Infringement Action by Third Parties. (a) In the event of the institution of any suit by a third party against ACORDA for patent infringement involving the manufacture, sale, offer for sale, distribution or marketing of any Product in the Territory, ACORDA shall have the right to defend such suit at its own expense, and MAYO hereby agrees to assist and cooperate with ACORDA, at ACORDA’s expense, to the extent necessary in the defense of such suit. During the pendency of any such action, ACORDA shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of the reasonable costs actually incurred in such action.
(b) If ACORDA finally prevails and receives an award from such third party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party for its pro rata share of costs and expenses incurred in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement.
(c) If ACORDA finally loses, whether by judgment, award, decree or settlement, and is required to pay a royalty or damages to such third party, ACORDA shall continue to pay the royalties for such Licensed Product in the country(ies) which is the subject of such action, but shall be entitled to a credit against such payments in an amount-equal to the royalty or damages paid to such third party, but in no event shall such credit be more than 50% of the royalties due hereunder for such Licensed Product in such country(ies).
(d) If ACORDA is required to pay a royalty or damages to a third party pursuant to Section 6.4(c) and the amount of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely with respect to such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4.
Infringement Action by Third Parties. As soon as it shall have knowledge thereof, each Party shall promptly advise the other Party of any infringement action instituted by a Third Party with respect to any Product or of any grounds for any such action, regardless of whether such action has been instituted. In the event of the institution of any suit by a Third Party against SGI for patent infringement involving the manufacture, sale, distribution or marketing of any Product in the Territory, SGI shall have the right to defend such suit at its own expense, and BMS hereby agrees to assist and cooperate with SGI, at its own expense, to the extent necessary in the defense of such suit; provided, however, that with respect to any suit involving Patents licensed to BMS under the BMS In-Licenses, BMS shall have the right, at its sole discretion, to participate therein at its own expense. For so long as BMS shall continue to participate materially in any such action, SGI shall not enter into any settlement arrangement or other amicable arrangement without the prior written consent of BMS. During the pendency of such action, SGI shall continue to make all payments due under this Agreement. If, as a result of any judgment, award, decree or settlement resulting from an action instituted by a Third Party, SGI is required to pay damages and/or a royalty to such Third Party, SGI shall be solely responsible for the payment of such damages and/or such royalties for such Products to such Third Party and shall continue to pay royalties pursuant to this Agreement in the country which is the subject of such action. All royalties paid by SGI pursuant to this Section 10.2 shall be deemed to constitute Third Party Royalties for purposes of Section 5.3.
Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a Third Party against R-Pharm for patent infringement involving the research, development, usage, making, sale, distribution, export within the Territory and/or import or marketing of the Product in the Field in the Territory, R-Pharm shall promptly notify Scynexis in writing of [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. such suit. [*] shall have the right to defend such suit at its own expense and shall be responsible for all damages incurred as a result thereof. [*] hereby agrees to assist and cooperate with [*], at [*] reasonable request and expense, in the defense of such suit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of such action, R-Pharm shall continue to make all payments due under this Agreement.
(b) Any award from such Third Party that arises as a result of such action (whether by way of judgment, award, decree, settlement or otherwise) shall be allocated as follows: (i) if [*] finally prevails, such award shall be applied first to reimburse [*] for all costs and expenses incurred by it with respect to such action; (ii) if [*] with respect to any such action and finally prevails, [*] shall [*]; or (iii) if [*] any such action, the expenses of such defense shall be [*], and [*] any part of such award remaining after the reimbursement of such expenses, [*].
(c) The provisions of Section (a) above notwithstanding, [*] shall not [*] under Section (a) to the extent that any infringement or claim results from: (i) [*] or [*]; or (ii) [*]. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
(d) In the event that one or more patent licenses from other third parties are required by R-Pharm or its Affiliates in order to research, develop, make or have made (from Compound supplied by Scynexis or its licensee), use, offer to sell, sell, market, distribute, export within the Territory and/or import Product in the Territory in the Field (hereinafter “Third Party Patent Licenses”), any consideration actually paid under such Third Party Patent Licenses by R-...
Infringement Action by Third Parties. Marketing Exclusivity/Patent Term Extensions
Infringement Action by Third Parties. (a) In the event of the institution of any suit by a third party against Kos for patent infringement involving the manufacture, use, sale, distribution or marketing of any Licensed Product, provided the basis of such suit is the practice by Kos of a Licensed Patent or Technology licensed hereunder, Kos shall promptly notify Fuisz in writing of such suit. Kos shall have the right to defend such suit at its own expense, and Fuisz shall assist and cooperate with Kos, at Kos's expense, to the extent necessary in the defense of such suit. During the pendency of such action, Kos shall continue to make all payments due under this Agreement.
(b) If Kos finally prevails in any such suit because it is held not to be infringing any patents belonging to such third party or because such third party's patent is held invalid, Kos shall continue to pay royalty as set forth in Article 4, *** ****************************************************************************** ****************************************************************************** ****************************************************************************** ***************************************************************.
(c) If Kos finally loses in any such infringement action, whether by judgment, award, decree or settlement, and is required to pay a royalty (including lump sum fees) to a third party, Kos shall continue to pay royalty as set forth in Article 4 with respect to such Licensed Product in the country which is the subject of such action, *************************************************************** *************************************************************** *************************************************************** *****************************************.
(d) Any ******************************************** *************************************************************** *****************************************.
Infringement Action by Third Parties. 23 9.4 ***.......................................... 23
Infringement Action by Third Parties. If a Third Party makes or threatens against Spectrum, its Affiliates or sublicensees any claim of infringement of a right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder (each an "Alleged Infringement"), Spectrum shall have the right and obligation to respond to and defend any and all such Alleged Infringements. Spectrum shall promptly notify Altair in writing and provide a copy of (i) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. Altair shall have the right to jointly manage any such litigation, including the selection of counsel, and agrees to provide any necessary assistance that Spectrum may reasonably require in any such defense action. In the event of disagreement between Spectrum and Altair regarding litigation strategy or other matters pertaining to the litigation, including the selection of counsel, Spectrum shall have the final decision after consideration of Altair's position. If the Parties are successful in defending against the Alleged Infringement, reasonable costs of defense shall be equally shared between the Parties. Should claims be made directly against Altair, Altair shall also have the right, at its own expense, to retain counsel of its choice for its own defense in which case each Party will be responsible for its own costs and attorney fees. ***
Infringement Action by Third Parties. 9.4.1 In the event of the institution or threatened institution of any suit by a Third Party against DUSA for patent Infringement involving the sale, distribution or marketing of the Product in the Territory, DUSA shall promptly notify PN in writing of such suit. Unless otherwise covered by Section 11.2, DUSA shall have the right to defend such suit at its own expense. PN hereby agrees to assist and cooperate with DUSA, at DUSA's reasonable request and expense, in the defense of such suit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of such action and thereafter, DUSA shall continue to make all payments due under this Agreement.
9.4.2 In the event that DUSA incurs any liability to a Third Party for royalties or other damages as the result of any such action as described in Section 9.4.1 for which PN has indemnified DUSA under Section 11.2, DUSA shall be entitled (in addition to any damages which may arise under Section 11) to a credit against royalties due under this Agreement in an amount equal to the damages, costs and expenses, including third-party royalties which may be or become due. Any credit under this Section which is not applied in the period incurred may be carried forward and applied to any subsequent period until the credit has been fully applied. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Infringement Action by Third Parties. 8.9.1 If a Third Party asserts, whether raised directly or by way of counterclaim or affirmative defense, that any Patents or other Intellectual Property Rights owned by it is infringed by the manufacture, use, offer for sale, sale or importation of any Product in the Licensed Territory, or the proposed manufacture, use or sale of any Product in the Licensed Territory, or if a Party otherwise becomes aware of a potential infringement of a Third Party Patent or other Intellectual Property Right (each, an “Infringement Claim”), the Party first having knowledge of such Infringement Claim shall promptly provide the other Party with notice of same in accordance with Section 8.8 together with the related facts in reasonable detail.
8.9.2 Promptly following receipt of notice of any Infringement Claim by any Party, the Parties shall enter into a mutually agreeable joint defense agreement specifically with respect to such Infringement Claim. Such agreement shall provide for the mutual cooperation of both Parties (including making relevant witnesses and documents available), the exchange of information relating to such claims of infringement and the validity of such Third Party’s Patents or other Intellectual Property Rights and how the Parties should proceed with respect to the continuation of the manufacture, marketing and sale of the Product(s) at issue. If the Parties finally prevail and receives an award from such Third Party as a result of such Infringement Claim (whether by way of judgment, award, decree, settlement or otherwise), such award shall be applied first to reimburse both Parties for all costs and expenses incurred by the Parties with respect to such action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, Echo and MTIA shall divide the remaining funds between them in proportion to the economic losses suffered by each of them.
Infringement Action by Third Parties. In the event that either Party becomes aware of any actual or potential infringement of any BII Patent Rights by a third party who is making, using, selling, offering for sale or importing an infringing product in the Inspire Territory, that Party would promptly notify the other Party in writing thereof. BII shall within ninety (90) days inform Inspire whether BII will take any legal action against the infringer. If BII informs Inspire that it will not take any legal action, Inspire would have the backup right in the Inspire Territory (but not the obligation) to enforce the BII Patents against any such third party infringer. The Parties will fully cooperate with and reasonably assist each other in such proceedings. Any recovery from such proceedings in the Inspire Territory will be applied first to cover the costs incurred in such proceeding, and any remaining recovery will be treated as Net Sales to Inspire and subject to royalties in accordance with the royalty obligations contained in this Agreement. The provisions under this Clause 10.7 shall also apply also vice versa in the event that a third party infringes any Inspire Patent Rights in any country of the BII Territory.
