Common use of Enforcement of Licensed Patent Rights Clause in Contracts

Enforcement of Licensed Patent Rights. 10.4.1. If any patent within the Licensed Patent Rights is or might reasonably be infringed by a Third Party in the Territory (an "Infringement"), the Party first having knowledge of such Infringement shall promptly notify the other Parties in writing. Such notice shall set forth the facts of such Infringement in reasonable detail. 10.4.2. TARCANTA and/or TARCANTA LTD. shall have the right, but not the obligation, to take action in their own names and at their sole expense to secure the cessation of any Infringement or to institute, prosecute and control legal proceedings to prevent or restrain such Infringement. CIMAB agrees to timely assist TARCANTA and TARCANTA LTD. in the prosecution of any action or legal proceedings related to such Infringement, and agrees to be joined, and to cause its Licensors to be joined, as party plaintiffs and to give the TARCANTA and TARCANTA LTD. reasonable assistance and authority to control, file, prosecute and settle the suit. Subject to the foregoing, CIMAB shall have the right, but not the obligation, to participate at its own cost and expense in any suit or other proceeding wherein the validity or enforceability of any Licensed Patent Right is at issue in the context of a claim or defense. All of TARCANTA and TARCANTA LTD.'s costs and expenses in bringing such suits (including TARCANTA and TARCANTA LTD.'s internal costs and expenses that are specifically attributable thereto) shall be reimbursed first out of any damages or other monetary awards recovered in favor of the Parties. Any remaining damages or other monetary awards shall be allocated [*] to CIMAB and [*] to TARCANTA and TARCANTA LTD.. 10.4.3 If TARCANTA and TARCANTA LTD. elect not to exercise their right to prosecute or take other appropriate action in connection with an Infringement or fail to take any such action within ninety (90) days of first receiving notice of such Infringement, CIMAB may do so at its own expense. If such case, TARCANTA and TARCANTA LTD. agrees to assist CIMAB in the prosecution of any action or legal proceedings related to such Infringement. Notwithstanding anything in this Agreement to the contrary, TARCANTA and TARCANTA LTD. shall have the right, but not an obligation, to participate at their own cost and expense in any suit or other proceeding wherein the validly or enforceability of any Licensed Patent Right is being invoked in the context of a claim or defense. All of CIMAB's costs and expenses in bringing such suits (including CIMAB's internal costs and expenses that are specifically attributable thereto) shall be reimbursed first out of any damages or other monetary awards recovered in favor of the Parties. Any remaining damages or other monetary awards shall be allocated [*] to TARCANTA and TARCANTA LTD. and [*] to CIMAB. 10.4.4 The Party that takes action or prosecutes legal proceedings relating to the Infringement in accordance with this Agreement shall be responsible for the selection of counsel to prosecute legal proceedings. 10.4.5 In no event shall either Operating Party settle an action or proceeding against an infringer with respect to an Infringement in the Territory without the prior written consent of the other Operating Party. Such consent shall not be unreasonably withheld or delayed, and may be withheld only if such settlement would materially and adversely affect the interest of such other Operating Party.

Enforcement of Licensed Patent Rights. 10.4.1. If With respect to any patent within the infringement of Licensed Patent Rights is within the Field or might reasonably be infringed by a Third Party in with respect to any Products within the Territory (an "Infringement")Field, the Party first having knowledge of such Infringement shall promptly notify the other Parties in writing. Such notice shall set forth the facts of such Infringement in reasonable detail. 10.4.2. TARCANTA and/or TARCANTA LTD. Aptamera shall have the primary right, but not the obligation, to take action in their own names and at their sole expense to secure the cessation of any Infringement or to instituteinitiate, prosecute and control legal proceedings to prevent or restrain such Infringement. CIMAB agrees to timely assist TARCANTA and TARCANTA LTD. in the prosecution of any action or legal proceedings related with respect to such Infringementinfringement, by counsel of its own choice, to secure the Portions of this Exhibit were omitted and agrees have been filed separately with the Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 406 of the Securities Act. cessation of the infringement or to enter suit against the infringer. Archemix and/or Gilead shall have the right to participate in any such action and to be joinedrepresented by counsel of its own choice and at its own expense. If Aptamera fails to exercise its right to bring an action or proceeding to so enforce a Licensed Patent Right within a period of [***] days after receipt of written notice of infringement of such Licensed Patent Right, then Archemix shall have the right to bring and control any such action by counsel of its own choice and at its own expense. If both Aptamera and Archemix fail to cause exercise its Licensors right to bring an action or proceeding to so enforce a Licensed Patent Right within a period of [***] days after receipt of written notice of infringement of such Licensed Patent Right, then Gilead shall have the right to bring and control any such action by counsel of its own choice and at its own expense. In such an event, Gilead shall have the right to extend the right to participate in and control, as applicable, any such action to its Affiliates and sublicensees, as Gilead in its sole discretion deems necessary to satisfy its obligations to such other sublicensees of the Licensed Patent Rights. If any such action or proceeding is brought by an Interested Party hereunder, the other Interested Parties agree to be joined, joined as necessary as party plaintiffs and to give the TARCANTA and TARCANTA LTD. Interested Party bringing suit reasonable assistance and authority to control, filefile and prosecute the suit as necessary, prosecute and settle at the sole expense of the Interested Party bringing suit. Subject to the foregoing, CIMAB shall have the right, but not the obligation, to participate at its own cost and expense in any suit or other proceeding wherein the validity or enforceability of any Licensed Patent Right is at issue in the context of a claim or defense. All of TARCANTA and TARCANTA LTD.'s The costs and expenses in of the Interested Party bringing such suits suit under this Section 11.3.2 (including TARCANTA and TARCANTA LTD.'s the internal costs and expenses that are specifically attributable theretoto such suit) shall be reimbursed first out of any damages or other monetary awards recovered in favor of the Interested Parties. Any , and any remaining damages shall be paid to the Interested Party that controlled such action. No settlement or consent judgment or other monetary awards shall be allocated [*] voluntary final disposition of a suit under this Section 11.3.2 relating to CIMAB and [*] to TARCANTA and TARCANTA LTD.. 10.4.3 If TARCANTA and TARCANTA LTD. elect not to exercise their right to prosecute or take other appropriate action in connection with an Infringement or fail to take any such action within ninety (90) days of first receiving notice of such Infringement, CIMAB may do so at its own expense. If such case, TARCANTA and TARCANTA LTD. agrees to assist CIMAB in the prosecution of any action or legal proceedings related to such Infringement. Notwithstanding anything in this Agreement to the contrary, TARCANTA and TARCANTA LTD. shall have the right, but not an obligation, to participate at their own cost and expense in any suit or other proceeding wherein the validly or enforceability of any a Licensed Patent Right is being invoked in the context of a claim or defense. All of CIMAB's costs and expenses in bringing such suits (including CIMAB's internal costs and expenses that are specifically attributable thereto) shall may be reimbursed first out of any damages or other monetary awards recovered in favor of the Parties. Any remaining damages or other monetary awards shall be allocated [*] to TARCANTA and TARCANTA LTD. and [*] to CIMAB. 10.4.4 The Party that takes action or prosecutes legal proceedings relating to the Infringement in accordance with this Agreement shall be responsible for the selection of counsel to prosecute legal proceedings. 10.4.5 In no event shall either Operating Party settle an action or proceeding against an infringer with respect to an Infringement in the Territory entered into without the prior written consent of the other Operating Party. Such Interested Parties not controlling such action, such consent shall not to be unreasonably withheld withheld, delayed or delayed, and may be withheld only if such settlement would materially and adversely affect the interest of such other Operating Partyconditioned.