Common use of Infringement and Litigation Clause in Contracts

Infringement and Litigation. 7.1 Rice and Licensee are responsible for notifying each other promptly of any infringement of Rice Intellectual Property or any misappropriation of Rice Confidential Information or Rice Technical Information that may come to their attention. Rice and Licensee shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee shall have the right, but not the obligation to prosecute in its own name such infringement or misappropriation at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to sue. Licensee shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice or grants any rights to Rice Intellectual Property, without Xxxx'x advance written consent. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice for its outside counsel fees and court costs with additional recoveries being shared equally by Licensee and Rice. 7.3 Licensee’s prosecution rights under Section 7.2 shall be subject to the continuing right of Xxxx to intervene at Xxxx'x own expense and join Licensee in any claim or suit for infringement or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by Licensee, irrespective of whether Xxxx becomes a co-plaintiff. Any financial recoveries shall first be applied to reimburse Licensee and Xxxx for their outside counsel fees and court costs with any remainder being shared equally between Rice and Licensee. 7.4 If Licensee fails to prosecute such infringement or misappropriation, Rice shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by Xxxx. 7.5 In any action to enforce any of the Rice Intellectual Property, either Party, at the request and expense of the other Party, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable in the sole discretion of Rice and upon advance notice to Licensee, to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three times the Royalties payable under Section 3.1. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice Patents.

Infringement and Litigation. 7.1 Rice PENN and Licensee ADEZA are responsible for notifying each other promptly of any infringement of Rice Intellectual Property or any misappropriation of Rice Confidential Information or Rice Technical Information that PENN PATENT RIGHTS which may come to their attention. Rice PENN and Licensee ADEZA shall consult one another in a timely manner concerning any appropriate response theretoto the infringement. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee shall have the right, but not the obligation to ADEZA may prosecute in its own name such infringement or misappropriation at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to sue. Licensee shall ADEZA must not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice PENN or grants any rights to Rice Intellectual Propertythe PENN PATENT RIGHTS, without Xxxx'x advance PENN's prior written consentpermission. Financial recoveries from any such litigation will first be applied retained by ADEZA; provided, that ADEZA will pay PENN a royalty on that portion of the financial recoveries which corresponds to reimburse Licensee and Rice for its outside counsel fees and court costs with additional recoveries being shared equally ADEZA's lost SUBLICENSE ROYALTIES or ADEZA's lost profits from the foregone distribution of PENN LICENSED PRODUCTS or from the foregone provision of PENN LICENSED SERVICES. Such royalty shall be based on the provisions of Section 3.1, taking into account the fact that royalties specified in Section 3.1 are expressed in terms of revenues received by Licensee and RiceADEZA instead of profits made by ADEZA. 7.3 Licensee’s prosecution ADEZA's rights under Section 7.2 shall be are subject to the continuing right of Xxxx PENN to intervene at Xxxx'x PENN's own expense and assert separately PENN's claim for infringement of the PENN PATENT RIGHTS or PENN may join Licensee ADEZA in any claim or suit for infringement of the PENN PATENT RIGHTS, subject to ADEZA's control of such claim or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by Licensee, irrespective of whether Xxxx becomes a co-plaintiffsuit. Any financial recoveries consideration received by either party in settlement of any claim or suit shall first be applied used to reimburse Licensee and Xxxx the parties for their outside counsel fees and court costs respective litigation expenses. Any excess over the total litigation expenses of both parties shall be shared in accordance with Section 7.2. In the event that the total consideration THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION. CONFIDENTIAL TREATMENT REQUESTED received by the parties in settlement of any remainder being shared equally claim or suit is less than the total litigation expenses of both parties, the consideration will be allocated between Rice and Licenseethe parties in proportion to their respective litigation expense. 7.4 If Licensee ADEZA fails to prosecute such infringement or misappropriationany infringement, Rice shall have the right, but not the obligation, to PENN may prosecute such infringement or misappropriation at its own expense. In such event, event financial recoveries will be entirely retained by XxxxPENN. 7.5 In any action to enforce any of the Rice Intellectual PropertyPENN PATENT RIGHTS, either Partyparty, at the request and expense of the other Party, party shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party party to undertake any activities, . including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable in the sole discretion of Rice and upon advance notice to Licensee, to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three times the Royalties payable under Section 3.1. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice Patents.

Infringement and Litigation. 7.1 Rice and Licensee are responsible for notifying each other promptly of any infringement of Rice Intellectual Property or any misappropriation of Rice Confidential Information or Rice Technical Information that may come to their attention. Rice and Licensee shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee shall have the right, but not the obligation to prosecute in its own name such infringement or misappropriation at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to sue. Licensee shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice or grants any rights to Rice Intellectual Property, without Xxxx'x Rice’s advance written consentpermission. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice for its outside counsel fees and court costs litigation expenditures with additional recoveries being shared equally by Licensee and Ricepaid to Licensee, subject to any royalties or other payments that would have been due Rice based upon Section 3 as if the litigation recovery had been revenue received from a sublicensee. 7.3 Licensee’s prosecution rights under Section 7.2 shall be subject to the continuing right of Xxxx Rice to intervene at Xxxx'x Rice’s own expense and join Licensee in any claim or suit for infringement or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx Any consideration received in settlement of any claim or suit shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by Licensee, irrespective of whether Xxxx becomes a co-plaintiff. Any financial recoveries shall first be applied to reimburse Licensee and Xxxx for their outside counsel fees and court costs with any remainder being shared equally between Rice and LicenseeLicensee in proportion with their share of the litigation expenses in such infringement action. 7.4 If Licensee fails to prosecute such infringement or misappropriation, Rice shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by XxxxRice. 7.5 In any action to enforce any of the Rice Intellectual Property, either Party, at the request and expense of the other Party, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable in the sole discretion of Rice and upon advance notice to Licensee, to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three times the Royalties payable under Section 3.1. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice Patents.

Infringement and Litigation. 7.1 Rice INO and Licensee ONCSD are responsible for notifying each other promptly of any known or suspected infringement of Rice Intellectual Property or any misappropriation of Rice Confidential Information or Rice Technical Information that ONCSD PATENT RIGHTS and INO PATENT RIGHTS, respectively, which may come to their attentionattention after the EFFECTIVE DATE. Rice INO and Licensee ONCSD shall consult one another in a timely manner concerning any an appropriate response theretoto the infringement. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee shall have ONCSD may prosecute infringement of the right, but not the obligation to prosecute in its own name such infringement or misappropriation INO PATENT RIGHTS at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to sue. Licensee ONCSD shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice INO or grants any rights to Rice Intellectual Propertythe INO PATENT RIGHTS, without Xxxx'x advance INO’s prior written consentpermission. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice ONCSD for its outside counsel fees and court costs litigation expenditures with additional recoveries being shared equally by Licensee and Ricepaid to ONCSD, subject to lost royalty due INO based on such infringement. 7.3 LicenseeINO may prosecute infringement of the ONCSD PATENT RIGHTS at its own expense. INO shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on ONCSD or grants any rights to the ONCSD PATENT RIGHTS, without ONCSD’s prosecution prior written permission. Financial recoveries from any such litigation will first be applied to reimburse INO for its litigation expenditures with additional recoveries being paid to INO, subject to lost royalty due ONCSD based on such infringement. 7.4 ONCSD’s rights under Section 7.2 shall be are subject to the continuing right of Xxxx INO to intervene at Xxxx'x INO’s own expense and join Licensee ONCSD in any claim or suit for infringement or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by Licensee, irrespective of whether Xxxx becomes a co-plaintiffINO PATENT RIGHTS. Any financial recoveries consideration received by INO or ONCSD in settlement of any claim or suit shall first be applied to reimburse Licensee shared between INO and Xxxx for their outside counsel fees and court costs ONCSD in proportion with any remainder being shared equally between Rice and Licenseeeach party’s share of the litigation expenses reasonably incurred in such infringement action. 7.4 7.5 INO’s rights under Section 7.3 are subject to the continuing right of ONCSD to intervene at ONCSD’s own expense and join INO in any claim or suit for infringement of the ONCSD PATENT RIGHTS. Any consideration received by INO or ONCSD in settlement of any claim or suit shall be shared between INO and ONCSD in proportion with each party’s share of the litigation expenses reasonably incurred in such infringement action. 7.6 If Licensee ONCSD fails to prosecute such any material infringement or misappropriationof INO PATENT RIGHTS, Rice shall have the right, but not the obligation, to INO may prosecute such material infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by XxxxINO. 7.5 7.7 If INO fails to prosecute any material infringement of ONCSD PATENT RIGHTS, ONCSD may prosecute such material infringement at its own expense. In such event, financial recoveries will be entirely retained by ONCSD. 7.8 In any action to enforce any of the Rice Intellectual PropertyINO PATENT RIGHTS, or the ONCSD PATENT RIGHTS, either Partyparty, at the request and reasonable expense of the other Partyparty, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party party to undertake any activities, including legal discovery, at the request of any third party party, except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant 7.9 INO agrees and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx may elect covenants not to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable xxx ONCSD for patent infringement for ONCSD’s practice in the sole discretion of Rice and upon advance notice ONCSD FIELD based on patents owned or controlled (having rights to Licensee, to grant non-exclusive licenses under xxx) by INO other than the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or INO PATENT RIGHTS provided ONCSD has not breached any of its employees haveobligations under this Agreement. However, through their work in return, ONCSD agrees not to challenge the validity, ownership, inventorship, or other related right associated with a INO owned or licensed patent. 7.10 ONCSD agrees and covenants not to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account xxx INO for the reduction patent infringement for INO’s practice in the scope INO FIELD based on patents owned or controlled (having rights to xxx) by ONCSD other than the ONCSD PATENT RIGHTS provided INO has not breached any of rights granted its obligations under this Agreement. However, in return, INO agrees not to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity validity, ownership, inventorship, or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three times the Royalties payable under Section 3.1. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x reasonable attorneys' fees, costs, and expenses other related right associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one ONCSD owned or more of the Rice Patentslicensed patent.

Infringement and Litigation. 7.1 Rice and Licensee are responsible for notifying each other promptly of any infringement of Rice Intellectual Property or any misappropriation of Rice Confidential Information or Rice Technical Information that may come to their attention. Rice and Licensee shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee shall have the right, but not the obligation to prosecute in its own name such infringement or misappropriation at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to sue. Licensee shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice or grants any rights to Rice Intellectual Property, without Xxxx'x advance written consent. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice for its outside counsel fees and court costs with additional recoveries being shared equally by Licensee and Rice. 7.3 Licensee’s prosecution rights under Section 7.2 shall be subject to the continuing right of Xxxx to intervene at Xxxx'x own expense and join Licensee in any claim or suit for infringement or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by Licensee, irrespective of whether Xxxx becomes a co-plaintiff. Any financial recoveries shall first be applied to reimburse Licensee and Xxxx for their outside counsel fees and court costs with any remainder being shared equally between Rice and Licensee. 7.4 If Licensee fails to prosecute such infringement or misappropriation, Rice shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by Xxxx. 7.5 In any action to enforce any of the Rice Intellectual Property, either Party, at the request and expense of the other Party, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable in the sole discretion of Rice and upon advance notice to Licensee, to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three times the Royalties payable under Section 3.1. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark OfficeOffice , with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice Patents.

Infringement and Litigation. 7.1 Rice and Licensee are responsible for notifying each other promptly of any infringement of Rice Intellectual Property Patents or any misappropriation of Rice Confidential Information or Rice Technical Information that may come to their attention. Rice and Licensee shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee shall have the right, but not the obligation to prosecute in its own name such infringement or misappropriation at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to suexxx. Licensee shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice or grants any rights to Rice Intellectual PropertyPatents, without Xxxx'x Rice's advance written consent. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice for its outside counsel fees and court costs with costs, following which Rice will be reimbursed for same. After which, any additional recoveries being shared equally by recoveries, after the deductions set forth above, will be split 65% to the Licensee and 35% to Rice. 7.3 Licensee’s prosecution rights under Section 7.2 shall be subject to the continuing right of Xxxx Rice to intervene at Xxxx'x own expense and join Licensee in any claim or suit for infringement or misappropriation of Rice Intellectual PropertyPatents. If Rice elects to join as a party, Xxxx Rice shall jointly control the action with Licensee. Rice shall retain the right to hire its own counsel, the costs of which are reimbursable as set forth in Section 7.2. Any financial recoveries shall be shared equally between Rice and Licensee. In any claim or suit for infringement of Rice Patents under Section 7.2, Licensee may request that Rice join as a party. Licensee shall not join Rice as a party to any action without Rice's prior written consent, which shall not be unreasonably withheld, subject to the following conditions: a) In the event the court or other adjudicating body requires that Rice be joined as an indispensable party or in some other capacity to establish or maintain standing to an infringement action, Licensee shall immediately notify Rice of the same and transmit the corresponding court documents to allow for Rice to respond as it deems appropriate. If the court or other adjudicating body ultimately maintains such requirement, then Rice shall consent to joinder, and Licensee may join Rice, as a party in such action. b) Licensee shall reimburse Rice for any out-of-pocket costs and expenses Rice incurs, including reasonable attorneys’ fees, as part of an action brought by LicenseeLicensee in which Licensee has requested Rice join as a party, irrespective of whether Xxxx Rice becomes a co-plaintiff. Any financial recoveries shall first be applied to reimburse Licensee and Xxxx for their outside counsel fees and court costs with any remainder being shared equally between Rice and Licensee. 7.4 If Licensee fails to prosecute such infringement or misappropriation, Rice shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by XxxxRice. 7.5 In any action to enforce any of the Rice Intellectual PropertyPatents, either Party, at the request and expense of the other Party, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx Rice may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable in the sole discretion of Rice and upon advance notice to Licensee, to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three two (2) times the Royalties payable under Section 3.13.1 or equal to 8%. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x Rice’s reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Rice Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice Patents.

Infringement and Litigation. 7.1 Rice LEHIGH and Licensee COMPANY are responsible for notifying each other promptly of any infringement of Rice Intellectual Property or any misappropriation of Rice Confidential Information or Rice Technical Information that LEHIGH PATENT RIGHTS which may come to their attention, [including notice to the other of any certification filed under the United States "Drug Price Competition and Patent Term Restoration Act of 1984"]. Rice LEHIGH and Licensee COMPANY shall consult one another in a timely manner concerning any appropriate response theretoto the infringement. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee shall have the right, but not the obligation to COMPANY may prosecute in its own name such infringement or misappropriation at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to sue. Licensee shall COMPANY must not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice LEHIGH or grants any rights to Rice Intellectual Propertythe LEHIGH TECHNICAL INFORMATION or the LEHIGH PATENT RIGHTS, without Xxxx'x advance LEHIGH'S prior written consentpermission. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice COMPANY for its outside counsel fees and court costs litigation expenditures with additional recoveries being shared equally by Licensee and Ricepaid to COMPANY, subject to a royalty due LEHIGH based on the provisions of Article 3. 7.3 Licensee’s prosecution COMPANY's rights under Section 7.2 shall be are subject to the continuing right of Xxxx LEHIGH to intervene at Xxxx'x LEHIGH's own expense and join Licensee COMPANY in any claim or suit for infringement or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by Licensee, irrespective of whether Xxxx becomes a co-plaintiffLEHIGH PATENT RIGHTS. Any financial recoveries consideration received by COMPANY in settlement of any claim or suit shall first be applied to reimburse Licensee shared between LEHIGH and Xxxx for COMPANY in proportion with their outside counsel fees and court costs with any remainder being shared equally between Rice and Licenseeshare of the litigation expenses in such infringement action. 7.4 If Licensee COMPANY fails to prosecute such infringement or misappropriationany infringement, Rice shall have the right, but not the obligation, to LEHIGH may prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by XxxxLEHIGH. 7.5 In any action to enforce any of the Rice Intellectual PropertyLEHIGH PATENT RIGHTS, either Partyparty, at the request and expense of the other Party, party shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable in the sole discretion of Rice and upon advance notice to Licensee, to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three times the Royalties payable under Section 3.1. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice Patents.

Infringement and Litigation. 7.1 Rice X. Xxxxx and Licensee Amylin are each responsible for notifying each other promptly of any infringement of Rice Intellectual Property or any misappropriation of Rice Confidential Information or Rice Technical Information that Curis Patent and Divided Patent which may come to their attention. Rice , including notice to the other of any certification filed under the United States “Drug Price Competition and Licensee Patent Term Restoration Act of 1984.” Curis and Amylin shall consult with one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee B. Amylin shall have the right, but not the obligation obligation, to prosecute in its own name such infringement or misappropriation at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to sue. Licensee Amylin shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice Curis or grants any rights to Rice Intellectual Propertythe Curis Patents, without Xxxx'x advance Curis’ written consentpermission which consent will not be unreasonably withheld after due consideration of Curis’ policies pertaining to intellectual property. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice Amylin for its outside counsel fees and court costs litigation expenditures with additional recoveries being shared equally by Licensee and Ricepaid to Amylin, subject to a royalty due Curis based on the provisions of Section 3 hereof. 7.3 Licensee’s prosecution C. Such rights under of Section 7.2 9(B) shall be subject to the continuing right of Xxxx Curis to intervene at Xxxx'x Curis’ own expense and join Licensee Amylin in any claim or suit for infringement or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by Licensee, irrespective of whether Xxxx becomes a co-plaintiffCuris Patents. Any financial recoveries consideration received by Amylin in settlement of any claim or suit shall first be applied to reimburse Licensee shared between Curis and Xxxx for Amylin in proportion with their outside counsel fees and court costs with any remainder being shared equally between Rice and Licenseeshare of the litigation expenses in such infringement action. 7.4 D. If Licensee Amylin fails to prosecute such infringement or misappropriationinfringement, Rice Curis shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by XxxxCuris. 7.5 E. In any action to enforce any of the Rice Intellectual PropertyCuris Patents or Divided Patents, either Partyparty, at the request and expense of the other Party, party shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable in the sole discretion of Rice and upon advance notice to Licensee, to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three times the Royalties payable under Section 3.1. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice Patents.

Infringement and Litigation. 7.1 Rice Licensee shall notify Licensor, and Licensee are responsible for notifying each other Licensor shall notify Licensee, promptly in writing of (i) any facts which may affect the validity, scope or enforceability of a Licensed Patent or (ii) any infringement of Rice Intellectual Property a Licensed Patent which becomes known to it. The parties shall cooperate with each other in attempting to eliminate the infringement identified by Licensee or Licensor. In the event of infringement by a third party of any Licensed Patents 8 within a Licensee Field or any misappropriation of Rice Confidential Information or Rice Technical Information that may come Non-exclusive Field which Licensee wishes to their attention. Rice and prosecute, Licensee shall consult one another in first make a timely manner concerning any appropriate response theretowritten request to Licensor to resolve such matter. 7.2 With respect If within ninety (90) days after any such notice of any alleged infringement or interference, Licensor has been unsuccessful in persuading the alleged infringer to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreementdesist, Licensee Licensor shall have the primary right, but shall not be obligated, to defend the obligation to prosecute in its own name such Licensed Patents against infringement or misappropriation interference by other parties in any country in which a Licensed Patent is in effect hereunder, including by bringing any legal action for infringement or defending any counterclaim of invalidity or action of a third party for declaratory judgment of non-infringement or interference. Licensor may, in such suit, use the names of Licensor and Licensee as party plaintiffs. Licensor shall be responsible for all costs and expenses of any enforcement activities, including legal proceedings, against infringers which Licensor initiates. Licensee agrees to join in and cooperate with any enforcement proceedings at its own Licensor's request, and at Licensor's expense, so long as provided that Licensee may be represented by Licensee's counsel in any such license is exclusive legal proceedings, at the time Licensee's own expense (subject to reimbursement under Section 7.5), acting in an advisory but not controlling capacity. No settlement, consent judgment, or other final, voluntary disposition of any suit brought by Licensor which waives any rights of the commencement Licensed Patents within a Licensee Field, or any Non-exclusive Field in which the Licensee is Doing Business, may be entered into without the prior written consent of such action. Before Licensee commences an action with respect to any infringement of such patentsLicensee, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to sue. Licensee which consent shall not settle or compromise be unreasonably withheld. Any recoveries in any such suit in a manner that imposes any obligations or restrictions on Rice or grants any rights to Rice Intellectual Property, without Xxxx'x advance written consent. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice for its outside counsel fees and court costs with additional recoveries being shared equally action brought by Licensee and Rice. 7.3 Licensee’s prosecution rights under this Section 7.2 shall be subject allocated as provided in Paragraph 7.5 hereof. Licensor shall have no legal or contractual obligation to the continuing right of Xxxx Licensee for its failure to intervene at Xxxx'x own expense and join Licensee initiate or participate in any claim such legal action. In the event that a declaratory judgment action alleging the invalidity or suit for non-infringement of the Licensed Patents shall be brought or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by raised against Licensee, irrespective of whether Xxxx becomes a co-plaintiff. Any financial recoveries shall first be applied to reimburse Licensee and Xxxx for their outside counsel fees and court costs with any remainder being shared equally between Rice and Licensee. 7.4 If Licensee fails to prosecute such infringement or misappropriation, Rice Licensor shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by Xxxx. 7.5 In any action to enforce any of the Rice Intellectual Property, either Party, at the request intervene and expense of the other Party, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx may elect to take over the sole defense of such action. 7.3 If within one hundred twenty (120) days of receipt by Licensor of notification from Licensee of substantial infringement in the declaratory judgment Licensee Field or Non-exclusive Field, Licensor has not notified Licensee of its intent to promptly commence an action or to terminate the declaratory judgment counterclaim portion of the other litigationalleged infringement, then Licensee may institute, in its own name, at its own expense. Each party shall promptly notify the , such litigation or other party hereto appropriate action as it may deem necessary to terminate such infringement, provided that Licensee has first given to Licensor thirty (30) days advance notice of its receipt intention to take such action and, provided further, that Licensor has not itself taken appropriate action during such 30-day period, and provided further that if Licensor reasonably believes that such litigation or action would adversely affect Licensor's use of any the Licensed Patent in a Non-exclusive Field in which it is then Doing Business, or affects a Licensor Field, and Licensor provides Licensee with its reasonable reason for such allegations. belief, then Licensee shall cooperate fully with Rice in connection with any not commence such defenselitigation without Licensor's written consent. Rice retains the right, exercisable Licensor shall be deemed to have consented to such action in the sole discretion event that Licensor fails to notify Licensee of Rice and upon advance notice to Licenseewhether it consents or not within such one hundred twenty (120) days, to grant non-exclusive licenses under specifying the Rice Patents in the Field of Use to third parties reasons therefor. In addition, Licensee may name Licensor as a means to resolve such declaratory judgment actions or counterclaimsparty plaintiff as required by law. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products.9 7.7 7.4 In the event that Licensee does challenge shall be prosecuting any alleged infringer pursuant to Section 7.3, it shall employ counsel reasonably satisfactory to Licensor and shall keep Licensor fully informed of all material developments of such proceedings. Licensee shall be responsible for all costs and expenses incurred by Licensee in any enforcement activities, including legal proceedings, against infringers which Licensee initiates. Licensor agrees to join in and cooperate with any enforcement proceedings at Licensee's request, and at Licensee's expense, provided that Licensor may be represented by Licensor's counsel in any such legal proceedings, at Licensor's own expense (subject to reimbursement under Paragraph 7.5), acting in an advisory but not controlling capacity. No settlement, consent judgment, or other final, voluntary disposition of any suit brought by Licensee which waives any rights within the validity Licensed Patents or enforceability of one or more outside of the Rice Patents (Licensee Field may be entered into without the prior written consent of Licensor. In the event that a declaratory judgment action alleging the invalidity or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three times the Royalties payable under Section 3.1. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee non-infringement of the Licensed Patents shall be brought or raised against Licensee, Licensor shall have the right, but not the obligation, to intervene and take over the sole defense of such action as it relates to the Licensed Patent. Any recoveries in any action brought by Licensee under this Section 7.4 shall be allocated as provided in Paragraph 7.5 hereof. 7.5 All recoveries by way of royalties, damages and claims with respect to infringement actions instituted in claims made (including penalties and interest) (i) prosecuted by Licensor pursuant to Section 7.2, or (ii) prosecuted by Licensee pursuant to Sections 7.3 and 7.4, shall be applied first in satisfaction of any unreimbursed expenses (including attorneys' fees) of the party controlling the litigation (which shall be Licensor under Section 7.2 and Licensee under Section 7.3) and next to the other party to the extent of its unreimbursed expenses incurred in its participation and/or cooperation. Any remaining balance of damages shall be distributed (i) in the United States District Court case of damages respecting the Licensee Fields, ninety percent (90%) to Licensee and ten percent (10%) to Licensor, (ii) in Xxxxxx Countythe case of damages respecting any Non-exclusive Field in which neither Licensor nor Licensee is Doing Business, Texasthen fifty percent (50%) to Licensor and fifty percent (50%) to Licensee, or(iii) in the case of damages respecting any Non-exclusive Field in which both Licensor and Licensee are Doing Business, when appropriatethen in proportion to their respective net revenue for the 12 month period preceding such payment from the Non-exclusive Field in which they are doing business which is related to the damages, and (iv) in the United States Patent case of damages respecting any Non-exclusive Field in which only one (1) of Licensor or Licensee is doing business, then ninety percent (90%) to the party Doing Business in such Non-exclusive Field and Trademark Office, with at least thirty ten percent (3010%) days written notice to Ricethe other party. Licensee shall pay all of Xxxx’x reasonable attorneys' feeshave no interest in any recovery with respect to infringement actions instituted, costs, commenced and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Patent remains valid and enforceable after prosecuted by Licensor outside the challenge (even when Licensee Fields or the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice PatentsNon-exclusive Fields.

Infringement and Litigation. 7.1 Rice PENN and Licensee APOLLON are responsible for notifying each other promptly of any infringement of Rice Intellectual Property PENN PATENT RIGHTS or any misappropriation of Rice Confidential Information or Rice Technical Information that JOINT PATENT RIGHTS which may come to their attention, including notice to the other of any certification filed under the United States "Drug Price Competition and Patent Term Restoration Act of 1984". Rice PENN and Licensee APOLLON shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee APOLLON shall have the right, but not the obligation to prosecute in its own name such infringement or misappropriation at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to sue. Licensee APOLLON shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice PENN or grants any rights to Rice Intellectual Propertythe PENN PATENT RIGHTS or the PENN TECHNICAL INFORMATION, without Xxxx'x advance PENN's written consentpermission. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice APOLLON for its outside counsel fees and court costs litigation expenditures with additional recoveries being shared equally by Licensee and Ricepaid to APOLLON, subject to a royalty due PENN based on the provisions of ARTICLE 3 hereof. 7.3 Licensee’s prosecution Such rights under of Section 7.2 shall be subject to the continuing right of Xxxx PENN to intervene at Xxxx'x PENN's own expense and License Agreement (I)--Apollon/Penn 2 December 1994 version to join Licensee APOLLON in any claim or suit for infringement or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by Licensee, irrespective of whether Xxxx becomes a co-plaintiffPENN PATENT RIGHTS and JOINT PATENT RIGHTS. Any financial consideration received by APOLLON in settlement of any claim or suit shall be shared between PENN and APOLLON in proportion with their share of the litigation expenses in such infringement action. Financial recoveries shall from any such litigation will first be applied to reimburse Licensee PENN and Xxxx APOLLON for their outside counsel fees litigation expenditures and court costs with any remainder the portion of the additional recoveries being shared equally between Rice and Licenseepaid to APOLLON is subject to a royalty due PENN based on the provisions of ARTICLE 3 hereof. 7.4 If Licensee APOLLON fails to prosecute such infringement or misappropriationinfringement, Rice PENN shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be retained entirely retained by Xxxx.PENN 7.5 In any action to enforce any of the Rice Intellectual PropertyPENN PATENT RIGHTS or the JOINT PATENT RIGHTS, either Partyparty, at the request and expense of the other Party, party shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party a party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable in the sole discretion of Rice and upon advance notice to Licensee, to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of up to three times the Royalties payable under Section 3.1. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice Patents.

Infringement and Litigation. 7.1 Rice and Licensee are responsible for notifying each other promptly of any infringement of Rice Intellectual Property or any misappropriation of Rice Confidential Information or Rice Technical Information that may come to their attention. Rice and Licensee shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Rice Patents that are exclusively licensed to Licensee pursuant to this Agreement, Licensee shall have the right, but not the obligation to prosecute in its own name such infringement or misappropriation at its own expense, so long as such license is exclusive at the time of the commencement of such action. Before Licensee commences an action with respect to any infringement of such patents, Licensee shall give careful consideration to the views of Rice and to potential effects on the public interest in making its decision whether or not to suexxx. Licensee shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Rice or grants any rights to Rice Intellectual Property, without Xxxx'x Rice's advance written consent. Financial recoveries from any such litigation will first be applied to reimburse Licensee and Rice for its outside counsel fees and court costs with additional recoveries being shared equally by Licensee and Rice. 7.3 Licensee’s prosecution rights under Section 7.2 shall be subject to the continuing right of Xxxx Rice to intervene at Xxxx'x Rice's own expense and join Licensee in any claim or suit for infringement or misappropriation of Rice Intellectual Property. If Rice elects to join as a party, Xxxx Rice shall jointly control the action with Licensee. Licensee shall reimburse Rice for any costs Rice incurs, including reasonable attorneys’ fees, as part of an action brought by Licensee, irrespective of whether Xxxx Rice becomes a co-plaintiff. Any financial recoveries shall first be applied to reimburse Licensee and Xxxx Rice for their outside counsel fees and court costs with any remainder being shared equally between Rice and Licensee. 7.4 If Licensee fails to prosecute such infringement or misappropriation, Rice shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by XxxxRice. 7.5 In any action to enforce any of the Rice Intellectual Property, either Party, at the request and expense of the other Party, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Licensee or Rice as a defendant and alleging invalidity or unenforceability of any of the Rice Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Xxxx Rice may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Licensee shall cooperate fully with Rice in connection with any such defense. Rice retains the right, exercisable in the sole discretion of Rice and upon advance notice to Licensee, to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve such declaratory judgment actions or counterclaims. Xxxx Rice shall also have the right to grant non-exclusive licenses under the Rice Patents in the Field of Use to third parties as a means to resolve or settle claims, suits or proceedings arising out of allegations that Rice or any of its employees have, through their work related to nanotechnology, infringed the intellectual property rights of others. If Rice grants any non-exclusive license under the terms of this Section, the economic terms of this Agreement will be adjusted to account for the reduction in the scope of rights granted to Licensee. Nothing in this Section 7.6 shall be construed as obligating Rice to resolve any dispute or to settle or defend any claim, suit or proceeding arising out of Licensee’s manufacture, use or sale of Rice Licensed Products. 7.7 In the event that Licensee does challenge the validity or enforceability of one or more of the Rice Patents (or any claims therein), Rice may, at its option, upon written notice to Licensee: (1) terminate this Agreement or (2) require an augmented royalty of [up to three ___ times the Royalties payable under Section 3.13.X or equal to ____]. Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Licensee of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Rice. Licensee shall pay all of Xxxx’x Rice’s reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Xxxx Rice Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Rice pay any of Licensee's attorneys' fees, costs, and expenses related to any challenge of one or more of the Rice Patents.