Assigned Patent(s) or any licenses or sublicenses granted thereunder, in which case BMS shall, subject to indemnification of BMS by University or such Licensee Entity from and against any award or fees or expenses (including reasonable fees and expenses of counsel) of BMS by reason of BMS being named in any such litigation, join as a named party to such litigation. University, and any Licensee Entity having rights in the affected Assigned Patent(s), shall have the right (but not the obligation) to participate voluntarily in the absence of any request by BMS, at its own cost, in any BMS-controlled litigation activities concerning the Assigned Patentsdefending Party.

Enforcement and Defense. (a) Each party will promptly notify the other of any infringement by a third party of any of the Alkermes Patent Rights, Recro Patent Rights or Intellectual Property in connection with this Agreement of which it becomes aware, including any “patent certification” filed in the United States under 21 U.S.C. §355(b)(2) or 21 U.S.C. §355(j)(2) or similar provisions in other jurisdictions and of any request for declaratory judgment, opposition, nullity action, interference, inter-partes reexamination, inter-partes review, post-grant review, derivation proceeding, or similar action alleging the invalidity, unenforceability or non-infringement of any of the Alkermes Patent Rights, Recro Patent Rights, Intellectual Property or Know-How in connection with this Agreement (collectively “Third Party Infringement”). Each party will provide the other with any available evidence of such Third Party Infringement. (b) NOVARTIS will have the right to bring and control any legal action in connection with any Third Party Infringement of Recro Patent Rights at its own expense as it reasonably determines appropriate, and the SUPPLIER shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. If NOVARTIS fails to bring or terminate any such action or proceeding with respect to such Third Party Infringement of Recro Patent Rights (i) Each party within one hundred twenty (120) days following the notice of alleged infringement or (ii) prior to ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, SUPPLIER shall have the exclusive right, but not the obligation, to enforce at its sole expense the Assigned Patents in its respective Exclusive Area, and the other party shall TECHNOLOGY DONATION AGREEMENT have no right to enforce any upon written approval of the Assigned Patents in the other party’s Exclusive Area. Each party shall retain all recoveries resulting from its enforcement activities. NOVARTIS (ii) In the event that a third party challenges the validity or enforceability of any Assigned Patent(s) (other than by way of interference, opposition, reissue proceeding or reexamination, which is addressed in Article 6.1(a), or as a counterclaim or otherwise in connection with a proceeding related to the enforcement by BMS within the scope of the Grant-back Licenses, which shall be addressed by reversal of the roles of University and BMS in the remainder of this Article 6.1(b)(ii)), then University shall have the first right, but not the obligation, to take such action, under its control and at its sole expense, as University deems reasonably necessary to defend the validity or enforceability of such Assigned Patent(s). If University elects not to take such action, University shall provide at least fifteen (15) days notice to BMS prior to any material litigation deadline, and BMS may then, at BMS’s option, assume control and defense of such action at BMS’s sole expense. (iii) With respect to the foregoing activities under this Article 6.1(b): (1) Neither party shall settle any action or admit as to invalidity or unenforceability or otherwise disclaim a patent right that could materially impair the other party’s rights in the Assigned Patents without the other party’s prior written consent (approval not to be unreasonably withheld or delayed). For the avoidance of doubt, either party granting rights to a third party within the scope of such party’s rights under this Agreement (such as a Licensee Entity granting a sublicense within the scope of the license under the applicable Assigned Patents granted to it by University in conformance with this Agreement, or BMS granting a sublicense under the Grant-back License in conformance with this Agreement) shall not be deemed to impair in a material fashion such other party’s rights in the Assigned Patents hereunder bring and thus shall not require such other party’s consent. (2) Each party shall cooperate with the other party in control any such activities action at its own expense and by the other party, including University agreeing, at the request counsel of BMS, to be a named party or being joined involuntarily as a party in any BMS-controlled litigation, subject to indemnification of University by BMS from and against any award, fees or expenses (including reasonable fees and expenses of counsel) of University by reason of University being named in any such litigation, provided that BMS shall not be a named party in any University-controlled litigation, unless otherwise required by applicable patent law to enforce University- or Licensee Entity-rights in the Assigned Patent(s) or any licenses or sublicenses granted thereunder, in which case BMS shall, subject to indemnification of BMS by University or such Licensee Entity from and against any award or fees or expenses (including reasonable fees and expenses of counsel) of BMS by reason of BMS being named in any such litigation, join as a named party to such litigation. Universityits own choice, and any Licensee Entity having rights in the affected Assigned Patent(s), NOVARTIS shall have the right (but not the obligation) to participate voluntarily in the absence of any request by BMSright, at its own costexpense, to be represented in any BMS-controlled litigation activities concerning such action by counsel of its own choice; provided, however, that if NOVARTIS notifies SUPPLIER in writing prior to ten (10) days before such time limit for the Assigned Patentsfiling of any such action that NOVARTIS intends to file such action before the time limit, then NOVARTIS shall be obligated to file such action before the time limit, and SUPPLIER will not have the right to bring and control such action. (c) At the request of NOVARTIS, SUPPLIER shall provide reasonable assistance in connection therewith, including by executing reasonably appropriate documents, access to SUPPLIER’S premises and employees, cooperating reasonably in discovery and joining as a party to the action if required. (d) In connection with any such proceeding, NOVARTIS shall not enter into any settlement admitting the invalidity of, or otherwise impairing SUPPLIER’S rights in, the Recro Patent Rights and/or the Alkermes Patent Rights without the prior written consent of SUPPLIER, which will not be unreasonably withheld or delayed. (e) Any recoveries resulting from such an action relating to a Claim of Third Party Infringement of Recro Patent Rights shall be first applied against payment of each party’s costs and expenses in connection therewith. In the event that NOVARTIS brought such action, any remainder will be retained by (or if received by SUPPLIER, paid to) NOVARTIS. In the event that SUPPLIER brought such action, any remainder shall be divided equally between SUPPLIER and NOVARTIS.

Enforcement and Defense. (i) Each party shall have the exclusive right, but not the obligation, to enforce at its sole expense the Assigned Patents in its respective Exclusive Area, and the other party shall TECHNOLOGY DONATION AGREEMENT have no right to enforce any of the Assigned Patents in the other party’s Exclusive Area. Each party shall retain all recoveries resulting from its enforcement activities. (ii) In the event that a third party challenges the validity or enforceability of any Assigned Patent(s) (other than by way of interference, opposition, reissue proceeding or reexamination, which is addressed in Article 6.1(a), or as a counterclaim or otherwise in connection with a proceeding related to the enforcement by BMS within the scope of the Grant-back Licenses, which shall be addressed by reversal of the roles of University and BMS in the remainder of this Article 6.1(b)(ii1.1(ii)), then University shall have the first right, but not the obligation, to take such action, under its control and at its sole expense, as University deems reasonably necessary to defend the validity or enforceability of such Assigned Patent(s). If University elects not to take such action, University shall provide at least fifteen (15) days notice to BMS prior to any material litigation deadline, and BMS may then, at BMS’s option, assume control and defense of such action at BMS’s sole expense. (iii) With respect to the foregoing activities under this Article 6.1(b): (1) Neither party shall settle any action or admit as to invalidity or unenforceability or otherwise disclaim a patent right that could materially impair the other party’s rights in the Assigned Patents without the other party’s prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, either party granting rights to a third party within the scope of such party’s rights under this Agreement (such as a Licensee Entity granting a sublicense within the scope of the license under the applicable Assigned Patents granted to it by University in conformance with this Agreement, or BMS granting a sublicense under the Grant-back License in conformance with this Agreement) shall not be deemed to impair in a material fashion such other party’s rights in the Assigned Patents hereunder and thus shall not require such other party’s consent. (2) Each party shall cooperate with the other party in any such activities by the other party, including University agreeing, at the request of BMS, to be a named party or being joined involuntarily as a party in any BMS-controlled litigation, subject to TECHNOLOGY DONATION AGREEMENT indemnification of University by BMS from and against any award, fees or expenses (including reasonable fees and expenses of counsel) of University by reason of University being named in any such litigation, provided that BMS shall not be a named party in any University-controlled litigation, unless otherwise required by applicable patent law to enforce University- or Licensee Entity-rights in the Assigned Patent(s) or any licenses or sublicenses granted thereunder, in which case BMS shall, subject to indemnification of BMS by University or such Licensee Entity from and against any award or fees or expenses (including reasonable fees and expenses of counsel) of BMS by reason of BMS being named in any such litigation, join as a named party to such litigation. University, and any Licensee Entity having rights in the affected Assigned Patent(s), shall have the right (but not the obligation) to participate voluntarily in the absence of any request by BMS, at its own cost, in any BMS-controlled litigation activities concerning the Assigned Patents.

Enforcement and Defense. (i) Each party shall have the exclusive right, but not the obligation, to enforce at its sole expense the Assigned Patents in its respective Exclusive Area, and the other party shall TECHNOLOGY DONATION AGREEMENT have no right to enforce any of the Assigned Patents in the other party’s Exclusive Area. Each party shall retain all recoveries resulting from its enforcement activities. (ii) In the event that a third party challenges the validity or enforceability of any Assigned Patent(s) (other than by way of interference, opposition, reissue proceeding or reexamination, which is addressed in Article 6.1(a), or as a counterclaim or otherwise in connection with a proceeding related to the enforcement by BMS within the scope of the Grant-back Licenses, which shall be addressed by reversal of the roles of University and BMS in the remainder of this Article 6.1(b)(ii1.1(ii)), then University shall have the first right, but not the obligation, to take such action, under its control and at its sole expense, as University deems reasonably necessary to defend the validity or enforceability of such Assigned Patent(s). If University elects not to take such action, University shall provide at least fifteen (15) days notice to BMS prior to any material litigation deadline, and BMS may then, at BMS’s option, assume control and defense of such action at BMS’s sole expense. (iii) With respect to the foregoing activities under this Article 6.1(b): (1) Neither party shall settle any action or admit as to invalidity or unenforceability or otherwise disclaim a patent right that could materially impair the other party’s rights in the Assigned Patents without the other party’s prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, either party granting rights to a third party within the scope of such party’s rights under this Agreement (such as a Licensee Entity granting a sublicense within the scope of the license under the applicable Assigned Patents granted to it by University in conformance with this Agreement, or BMS granting a sublicense under the Grant-back License in conformance with this Agreement) shall not be deemed to impair in a material fashion such other party’s rights in the Assigned Patents hereunder and thus shall not require such other party’s consent. (2) Each party shall cooperate with the other party in any such activities by the other party, including University agreeing, at the request of BMS, to be a named party or being joined involuntarily as a party in any BMS-controlled litigation, subject to FOIA CONFIDENTIAL TREATMENT REQUESTED TECHNOLOGY DONATION AGREEMENT indemnification of University by BMS from and against any award, fees or expenses (including reasonable fees and expenses of counsel) of University by reason of University being named in any such litigation, provided that BMS shall not be a named party in any University-controlled litigation, unless otherwise required by applicable patent law to enforce University- or Licensee Entity-rights in the Assigned Patent(s) or any licenses or sublicenses granted thereunder, in which case BMS shall, subject to indemnification of BMS by University or such Licensee Entity from and against any award or fees or expenses (including reasonable fees and expenses of counsel) of BMS by reason of BMS being named in any such litigation, join as a named party to such litigation. University, and any Licensee Entity having rights in the affected Assigned Patent(s), shall have the right (but not the obligation) to participate voluntarily in the absence of any request by BMS, at its own cost, in any BMS-controlled litigation activities concerning the Assigned Patents.