Common use of Infringement of Patents or Trademarks Clause in Contracts

Infringement of Patents or Trademarks. If the Licensee or Fresenius GmbH acquires actual knowledge of any infringement of any Patent or infringement or passing off of any Trademark in the Territory, Licensee or Fresenius GmbH shall promptly notify the Licensor thereof. The Licensor shall have the first right to bring suit against the person infringing or passing off (the "Infringer"). If necessary to the suit or if requested so to do by the Licensor, the Licensee and Fresenius GmbH agree to be joined or to join as a party in such suit. If the Licensee or Fresenius GmbH elects to do so, the Licensee or Fresenius GmbH may be represented in such proceedings by its own counsel at its own expense. In every case of reported infringement or passing off, the Licensor shall be allowed a reasonable time to investigate the alleged infringement and the advisability of starting suit, to correspond and negotiate with the Infringer, to engage counsel and to commence legal proceedings and/or discussions with the Infringer. In the event the Licensor does not bring suit in any such instance within a reasonable time and in any event within 45 days after being notified by the Licensee or Fresenius GmbH of the alleged infringement or passing off, the Licensee or Fresenius GmbH, or both shall have the right during the term of this agreement to suit in its own name or, with the approval of the Licensor or if necessary to the suit, jointly with the Licensor, for present and past infringement or passing off. The Licensor shall be kept informed at all times of all such proceedings taken by the Licensee or Fresenius GmbH. If the Licensor elects to do so, the Licensor may be represented in such proceedings by its own counsel at its own expense. The party bringing the action shall control the prosecution of such proceedings and shall bear all costs incurred in connection with such infringement and passing off of proceedings in the Territory. In the event that any such action is successfully prosecuted against an Infringer, any damages, accounting of profits or other recovery shall be applied first to reimburse the parties for their respective legal expenses in connection with the prosecution, and any remaining amounts shall then be divided equally between the parties.

Infringement of Patents or Trademarks. If the Licensee or Fresenius GmbH AG acquires actual knowledge of any infringement of any Patent or infringement or passing off of any Trademark in the Territory, Licensee or Fresenius GmbH AG shall promptly notify the Licensor thereof. The Licensor shall have the first right to bring suit against the person infringing or passing off (the "Infringer"). If necessary to the suit or if requested so to do by the Licensor, the Licensee and Fresenius GmbH AG agree to be joined or to join as a party in such suit. If the Licensee or Fresenius GmbH AG elects to do so, the Licensee or Fresenius GmbH AG may be represented in such proceedings by its own counsel at its own expense. In every case of reported infringement or passing off, the Licensor shall be allowed a reasonable time to investigate the alleged infringement and the advisability of starting suit, to correspond and negotiate with the Infringer, to engage counsel and to commence legal proceedings and/or discussions with the Infringer. In the event the Licensor does not bring suit in any such instance within a reasonable time and in any event within 45 120 days after being notified by the Licensee or Fresenius GmbH AG of the alleged infringement or passing off, the Licensee or Fresenius GmbHAG, or both shall have the right during the term of this agreement to suit in its own name or, with the approval of the Licensor or if necessary to the suit, jointly with the Licensor, for present and past infringement or passing off. The Licensor shall be kept informed at all times of all such proceedings taken by the Licensee or Fresenius GmbH. AG. If the Licensor elects to do so, the Licensor may be represented in such proceedings by its own counsel at its own expense. The party bringing the action shall control the prosecution of such proceedings and shall bear all costs incurred in connection with such infringement and passing off of proceedings in the Territory. In the event that any such action is successfully prosecuted against an Infringer, any damages, accounting of profits or other recovery shall be applied first to reimburse the parties for their respective legal expenses in connection with the prosecution, and any remaining amounts shall then be divided equally between considered Profits and shared by the partiesparties in accordance with Article 10. In the event that any such action is unsuccessful the party or parties bringing the action shall be responsible for paying any costs which may be awarded to the successful defendant.

Infringement of Patents or Trademarks. If the Licensee or Fresenius GmbH acquires actual knowledge the Licensor becomes aware of any infringement of any Patent or infringement or passing off of any Trademark other Intellectual Property right relating to the Cascade Process in the Territory, the Licensee or Fresenius GmbH the Licensor, as the case may be, shall promptly notify the Licensor other party thereof. The If requested by the Licensee to do so, the Licensor shall have the first right to bring suit against the person Person infringing or passing off (the "Infringer"). If ) and, if necessary to the suit or and if requested so to do by the Licensor, the Licensee and Fresenius GmbH shall agree to be joined or to join as a party in such suit. If the Licensee or Fresenius GmbH elects to do so, the Licensee or Fresenius GmbH may be represented in such proceedings by its own counsel at its own expense. In every case of reported infringement or passing off, the Licensor shall be allowed a reasonable time to investigate the alleged situation, to come to an independent conclusion on the question of infringement or passing off and the advisability of starting suit, to correspond and negotiate with the Infringer, to engage counsel and to commence start legal proceedings and/or discussions with the Infringerproceedings. In the event the Licensor does not bring suit in any such instance within a reasonable time and in any event within 45 60 days after being notified by the Licensee or Fresenius GmbH becoming aware of the alleged infringement or passing off, the Licensee or Fresenius GmbH, or both shall have the right during the term of this agreement Agreement to suit sue in its own name or, with the approval of the Licensor or if necessary necexxxry to the suit, jointly with the Licensor, for present and past infringement or passing off. The Licensor shall be kept informed at all times of all such proceedings taken by the Licensee or Fresenius GmbH. Licensee. If the Licensor elects to do so, the Licensor may be represented in such proceedings by its own counsel at its own expense. The party bringing the action shall control the prosecution of such proceedings and shall bear all costs incurred in connection with such infringement and passing off of proceedings in the Territoryproceedings. In the event that any such action is successfully prosecuted against an Infringer, any damages, accounting of profits or other recovery shall be applied first to reimburse the parties for their respective legal expenses in connection with the prosecution, and any remaining amounts shall then be divided equally between the partiesparties in proportion to the damages suffered by each of them as a result of the infringing or passing off conduct, subject to dispute resolution pursuant to this Agreement if the parties are unable to agree upon such proportion. In the event that any such action is unsuccessful the party having carriage of the action shall be responsible for paying any costs which may be awarded to the successful defendant.