Common use of Enforcement and Defense Clause in Contracts

Enforcement and Defense. (a) As soon as practicable, each of Licensor and Licensee shall give the other party notice of (i) any infringement of the Patent Rights, (ii) any claim of invalidity, unenforceability, or non-infringement of the Patent Rights or (iii) any misappropriation or misuse of the Know-How that may come to such party’s attention. Licensee and Licensor 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 Licensee and Licensor, to terminate any infringement, or claim of invalidity, unenforceability, or non-infringement, of the Patent Rights or any misappropriation or misuse of the Know-How. However, Licensor, upon notice to Licensee, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Licensor and Licensee, or to control the defense of any declaratory judgment action relating to the Patent Rights or the Know-How. Licensor shall promptly inform Licensee if it elects not to exercise such first right and Licensee shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Licensee and, if necessary, Licensor; provided that Licensee shall not admit the invalidity or fail to defend the validity of any the Patent Right without Licensor’s prior consent which shall not be unreasonably withheld. Each party shall have the right to be represented by counsel of its own choice. In connection with any action, Licensee and Licensor will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (b) In the event that Licensor elects not to initiate and prosecute an action as provided in Section 6.1(a), and Licensee elects to do so, the costs of any agreed-upon course of action, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Licensor and Licensee; provided, that in the event that Licensee is unable to initiate or prosecute such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Licensee to initiate litigation to prosecute and maintain such action. (c) Any recovery obtained by either or both Licensee and Licensor in connection with or as a result of any action contemplated by this Section 6.1, whether by settlement or otherwise, shall be shared in order as follows: (i) the party that 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 the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated on a 75%/25% basis, with the party that initiated and prosecuted the action receiving 75% of the recovery and the other party receiving 25% of the recovery.

Enforcement and Defense. (a) As soon as practicable, each of Licensor and A. Licensee shall give promptly inform ISURF in writing of any alleged infringement of any Licensed Patents, along with providing any available evidence of such infringement lawfully in the other party notice possession of (i) Licensee. B. If any infringement of the Patent RightsLicensed Patents is to the substantial detriment of Licensee and Licensee’s rights are exclusive hereunder without any limitations that prevent Licensee from having standing to enforce the Licensed Patents without joining ISURF, (ii) any claim and Licensee provides ISURF with a clear opinion of invalidity, unenforceability, or non-an outside patent counsel that the complained of activity is an infringement and that enforcement of the Patent Rights Licensed Patents will not constitute patent misuse or (iii) any misappropriation or misuse of the Know-How that may come to such party’s attention. abuse, then Licensee and Licensor 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 Licensee and Licensor, to terminate any infringement, or claim of invalidity, unenforceability, or non-infringement, of the Patent Rights or any misappropriation or misuse of the Know-How. However, Licensor, upon notice to Licensee, shall have the first right right, but not the obligation, for six months following ISURF’s receipt of the notice in Section 8(A) to initiate and prosecute seek to xxxxx such legal action infringement including to file a lawsuit to seek to stop such activity at its own expense and in the name of Licensor and Licensee, or to control the defense of any declaratory judgment action relating to the Patent Rights or the Know-How. Licensor shall promptly inform Licensee if it elects not to exercise such first right and Licensee shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Licensee and, if necessary, Licensor; provided that Licensee shall not admit the invalidity or fail to defend the validity of any the Patent Right without Licensor’s prior consent which ISURF shall not be unreasonably withheld. Each party shall have the right obligated to take action, but may join in such proceedings if it so chooses, and will otherwise provide Licensee with such assistance and information as may be represented by counsel of its own choice. In useful to Licensee in connection with Licensee taking such action if Licensee reimburses ISURF for ISURF’s reasonable and documented out-of-pocket costs and expenses. The remaining amounts received by Licensee, if any, or any actionfuture receipts from sublicensing settlement shall be subject to payment to ISURF in accordance with Section 4.B. Licensee shall act in good faith to preserve ISURF’s right, Licensee title and Licensor will cooperate fully interest in and will provide each other with any information or assistance that either may reasonably request. Each party to the Licensed Patents, shall keep the other informed of developments in any action or proceeding, including, ISURF advised as to the extent permissible by law, consultation on and approval of any settlement, the status of any the litigation and shall not enter into a settlement negotiations and of such litigation without first allowing ISURF the terms option of either approving the settlement or of continuing the litigation at ISURF’s expense for ISURF’s benefit (upon payment to Licensee of the lesser of any offer related theretoamount to be paid to Licensee under the proposed settlement or Licensee's reasonable and documented out-of-pocket costs and expenses of the litigation, after which any award or settlement shall be paid as follows: (1) first to pay any unreimbursed out-of-pocket costs and expenses of ISURF and remaining unreimbursed out-of-pocket costs and expenses of Licensee after receipt of the initial payment from ISURF to continue the litigation; (2) ISURF shall retain the remainder and may permit such infringer of the Licensed Patents to practice under the Licensed Patents if such practice is allowed under a settlement arrangement entered into by ISURF in good faith with a third party infringer. (b) In C. If Licensee does not exercise its right to xxxxx the event that Licensor elects infringement or fails to do so within one year of commencing such efforts, then ISURF may, but is not obligated to initiate xxxxx such infringement, including to enforce the Licensed Patents against infringers or otherwise act to eliminate infringement at ISURF’s cost and prosecute an action as provided for ISURF’s sole benefit. Upon request by ISURF, Licensee shall take action, join in Section 6.1(a)such proceeding, and Licensee elects otherwise provide ISURF with such assistance and information as may be useful to do so, the costs of any agreed-upon course of action, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Licensor and Licensee; provided, that in the event that Licensee is unable to initiate or prosecute such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Licensee to initiate litigation to prosecute and maintain such action. (c) Any recovery obtained by either or both Licensee and Licensor ISURF in connection with or as a result ISURF’s taking such action (if the cause of action arose during the term of this Agreement and ISURF reimburses Licensee for Licensee’s reasonable out-of- pocket expenses.) Nothing in the foregoing shall permit Licensee to settle any action contemplated by this Section 6.1that would admit any fault or create any obligation on behalf of ISURF, whether by settlement Iowa State University or otherwise, shall be shared in order as follows: (i) the party that 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 the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated on a 75%/25% basis, with the party that initiated and prosecuted the action receiving 75% inventors of the recovery and Licensed Patents including compromising the other party receiving 25% of the recoveryLicensed Patents without ISURF’s express written consent, which it may withhold.

Enforcement and Defense. (aA. ARRAYJET shall use reasonable commercial endeavors to protect the Licensed Patents against infringers or otherwise act to eliminate infringement, when, in ARRAYJET’s sole judgment, such action may be necessary, proper, and justified and makes reasonable business sense considering all factors. In the event that Licensee or its sublicensee(s) As soon as practicable, each of Licensor and Licensee shall give the other party notice of (i) any believe there is infringement of any Licensed Patent under this Agreement which is to its substantial detriment, Licensee will provide ARRAYJET with notification and reasonable evidence of such infringement. Upon request by ARRAYJET, Licensee will provide ARRAYJET with such assistance and information as may be useful to ARRAYJET in connection with ARRAYJET’s taking such action (if the Patent Rightscause of action arose during the term of this Agreement and ARRAYJET reimburses Licensee for Licensee’s reasonable out-of-pocket expenses). For clarity, (ii) any claim of invalidity, unenforceability, or non-infringement of the Patent Rights or (iii) any misappropriation or misuse of the Know-How that may come to such party’s attention. in no event will Licensee and Licensor 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 Licensee and Licensor, to terminate any infringement, or claim of invalidity, unenforceability, or non-infringement, of the Patent Rights or any misappropriation or misuse of the Know-How. However, Licensor, upon notice to Licensee, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Licensor and Licensee, or to control the defense of any declaratory judgment action relating to the Patent Rights or the Know-How. Licensor shall promptly inform Licensee if it elects not to exercise such first right and Licensee shall thereafter sublicensee have the right to either demand that ARRAYJET initiate and prosecute or join in any suit for infringement. ARRAYJET shall defend the Licensed Patents against challenges, including challenges to the validity or enforceability of the Licensed Patents, whether made in the context of litigation, a petition to a governmental patent office, or otherwise, when, in ARRAYJET’s sole judgment, such action may be necessary, proper, and justified and makes reasonable business sense considering all factors. B. If ARRAYJET fails to enforce or defend the Licensed Patents, then during the period in which, and in the jurisdiction where, Licensee has exclusive rights under this Agreement and is the sole Licensee under the Licensed Patents, Licensee may, where it believes that such action may be necessary, proper and justified and makes reasonable business sense considering all factors, institute suit for patent infringement or defend the Licensed Patents against the infringer or challenger after providing ARRAYJET (a) a written estimate of the expenses that would be reasonably incurred in connection with such action, including an estimate from two outside law firms regarding the legal costs associated with such suit and (b) financial records reasonably sufficient to control reasonably demonstrate that Licensee has the defense financial wherewithal to pay such expenses as they fall due through the conclusion of such declaratory suit by means of judgment action or other final non-appealable decision. ARRAYJET may voluntarily join such suit, or be compelled to join such suit if necessary to assert or maintain the suit, at Licensee’s reasonable expense, but may not thereafter commence suit against the infringer for the acts of infringement that are the subject of Licensee’s suit or any judgment rendered in such suit. ARRAYJET shall not unreasonably withhold, condition, or delay consent to being joined to such a suit. Licensee shall, with the consent of ARRAYJET (where such settlement, consent judgement or voluntary disposition is relevant to ARRAYJET’s business or rights under this Agreement), be free to enter into a settlement, consent judgment or other voluntary disposition, provided that, any settlement, consent judgment or other voluntary disposition (i) does not limit the scope, validity or enforcement of the Licensed Patents or (ii) does not admit fault or wrongdoing on the part of ARRAYJET, or where such an admission is made it must be approved in advance by ARRAYJET in writing. Licensee’s request for such approval shall include complete copies of final settlement documents, a detailed summary of such settlement, and any other information material to such settlement. ARRAYJET shall provide Licensee notice of its approval or denial within [***] of any request for such approval by Licensee, provided that (y) in the name event ARRAYJET wishes to deny such approval, such notice shall include a detailed written description of Licensee andARRAYJET’s reasonable objections to the proposed settlement, if necessaryconsent judgment, Licensor; provided that Licensee or other voluntary disposition and (z) ARRAYJET shall not admit be deemed to have approved of such proposed settlement, consent judgment, or other voluntary disposition in the invalidity event it fails to provide such notice within such [***] period in accordance herewith. C. Any recovery or fail to defend the validity of any the Patent Right without Licensor’s prior consent which shall not be unreasonably withheld. Each party shall have the right to be represented by counsel of its own choice. In settlement received in connection with any action, Licensee and Licensor suit will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible first be shared by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (b) In the event that Licensor elects not to initiate and prosecute an action as provided in Section 6.1(a), ARRAYJET and Licensee elects equally to do so, cover any costs each incurred and next shall be paid to ARRAYJET or Licensee to cover any costs it incurred in excess of the costs of the other (including any agreed-upon course costs incurred by Licensee on behalf of action, including the costs of any legal action commenced or the defense of any declaratory judgment, ARRAYJET). Any remaining recoveries shall be shared equally by Licensor and Licensee; provided, that in the event that Licensee is unable to initiate or prosecute such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Licensee to initiate litigation to prosecute and maintain such action. (c) Any recovery obtained by either or both Licensee and Licensor in connection with or as a result of any action contemplated by this Section 6.1, whether by settlement or otherwise, shall be shared in order allocated as follows: (i) for any suit that is initiated by either party and in which both parties participated at their own cost and expense, the parties shall split the remainder evenly (50/50); and (ii) for any suit that is initiated by Licensee and in which ARRAYJET was not a party that initiated and prosecuted the action shall recoup all of or in which ARRAYJET was a party with its costs and expenses incurred in connection with paid by Licensee, ARRAYJET shall receive [***] of the action; (ii) recovery and the other party Licensee shall then, to receive the extent possible, recover its costs and expenses incurred in connection with the actionremainder; and (iii) the amount of for any recovery remaining suit that is initiated by ARRAYJET and in which Licensee does not participate as a party, ARRAYJET shall then be allocated on a 75%/25% basis, with the party that initiated and prosecuted the action receiving 75% of the recovery and the other party receiving 25% of the recoveryreceive [***].

Enforcement and Defense. If Seller has the right pursuant to applicable Law to institute suit or other legal proceedings to enforce and/or defend any of the Specified AnaptysBio Patents in respect of any AB Infringement or to defend any of the Specified AnaptysBio Patents against any AB Invalidity Claim, then promptly (aand in any event within five Business Days) As soon as practicablefollowing a Responsible Employee of Seller becoming aware of such right of Seller, each of Licensor and Licensee Seller shall give the other party provide notice of such right to Purchaser. Seller may, and if requested in writing by Purchaser within (i) any infringement ten Business Days after receipt by Purchaser of notice of such right pursuant to the Patent Rights, first sentence of this Section 6.11(b) or (ii) any claim five Business Days before the time limit, if any, set forth in the applicable Law for the filing of invalidity, unenforceability, suit or non-infringement of the Patent Rights or (iii) any misappropriation or misuse of the Know-How that may come other legal proceeding with respect to such party’s attention. Licensee and Licensor shall thereafter consult and cooperate fully to determine a course enforcement or defense, whichever comes first, shall, proceed, in consultation with Purchaser, (A) in the case of action, including but not limited to the commencement of legal action by either or both Licensee and LicensorAB Infringement, to terminate any infringementinstitute such a suit or other legal proceeding and to use commercially reasonable efforts to enforce and/or defend the Specified AnaptysBio Patents, or claim of invalidity, unenforceability, or non-infringement, of the Patent Rights or any misappropriation or misuse of the Know-How. However, Licensor, upon notice to Licensee, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Licensor and Licensee, or to control the defense of any declaratory judgment action relating to the Patent Rights or the Know-How. Licensor shall promptly inform Licensee if it elects not to exercise such first right rights and Licensee remedies, relating to such AB Infringement as shall thereafter have the right be available to either initiate and prosecute such action Seller under applicable Law, or to control the defense of such declaratory judgment action (B) in the name case of Licensee andan AB Invalidity Claim, if necessary, Licensor; provided that Licensee shall not admit the invalidity or fail to use commercially reasonable efforts to defend the validity of any the Patent Right without Licensor’s prior consent which shall not be unreasonably withheld. Each party shall have the right to be represented by counsel of its own choiceSpecified AnaptysBio Patents against such AB Invalidity Claim. In connection with any actionsuch enforcement or defense of the Specified AnaptysBio Patents, Licensee Seller shall employ such counsel as Seller determines for such purpose (as long as such counsel is reasonably acceptable to Purchaser). (c) Allocation of Proceeds and Licensor will cooperate fully Costs of Enforcement and will provide each other with any information or assistance that either may reasonably requestDefense. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, consultation on and approval The Proceeds of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (b) In the event that Licensor elects not to initiate and prosecute an action as provided in Section 6.1(a), and Licensee elects to do so, the costs of any agreed-upon course of action, including the costs of any legal action commenced enforcement or the defense of any declaratory judgmentof the Specified AnaptysBio Patents by Seller pursuant to this Section 6.11, shall be shared equally after deduction (and reimbursement to Seller and Purchaser) of all advances required by) the applicable counsel selected pursuant to Section 6.11(b)) actually incurred by Licensor and Licensee; provided, that in the event that Licensee is unable to initiate Seller or prosecute such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Licensee to initiate litigation to prosecute and maintain such action. (c) Any recovery obtained by either or both Licensee and Licensor Purchaser in connection with such enforcement or as a result of any action contemplated by this Section 6.1, whether by settlement or otherwise, shall be shared in order as follows: defense (i) the party that 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 the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated on a 75%/25% basis, with the party that initiated and prosecuted the action receiving 75% of the recovery and the other party receiving 25% of the recovery.than costs

Enforcement and Defense. (a) As soon as practicable, each of 6.5.1 Licensor and Licensee shall give the other party Licensee notice of either (i) any infringement of the Licensor Patent Rights, or (ii) any claim of invalidity, unenforceability, or non-infringement of the Patent Rights or (iii) any misappropriation or misuse of the Licensor Know-How How, that may come to such partyLicensor’s attention. Licensee and Licensor 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 Licensee and Licensor, to terminate any infringement, or claim infringement of invalidity, unenforceability, or non-infringement, of the Licensor Patent Rights or any misappropriation or misuse of the Licensor Know-How. However, LicensorLicensee, upon notice to LicenseeLicensor, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Licensor and Licensee, or to control the defense of any declaratory judgment action relating to the Licensor Patent Rights or the Licensor Know-How. Licensor Licensee shall promptly inform Licensee Licensor if it elects not to exercise such first right and Licensee Licensor shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Licensee Licensor and, if necessary, Licensor; provided that Licensee shall not admit the invalidity or fail to defend the validity of any the Patent Right without Licensor’s prior consent which shall not be unreasonably withheldLicensee. Each party Party shall have the right to be represented by counsel of its own choice. In connection with any action, Licensee and Licensor will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, [62a] The obligation to the extent permissible by law, consultation on and approval notify of any settlement, infringement or misappropriation should be reciprocal. Licensee would be more likely to here of this type of activity given that Licensor would no longer be commercializing AIPLA A. [62b] The term “promptly” is open to subjective interpretation. Consider specifying a time limit. [62c] Some Licensees may wish to prevent the status of any settlement negotiations and the terms of any offer related theretoLicensor from enforcing its IP rights if Licensee elects not to do so. (b) 6.5.2 In the event that Licensor Licensee elects not to initiate and prosecute an action as provided in Section 6.1(a)6.5.1, and Licensee Licensor elects to do so, the costs of any agreed-agreed- upon course of actionaction to terminate infringement of Licensor Patent Rights or misappropriation or misuse of Licensor Know-How, including the costs without 6.5.3 For any action to terminate any infringement of Licensor Patent Rights or any legal action commenced misappropriation or the defense misuse of any declaratory judgmentLicensor Know-How, shall be shared equally by Licensor and Licensee; provided, that in the event that Licensee is unable to initiate or prosecute such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Licensee to initiate litigation to prosecute and maintain such action. In connection with any action, Licensee and Licensor will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each Party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (c) 6.5.4 Any recovery obtained by either or both Licensee and Licensor in connection with or as a result of any action contemplated by this Section 6.1Section, whether by settlement or otherwise, shall be shared in order as follows: (ia) the party that Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (iib) the other party Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iiic) the amount of any recovery remaining shall then be allocated between the Parties on a 75%/25% basispro rata 6.5.5 Licensor shall inform Licensee of any certification regarding any Licensor 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 Licensee with a copy of such certification within five (5) days of receipt. Licensor’s and Licensee’s rights with respect to the party initiation 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 Sections 6.5.1 through 6.5.4; provided, however, that initiated Licensee shall exercise its first right to initiate and prosecuted the prosecute any action receiving 75% and shall inform Licensor of such decision within ten (10) days of receipt of the recovery certification, after which time Licensor shall have the right to initiate and prosecute such action. Regardless of which Party has the 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 in decisions regarding the appropriate course of conduct for such action, and the other party receiving 25% right to join and participate in such action. [63] Provision is specific to drug products for which FDA market approval is required. A generic drug company can obtain 180 days of market exclusivity for its generic drug product if it is the first to file its ANDA and Paragraph IV certification, which certifies that the generic company’s drug product does not infringe the (orange book listed) patents of the recoverybranded drug company, and usually alleges that the branded drug company’s patents are unenforceable. The filing of the ANDA is an act of infringement, and unless the branded drug company files an infringement suit within 45 days, the FDA will approve the ANDA. If an infringement claim is asserted against a generic drug company, the FDA will suspend approval of the ANDA for the earlier of 30 months or until the court rules on the suit. Accordingly, ANDA litigation could heavily impact the value and market share of a branded drug. This provision obliges the parties to cooperate in the event that such litigation strategy becomes necessary due to an ANDA filing. This is to both parties’ benefit.

Enforcement and Defense. (aA) As soon as practicable, each of Licensor and Licensee Idera shall give the other party Merck prompt written notice of (i) any infringement of Idera Background Patent Right in any of the Patent RightsFields, (ii) any claim of invalidity, unenforceability, or non-infringement of the Idera Program Patent Rights Rights, or (iii) any misappropriation or misuse of the Idera Know-How that may come to such party’s attention. Licensee How. (B) In the case of infringement of Idera Program Patent Rights or misappropriation or misuse of Idera Know-How, Merck and Licensor Idera shall thereafter consult and cooperate fully to determine a course of action, including but not limited to to, the commencement of legal action by either Merck or Idera or both Licensee and LicensorParties, to terminate any infringement, or claim infringement of invalidity, unenforceability, or non-infringement, of the Idera Program Patent Rights or any misappropriation or misuse of the Idera Know-How. However, LicensorIdera, upon notice to LicenseeMerck, shall have the first right (i) to initiate and prosecute such legal action at its own expense and subject to Merck's written consent, initiate and prosecute such legal action in the name of Licensor Idera and Licensee, or Merck and (ii) to control the defense of any declaratory judgment action relating to the Idera Program Patent Rights or the Idera Know-How. Licensor In either such case, Idera shall promptly inform Licensee Merck if it elects not to exercise such first right and Licensee Merck shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Licensee andMerck and subject to Idera's written consent, if necessaryin the name of Merck and Idera. For any case that Merck either initiates or prosecutes, Licensor; provided that Licensee Merck shall not admit reasonably consider the invalidity or fail to defend the validity rights and interests of any the Patent Right without Licensor’s prior consent which shall not be unreasonably withheldIdera. Each party Party shall have the right to be represented by counsel of its own choice. (C) In the case of infringement of Idera Background Patent Rights outside the Fields, Idera shall in its sole discretion, determine a course of action, including but not limited to, the commencement of legal action, to terminate any such infringement of Idera Background Patent Rights. Idera shall have the right to initiate and prosecute such legal action at its own expense and in the name of Idera, or to control the defense of any declaratory judgment action relating to Idera Background Patent Rights. For any case that Idera either initiates, prosecutes or participates in, Idera shall reasonably consider the rights and interests of Merck and regularly confer with Merck regarding the status of such litigation. To the extent that Idera's attorney-client privilege is not breached and to the extent permissible under Idera's express obligations under Idera's agreements with Third Parties, Idera shall also provide Merck with the opportunity to review and comment on filings and the conduct of such litigation. (D) In the case of infringement of Idera Background Patent Right in a Selected Collaboration Compound within any of the Fields, Merck and Idera shall consult and cooperate fully to determine a course of action, including but not limited to, the commencement of legal action by either Merck or Idera or both Parties, to terminate any such infringement of Idera Background Patent Rights. However, Idera, upon written notice to Merck, shall have the first right to initiate and prosecute such legal action at its own expense and subject to Merck's written consent, in the name of Idera and Merck, or to control the defense of any declaratory judgment action relating to Idera Program Patent Rights or Idera Know-How. In such case, Idera shall promptly inform Merck if it elects not to exercise such first right and Merck shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Merck and, subject to Idera's written consent, in the name of Merck and Idera. For any action that Merck either initiates or prosecutes, Merck shall reasonably consider the rights and interests of Idera. Each Party shall have the right to be represented by counsel of its own choice. (E) In the event that Idera elects not to initiate and prosecute an action as provided in Sections 7.4 (b) and (d) and Merck elects to do so, the costs of any agreed-upon course of action to terminate infringement of Idera Patent Rights or misappropriation or misuse of Idera Know-How, including without limitation, the costs of any legal action commenced or the defense of any declaratory judgment, shall be paid by Merck. (F) For any action to terminate any infringement of Idera Patent Rights or any misappropriation or misuse of Idera Know-How, in the event that Merck is unable to initiate or prosecute such action solely in its own name, Idera will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Merck to initiate litigation and to prosecute and maintain such action. In connection with any action, Licensee Merck and Licensor Idera will cooperate fully and will provide each other with any information or assistance that either Party may reasonably request. Each party Party shall keep the other informed of developments in any action or proceeding, including, without limitation and to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (b) In the event that Licensor elects not to initiate and prosecute an action as provided in Section 6.1(a), and Licensee elects to do so, the costs of any agreed-upon course of action, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Licensor and Licensee; provided, that in the event that Licensee is unable to initiate or prosecute such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Licensee to initiate litigation to prosecute and maintain such action. (cG) Any recovery obtained by either Merck or Idera or both Licensee and Licensor Parties in connection with or as a result of any action contemplated by this Section 6.1for (i) infringement of Idera Program Patent Rights, (ii) misappropriation or misuse of Idera Know-How or (iii) infringement of Idera Background Patent Rights in any of the Fields, whether by settlement or otherwise, shall be shared in the following order as followsof priority: (iI) the party that initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action[**]; (iiII) the other party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action[**]; and (iiiIII) the amount of any recovery remaining shall then be allocated on a 75%/25% basis, with the party that initiated and prosecuted the action receiving 75% of the recovery and the other party receiving 25% of the recovery[**].

Enforcement and Defense. (a) As soon as practicable, each of Licensor and Licensee shall Each party will promptly give the other party notice upon becoming aware of (i) any instance of infringement of any Licensed Patents in the Patent Rights, Exclusive Field of Use (ii) any claim “Notice of invalidity, unenforceability, or non-infringement Infringement”). If the infringing activity is solely within the Exclusive Field of Use and there are no Exclusive Licensees of the Patent Rights or (iii) any misappropriation or misuse of the Know-How that may come to such party’s attention. infringed Licensed Patents, Licensee and Licensor 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 Licensee and Licensor, to terminate any infringement, or claim of invalidity, unenforceability, or non-infringement, of the Patent Rights or any misappropriation or misuse of the Know-How. However, Licensor, upon notice to Licensee, shall have the first right right, at its discretion, but not the obligation, to initiate initiate, direct and prosecute settle any infringement action or validity defense relating to such legal action infringement of the Licensed Patents (“Litigation”), at its own expense and in the name by counsel of Licensor its own choice, and Licensee, or to control the defense of any declaratory judgment action relating to the Patent Rights or the Know-How. Licensor shall promptly inform Licensee if it elects not to exercise such first right and Licensee shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Licensee and, if necessary, Licensor; provided that Licensee shall not admit the invalidity or fail to defend the validity of any the Patent Right without Licensor’s prior consent which shall not be unreasonably withheld. Each party ISF1 shall have the right right, at its own expense, to be represented in any such action by counsel of its own choice. In connection If ISF1 does not elect to be represented in such Litigation, Licensee shall reimburse ISF1 for all reasonable and customary costs and expenses incurred by ISF1 in cooperating with any actionreasonable requests made by Licensee including being joined to the Litigation proceeding. In all other cases of infringement of the Licensed Patents, Licensee ISF1 shall have the first right, at its discretion, but not the obligation, to initiate, direct and Licensor will cooperate fully and will provide each other with settle any information Litigation, provided that any settlement agreement granting rights under the Licensed Patents within the Exclusive Field of Use requires Licensee’s prior written consent (not to be unreasonably withheld, delayed or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceedingconditioned by Licensee), includingand, to the extent permissible such infringement is in the Exclusive Field of Use, Licensee shall have the right, at its own expense, to be represented in any such action by lawcounsel of its own choice. All Litigation by either party under this Section 7.5 shall be subject to the following: (a) The party having the first right to initiate, consultation on direct and approval settle any Litigation with respect to infringement of any settlementthe Licensed Patents under this Section 7.5 (the “First Right Party”) will provide the other party with written notice as to whether or not it intends to initiate such Litigation (“Initiation Notice”) within ninety (90) days following Notice of Infringement, and, if ISF1 is the status First Right Party, that Initiation Notice will include ISF1’s good faith estimate of any settlement negotiations and the terms expense of any offer related theretosuch Litigation. (b) In If Licensee is the event First Right Party with respect to any infringement of the Licensed Patents, and Licensee either notifies ISF1 within such 90-day period that Licensor elects Licensee does not intend to initiate Litigation with respect to such infringement, or Licensee fails to provide any Initiation Notice to ISF1 within such 90-day period, then ISF1 shall have the right, at its discretion, but not the obligation, to initiate, direct and settle Litigation with respect to such infringement at ISF1’s expense, provided that any settlement agreement granting rights under the Licensed Patents within the Exclusive Field of Use requires Licensee’s prior written consent (not to initiate and prosecute an action as provided in Section 6.1(abe unreasonably withheld, delayed or conditioned by Licensee), and Licensee elects to do so, the costs of shall not share in any agreed-upon course of action, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Licensor and Licensee; provided, that in the event that Licensee is unable to initiate or prosecute recovery from such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Licensee to initiate litigation to prosecute and maintain such actionLitigation. (c) Any recovery obtained If (A) ISF1 is the First Right Party with respect to any infringement of the Licensed Patents, (B) the infringing activity is both within and outside of the Exclusive Field of Use, and (C) ISF1’s Initiation Notice specifies that ISF1 intends to initiate Litigation, then, except as set forth in Section 7.5(d), such expenses shall be equitably allocated among such fields of use outside of the Exclusive Field of Use and the Exclusive Field of Use, by either or both reasonable agreement between ISF l, all Exclusive Licensees and Licensee (“Expense Allocation”). If ISF1, any Exclusive Licensee and Licensor Licensee are unable to reach agreement concerning the Expense Allocation within thirty (30) days of the Initiation Notice, ISF1 shall reasonably and in connection good faith allocate such expenses equitably taking into equal account the reasonable interests of Licensee, each Exclusive Licensee and ISF1, provided that in no event shall Licensee’s Expense Allocation exceed [***] without the express written consent of Licensee. If Licensee agrees in writing to pay its share of the expenses as allocated in this Section 7.5(c) within forty (40) days of the Initiation Notice, ISF1 will pennit Licensee to defer reimbursement for the Licensee’s allocation of expenses. Subject to Section 7.5(f), in no event may such deferment be later than sixty (60) days after the final adjudication, entry of a settlement agreement or dismissal of the Litigation. In addition, if the actual expenses of such Litigation exceed [***] of ISF1’s good faith estimate of such expenses as set forth in its Initiation Notice, Licensee shall not be obligated to pay more than its Expense Allocation on [***] of ISF1’s good faith estimate. (d) IfISF1 is theFirst Right Party and Licensee gives notice to ISF1 within forty (40) days of the Initiation Notice that Licensee declines to fund Licensee’s allocated share of expenses of the Litigation, then (i) Licensee will not be obligated to pay the expenses of such Litigation, and (ii) Licensee shall not share in any recovery. (e) IfISF1 is theFirst Right Party, ISF1 will carry out its obligations under the preceding portions of this Section 7.5 in an efficient and cost-effective manner. Licensee will, without any further compensation but with its reasonable out-of-pocket expenses reimbursed (except as set forth in Section 7.5(f)), cooperate fully with any and all reasonable requests by ISF1 relating to any such Litigation including being joined in any such Litigation proceeding. If ISF1 elects not to initiate, or after initiation elects not to continue, Litigation proceedings in respect of an allegation of infringement or to conduct a defense in respect of a Licensed Patent’s validity or enforceability, ISF1 will, within a reasonable period of time following its decision, inform Licensee of its election. Thereafter, if Licensee elects to have the right, at its own expense to initiate, conduct or settle such action or conduct such defense, it shall inform ISF1 of the same by written notice provided, however, that Licensee shall not have such rights unless and until consented to by ISF1 and all other Exclusive Licensees, if any, in writing. (f) Any money recovered by Licensee as a result of any action contemplated by Litigation under this Section 6.17.5 with respect to which it is the First Right Party, whether by settlement or otherwisewith respect to which ISF1 was the First Right Party but elected not to initiate or continue Litigation, will be distributed first to reimburse Licensee’ s and ISF1’s direct, reasonable, documented expenses actually incurred (and not previously reimbursed), and then any remaining balance shall be shared allocated to Licensee and be treated as Net Revenue for purposes of Section 4. la in order the quarter in which it is received. Any money recovered by ISF1 as follows: a result of any Litigation under this Section 7.5 which Licensee helps to fund will be distributed first to reimburse ISF1’s, Licensee’ s and any other Exclusive Licensee’s direct, reasonable, documented expenses actually incurred (i) although ISF1 will not receive reimbursement under this sentence of any such expenses already reimbursed to ISF1 by Licensee pursuant to this Section 7.5), and then any remaining balance shall be allocated pro rata to ISF1, Licensee and any other participating Exclusive Licensee in the party that 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, same proportion as such entity’s contribution to the extent possible, recover its costs aggregate expenses of bringing and expenses incurred in connection with conducting the action; and (iii) the amount of any recovery remaining shall then be allocated on a 75%/25% basis, with the party that initiated proceeding and prosecuted the action receiving 75% of the recovery and the other party receiving 25% of the recoverysettlement under this Section 7.5.”

Enforcement and Defense. (a) As soon as practicable, each of Licensor and Licensee shall give the other party Licensee notice of either (i) any infringement of the Licensor Patent Rights, or (ii) any claim of invalidity, unenforceability, or non-infringement of the Patent Rights or (iii) any misappropriation or misuse of the Licensor Know-How How, that may come to such partyLicensor’s attention. Licensee and Licensor 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 Licensee and Licensor, to terminate any infringement, or claim infringement of invalidity, unenforceability, or non-infringement, of the Licensor Patent Rights or any misappropriation or misuse of the Licensor Know-How. However, LicensorLicensee, upon notice to LicenseeLicensor, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Licensor and Licensee, or to control the defense of any declaratory judgment action relating to the Licensor Patent Rights or the Licensor Know-How. Licensor Licensee shall promptly inform Licensee Licensor if it elects not to exercise such first right and Licensee Licensor shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Licensee Licensor and, if necessary, Licensor; provided that Licensee shall not admit the invalidity or fail to defend the validity of any the Patent Right without Licensor’s prior consent which shall not be unreasonably withheldLicensee. Each party Party shall have the right to be represented by counsel of its own choice. In connection with any action, Licensee and Licensor will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, [62a] The obligation to the extent permissible by law, consultation on and approval notify of any settlement, infringement or misappropriation should be reciprocal. Licensee would be more likely to here of this type of activity given that Licensor would no longer be commercializing AIPLA A. [62b] The term “promptly” is open to subjective interpretation. Consider specifying a time limit. [62c] Some Licensees may wish to prevent the status of any settlement negotiations and the terms of any offer related thereto. (b) Licensor from enforcing its IP rights if Licensee elects not to do so. In the event that Licensor Licensee elects not to initiate and prosecute an action as provided in Section 6.1(a)6.5.1, and Licensee Licensor elects to do so, the costs of any agreed-upon course of actionaction to terminate infringement of Licensor Patent Rights or misappropriation or misuse of Licensor Know-How, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Licensor and Licensee; provided. For any action to terminate any infringement of Licensor Patent Rights or any misappropriation or misuse of Licensor Know-How, that in the event that Licensee is unable to initiate or prosecute such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Licensee to initiate litigation to prosecute and maintain such action. (c) . In connection with any action, Licensee and Licensor will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each Party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. Any recovery obtained by either or both Licensee and Licensor in connection with or as a result of any action contemplated by this Section 6.1Section, whether by settlement or otherwise, shall be shared in order as follows: (i) : the party that 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 Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) and the amount of any recovery remaining shall then be allocated between the Parties on a 75%/25% basispro rata basis taking into consideration the relative economic losses suffered by each Party. Licensor shall inform Licensee of any certification regarding any Licensor 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 Licensee with a copy of such certification within five (5) days of receipt. Licensor’s and Licensee’s rights with respect to the party initiation 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 Sections 6.5.1 through 6.5.4; provided, however, that initiated Licensee shall exercise its first right to initiate and prosecuted the prosecute any action receiving 75% and shall inform Licensor of such decision within ten (10) days of receipt of the recovery certification, after which time Licensor shall have the right to initiate and prosecute such action. Regardless of which Party has the 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 in decisions regarding the appropriate course of conduct for such action, and the other party receiving 25% right to join and participate in such action. [63] Provision is specific to drug products for which FDA market approval is required. A generic drug company can obtain 180 days of market exclusivity for its generic drug product if it is the first to file its ANDA and Paragraph IV certification, which certifies that the generic company’s drug product does not infringe the (orange book listed) patents of the recoverybranded drug company, and usually alleges that the branded drug company’s patents are unenforceable. The filing of the ANDA is an act of infringement, and unless the branded drug company files an infringement suit within 45 days, the FDA will approve the ANDA. If an infringement claim is asserted against a generic drug company, the FDA will suspend approval of the ANDA for the earlier of 30 months or until the court rules on the suit. Accordingly, ANDA litigation could heavily impact the value and market share of a branded drug. This provision obliges the parties to cooperate in the event that such litigation strategy becomes necessary due to an ANDA filing. This is to both parties’ benefit.

Enforcement and Defense. (ai) As soon as practicable, each of Licensor and Licensee Each Party shall give the other party notice of either (ia) any infringement of the Patent Rights, (ii) any claim of invalidity, unenforceabilityLICENSED PATENTS, or non-infringement of the Patent Rights or (iiib) any misappropriation or misuse of the KnowLICENSED KNOW-How HOW that may has come to such party’s its attention. Licensee and Licensor The Parties 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 Licensee and Licensor, Parties to terminate any infringement, or claim infringement of invalidity, unenforceability, or non-infringement, of the Patent Rights LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the Know-How. Howeverevent that LICENSED PATENTS are infringed by any Third- Party with respect to a PRODUCT in the Field of Use, LicensorCISTRON, upon notice to LicenseePMC, shall have the first right right, but not the obligation, to initiate institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such legal action at infringement, by counsel of its own expense and in the name of Licensor and Licenseechoice, or to control the defense of any declaratory judgment action relating arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. CISTRON shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of PMC. CISTRON shall keep PMC advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Patent Rights or the Know-How. Licensor Field of Use and CISTRON does not elect to institute an action, PMC, upon notice to CISTRON, shall promptly inform Licensee if it elects not to exercise such first right and Licensee shall thereafter have the right right, but not the obligation, to either initiate institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such action infringement, by counsel of its choice, or to control the defense of such any declaratory judgment action arising from such infringement or from the misappropriat on or misuse of LICENSED KNOW-HOW, at its own expense and in the name of Licensee and, if necessary, Licensor; provided that Licensee both Parties. PMC shall not admit settle, compromise or take any action in such litigation which diminish, limit or inhibit the invalidity scope, validity or fail to defend enforceability of LICENSED PATENTS without the validity prior approval of any the Patent Right without Licensor’s prior consent CISTRON, which shall not be unreasonably withheld. Each party . (iv) With respect to any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall have the right to be represented by counsel of its own choice. In connection with any action, Licensee and Licensor will cooperate fully and will shall provide each other with any information or and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates and Sublicensees to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each party Party shall keep the other informed of developments in the development of any action or proceeding, proceeding including, to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (b) In the event that Licensor elects not to initiate and prosecute an action as provided in Section 6.1(a), and Licensee elects to do so, the costs of any agreed-upon course of action, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Licensor and Licensee; provided, that in the event that Licensee is unable to initiate or prosecute such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Licensee to initiate litigation to prosecute and maintain such action. (cv) Any recovery obtained by either or both Licensee and Licensor Parties in connection with or as a result of any action or proceeding contemplated by this Section 6.17.5, whether by settlement or otherwise, shall be shared allocated in order as followsfollows : (i) the party that 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 the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated on a 75%/25% basis, with the party that initiated and prosecuted the action receiving 75% of the recovery and the other party receiving 25% of the recovery.