Infringement Litigation. (a) In the event that "substantial" Infringing Third Party Sales are occurring in a country in which ROCHE or its Affiliates or an Authorized Distributor is selling a CHIRON Licensed Product (in each such country, the "Impacted Product"), and ROCHE has notified CHIRON pursuant to Section 13.1 of the existence of such infringement in [**] (an "Infringement Notice"), then the provisions of this Section 13.2 shall apply. For purposes of this Section 13.2, "Major Country" shall mean [**].
(b) For purposes of this Section 13.2, an Infringing Third Party Sale shall be considered substantial in a country if the infringing third party achieves market share, in the case of Blood Screening of at [**], and in the case of Plasma Fractionation of at [**] of the Aggregated Products in such country [**]. For purposes of this Section 13.2, "Aggregated Products" means the number of Units of CHIRON Licensed Products of the applicable Field Category plus the number of Competitive Products sold (or used, in the case of Plasma Fractionation) in a country, and "Competitive Products" means the number of Units of Products which are sold (or used, in the case of Plasma Fractionation) of the applicable Field Category and which compete with a CHIRON Licensed Product sold or used by ROCHE or its Affiliates in a country.
(c) If the Infringement Notice identifies an Impacted Product in a Major Country and CHIRON fails to institute legal action in a Major Country or other country acceptable to ROCHE [**] following receipt by CHIRON of the Infringement Notice and infringement is not otherwise abated, then ROCHE shall be relieved of the obligation to pay the portion of Earned Royalties set forth in Section 13.2(d) with respect to the Impacted Product until such time as CHIRON institutes such legal action as described in this Section 13.2(c); provided, however, that CHIRON need not initiate or continue any such legal action, if, after reasonably diligent effort (including reasonably diligent effort by ROCHE if requested by CHIRON), CHIRON is unable to acquire admissible evidence sufficient to establish a prima facia case of infringement under the law of the applicable country; and provided further, that CHIRON shall not be obligated to institute or maintain more than one such action [**] of this Agreement nor more than three such actions at any time with regard to Impacted Products in Plasma Fractionation.
(d) If CHIRON has not instituted such legal action at the end of such [**], to the e...
Infringement Litigation. Each party shall notify the other party in writing in the event that any third party shall commence or threaten to commence an action against Terragen or Diversa alleging that the practice of a method or process embodied in one or more claims of Diversa Patent Rights or Terragen Patent Rights infringes a patent of a third party. Each party shall keep the other reasonably informed with respect to the progress of any such action from time to time. Upon a party's reasonable request and at its expense, the other party shall cooperate with the requesting party and its counsel with respect to the defense of any such action against the requesting party.
Infringement Litigation. COR shall have the first right (but not the obligation), at its own expense, to bring suit (or other appropriate legal action) against any actual or suspected infringement of the Patent Rights owned by COR. CURAGEN shall have the first right (but not the obligation), at its own expense, to bring suit (or other appropriate legal action) against any actual or suspected infringement of the Patent Rights owned by CURAGEN. With respect to Patent Rights that are jointly owned, COR shall have the first right (but not the obligation), at its own expense, to bring suit (or other appropriate legal action) against any actual or suspected infringement of the Patent Rights by a Third Party product in the COR Commercial Field and CURAGEN shall have the first right (but not the obligation), at its own expense, to bring suit (or other appropriate legal action) against any actual or suspected infringement of the Patent Rights by a Third Party product in the CURAGEN Commercial Field. If the Party given the first right does not take such action with respect to a jointly owned Patent Right within one hundred twenty (120) days after written notice from the other Party of the infringement, then the other Party shall have the right (but not the obligation), at its own expense, to bring suit against such infringement. The Party bringing the suit shall have the right to settle such suit. Any amount recovered, whether by judgment or settlement, shall first be applied to reimburse the costs and expenses (including attorneys' fees) of the Party bringing suit, then to the costs and expenses (including attorneys fees), if any, of the other Party. Any amounts remaining shall be allocated to each party in accordance with each Party's damages incurred on account of such infringement, calculated in accordance with United States laws pertaining to patent damages.
Infringement Litigation. (a) In the event that "substantial" Infringing Third Party Sales are occurring in a country in which ROCHE or its Affiliates or an Authorized Distributor is selling a CHIRON Licensed Product (in each such country, the "Impacted Product"), and ROCHE has notified CHIRON pursuant to Section 13.1 of the existence of such infringement in [CONFIDENTIAL TREATMENT REQUESTED] (an "Infringement Notice"), then the provisions of this Section 13.2 shall apply. For purposes of this Section 13.2, an Infringing Third Party Sale shall be considered substantial in a country if the infringing third party achieves market share of at least [CONFIDENTIAL TREATMENT REQUESTED] of the Aggregated Products in such country as determined by an Independent Auditor paid for by ROCHE. For purposes of this Section 13.2, "Major Country" shall mean the United States, Germany, United Kingdom or Japan. For purposes of this Section 13.2, "Aggregated Products" means the number of CHIRON Licensed Products of the Applicable Product Category and Competitive Products sold in a country, and "Competitive Products" means Products which are sold in the Field and which compete with a CHIRON Licensed Product sold by ROCHE or its Affiliates in a country.
Infringement Litigation. Anesta represents that as of the Effective Date, to the best of its knowledge and belief (i) the use, importation, offer for sale and sale of OT-fentanyl Products in the Territory in accordance with this Agreement does not infringe any Third Party intellectual property right in the Territory, and (ii) there is no pending or threatened litigation relating to the OT-fentanyl Products and Anesta, and (iii) Anesta has not received any written notice from any Third Party either contesting the validity of any of the Anesta Patents or claiming that any use of the Anesta Patents or OT-fentanyl Products infringe on any intellectual property of a Third Party.
Infringement Litigation. 8.1 Licensor agrees to provide such assistance and cooperation at Licensee’s expense as may be reasonably necessary to assist Licensee in its defense of any litigation which seeks to prevent Licensee’s right to use the Licensed Patents necessary for the processing, manufacture, use, or sale of the Licensed Products.
8.2 If Licensor or Licensee becomes aware of any third party’s infringement of the Licensed Patents, it shall immediately notify the other party in writing of such infringement or unauthorized use. A decision to bring suit shall be in the sole discretion of the Licensor. Licensee shall have the right to be represented in any such proceeding by counsel of its choice, at its expense. Licensor shall be entitled to any recovery of damages resulting from such lawsuit in the event Licensor has filed and prosecuted such lawsuit.
8.3 If Licensor shall elect not to bring suit against the allegedly infringing party within one hundred eighty (180) days after notification thereof, Licensee may bring suit in its own name, but shall do so at Licensee’s sole expense. Licensor shall provide Licensee such nonfinancial assistance and cooperation in prosecuting such case as Licensee may reasonably request. Licensor shall have the right to be represented in any such proceeding either by counsel of its choice, at its expense or by Licensee’s counsel at Licensee’s expense, insofar as is possible or practical. Any costs reasonably incurred by Licensor in support of litigation brought by Licensee, excluding attorney’s fees from counsel elected by Licensor, shall be reimbursed to Licensor from any sums recovered by Licensee.
Infringement Litigation. To the extent that any Patent Rights licensed hereunder may be infringed by the manufacture, use, sale or importation of any Licensed Product by any third party, SurModics shall have the right, but not the obligation, if such Licensed Product is a Non-Exclusive Product, to prosecute at its own expense, or at the expense of Cordis if Cordis so requests, any action SurModics deems necessary. If SurModics fails to commence prosecution of such action within ninety (90) days following written request by Cordis or if the Licensed Product is an Exclusive Product, then Cordis may, in its own name and at its own expense, prosecute such action. If Cordis prosecutes any such action, it will not without the advance written consent of SurModics admit to the invalidity or unenforceability of any patent or claims within the Patent Rights or grant a license to a third party to any such patents or claims. SurModics shall cooperate and, if necessary, become a named party to the action. Should Cordis prosecute such action, Cordis shall indemnify, defend, and hold harmless SurModics from any claims or counterclaims related to the patent or patents in suit, lawsuit expenses (including attorneys fees), costs and judgments arising out of such litigation, but excluding adverse judgments regarding the validity, enforceability or claim interpretation of the patent or patents in suit. If SurModics elects to prosecute any such action, and it does so at its own expense, then it shall have the right to control the litigation. If Cordis elects to prosecute any such action, and it does so at its own expense, then it shall have the right to control the litigation. If SurModics prosecutes such action at Cordis' expense, the proceeds of the litigation, if any, shall first be used to reimburse Cordis for its expense of the litigation and the remainder, if any, shall be divided equally between SurModics and Cordis. In any such action, the prosecuting party shall promptly notify the non-prosecuting party of its decision to prosecute.
Infringement Litigation. Licensee shall notify PJI immediately if it discovers or learns of any infringing use of the Intellectual Property or if litigation involving the Intellectual Property is instituted or threatened against Licensee or PJI. If PJI, in its sole discretion, undertakes the defense or prosecution of any litigation relating to the Intellectual Property, Licensee agrees to execute such documents and to render such assistance as may reasonably be requested by PJI in conducting such defense or prosecution; provided that PJI will reimburse to Licensee any of its out-of-pocket expenses incurred in rendering such assistance. PJI will defend the Intellectual Property.
Infringement Litigation. GW shall have the first right (but not the ----------------------- obligation), at its own expense, to bring suit (or other appropriate legal action) against any actual or suspected infringement of the Patent Rights licensed hereunder provided that GW has an exclusive license to the infringed claim(s) of any such Patent Right. If GW does not take such action within one hundred twenty (120) days after written notice from CURAGEN of the infringement, CURAGEN shall have the right (but not the obligation), at its own expense, to bring suit against such infringement. Any amount recovered, whether by judgment or settlement, shall first be applied to reimburse the costs and expenses (including attorneys' fees) of the Party bringing suit, then to the costs and expenses (including attorneys' fees), if any, of the other Party. Any amounts remaining shall be allocated to each party in accordance with each Party's damages incurred on account of such infringement, calculated in accordance with United States laws pertaining to patent damages.
Infringement Litigation. (a) Definitions for this Section 11.11:
