Common use of Infringement of Third Party Rights Clause in Contracts

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder infringes or may infringe the intellectual property rights of such Third Party. Genentech shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such Party.

Infringement of Third Party Rights. (a) Each Party shall promptly notify the other in writing of any written allegation or claim by a Third Party that the activity one or more activities of either of the Parties hereunder pursuant to this Agreement or the Manufacturing and Supply Agreement in relation to the Territory infringes or may infringe the intellectual property rights of such Third Party. Genentech Prior to the commencement of proceedings by any such Third Party each Party shall, in close consultation and liaison with the other, be responsible for responding to the Third Party on their own behalf. (b) Subject to Section 7.4(c), GW Pharma shall have the first right right, but not the obligation obligation, to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement defend at its own expense and by counsel of its own choice any claim involving alleged infringement of Third Party patent rights by GW Pharma’s activities inside and/or outside the Territory. If such claim alleges that the development, manufacture, use, offer for sale or sale of any Licensed Product in the Territory infringes such Third Party’s patent rights, Otsuka shall have the right, at its own expense, to be represented in any such action by counsel of its own choice, and Curis if GW Pharma does not defend against such claim, then Otsuka may assume such defense at its expense and using counsel of its own choice, in which case Otsuka’s unreimbursed direct costs of defense will be credited against subsequent Product Royalties, such credit amounts for any period not to exceed ***% of the Product Royalties due for such period. (c) If any such allegation or claim results in proceedings being brought by such Third Party and the proceedings are in the Territory, Otsuka shall have the right first right, but not the obligation, to defend at its own expense and by counsel of its own *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. choice any proceedings involving alleged infringement of such Third Party patent rights by Otsuka’s or GW Pharma activities. GW Pharma shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such *** percent (***%) of Otsuka’s unreimbursed direct costs for its defense of such claim will be credited against subsequent Product Royalties, such credit amounts for any period not to exceed ***% of the Product Royalties due for such period. If any such credit amounts are unabsorbed in a given period, the balance shall be carried forward to the next and subsequent periods as necessary until they have been fully absorbed. If Otsuka does not defend against any such claim, then GW Pharma may assume such defense at its own expense and by using counsel of its own choice, choice and Genentech in this case Otsuka shall have the right but not the obligation, at reimburse to GW Pharma *** percent (***%) of GW Pharma’s unreimbursed direct costs for its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third claim. (d) Each Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have keep the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion other Party fully informed with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and claims brought by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action Third Parties covered by counsel of its own choicethis Section 7.4(d). Neither Party shall have the right to settle any infringement action under this such claim covered by Section 10.5 in a manner that diminishes the rights 7.4(b) or interests of the other Party hereunder 7.4(c) without the written consent of such other Party, which consent shall not be unreasonably withheld or delayed. Otsuka and GW Pharma shall share the cost of any monetary judgment obtained by a Third Party claiming infringement of such a claim with GW Pharma bearing *** percent (***%) of any such amounts and Otsuka bearing *** percent (***%) of any such amounts. Otsuka shall be entitled to deduct *** percent (***%) of the costs thereof from Product Royalty payments to GW Pharma; provided, however, no such payment of Product Royalty shall be reduced as a result of such deduction below *** percent (***%) of the amount that would have otherwise been paid. Any such amounts not so deducted as a result *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. of the application of the foregoing limitation shall be carried forward and deducted from subsequent payments of Product Royalty until fully absorbed.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties parties hereunder infringes or may infringe the intellectual property rights of such Third Party. Genentech Allergan shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by GenentechAllergan’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis ACADIA shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Allergan fails to proceed in a timely fashion with regard to such defense, Curis ACADIA shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Allergan shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis ACADIA shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ ACADIA’s activities under this Agreement at its own expense and by counsel of its own choice, and Genentech Allergan shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis ACADIA fails to proceed in a timely fashion with regard to such defense, Genentech Allergan shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis ACADIA shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder party without the consent of such Partyparty.

Infringement of Third Party Rights. Each If either Party shall promptly notify the other in writing becomes aware of any allegation intellectual property in the Territory owned by a Third Party that it believes will, or may, be infringed by the activity of either manufacture, importation, development or commercialization of the Product in the Territory as contemplated by this Agreement, such Party shall notify the other Party of such intellectual property. The Parties hereunder infringes or may infringe then shall discuss the matter and seek in good faith to agree on whether the Parties should take a license under such intellectual property rights property, and if so, on what terms; provided that, if the Parties are unable to agree after a reasonable period, not to exceed thirty (30) days, of good faith discussions, then IceCure shall have the right, but not the obligation, to obtain such a license on such terms as it determines in its sole discretion. In the event any Third Party files a claim alleging infringement of the Intellectual Property Rights of such Third Party. Genentech Party by the manufacture, importation, development or commercialization of the Product in the Territory as contemplated by this Agreement, IceCure shall have the first right but not the obligation to bring and control any defense of any such claim involving alleged infringement of Third Party rights by Genentechclaim, at IceCure’s activities under this Agreement at its own sole cost and expense and by counsel of its own choice, and Curis Terumo shall have the right but not the obligation, at its own expenseright, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own Terumo’s sole cost and expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle enter into any infringement settlement or compromise of any action under this Section 10.5 9.4 which would in a any manner that diminishes the rights alter, diminish, or interests be in derogation of the other Party hereunder Party’s rights under this Agreement without the prior written consent of such other Party, which shall not be unreasonably withheld or delayed. Subject to preceding sentence, IceCure shall be responsible for any and all fees, milestones, royalties and other payments owed to a Third Party under any agreement entered by IceCure with such Third Party in connection with the sale, offer for sale or import of the Product in the Territory.

Infringement of Third Party Rights. Each Party or its Affiliate shall promptly notify the other Party in writing of any allegation by a Third Party that the activity manufacture, development, importation, use, offer for sale or sale of either of a Compound or Product covered by the Parties hereunder MTPC Intellectual Property, infringes or may infringe the intellectual property rights of such Third PartyParty in any country of the LICENSEE Territory or the MTPC Territory. Genentech LICENSEE or its Affiliate or sublicensee shall have the first right but not the obligation to control any the defense of any claim alleging that the manufacture, development, importation, use, offer for sale or sale of such claim involving alleged infringement of Compound or Product in the LICENSEE Territory infringes any such Third Party rights or may settle on terms that it deems advisable in its sole discretion, provided that any final disposition of the litigation that will restrict the claims in or admit any invalidity of any MTPC Patent shall not be made without full consultation with and approval by Genentech’s activities under this Agreement at its own expense and by counsel of its own choiceMTPC, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choiceunreasonably withheld. If Genentech LICENSEE or its Affiliate or sublicensee fails to proceed in a timely fashion manner with regard respect to such defense, Curis MTPC shall have the right but not the obligation to control any such the defense of such claim at claim. The Parties shall consult and cooperate fully to determine a course of action. If, finally, LICENSEE or its own expense and Affiliate or sublicensee is required by counsel order or judgment of any court in any jurisdiction, or LICENSEE or its own choiceAffiliate or sublicensee in its sole discretion after having obtained an outside legal opinion, believes it necessary to obtain a license, obtains a license under such intellectual property right from such Third Party, and Genentech shall have makes payments to such Third Party to avoid alleged infringement, then [*] of the right but not the obligation, at its own expense, royalty or other payments required to be represented in any paid by LICENSEE or its Affiliate or sublicensee to such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities as the result of a judgment or settlement under this Agreement at its own expense and by counsel Section 9.6 (“Third Party Payment”) shall be creditable against the royalty payments pursuant to Section 5.3 due MTPC with respect to the sale of its own choicesuch Product in such country, provided, however, that in no event shall the royalties payable to MTPC be reduced to less than [*] of the amount due under this Agreement, and Genentech shall have provided further any remaining portion the right but [*] of the Third Party Payment not credited pursuant to this Section 9.6 may be carried over against the obligation, at its own expense, royalties payable to be represented MTPC for the subsequent period in any such action by counsel of its own choicewhich the royalties are due. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Each Party shall have the right to participate in the defense of any such claim with counsel of its choice at its own expense. MTPC or its Affiliate or licensee shall have the first right to control the defense of any claim alleging that the manufacture, development, importation, use, offer for sale or sale of the Compound or Product in the MTPC Territory infringes any such Third Party rights or may settle on terms that it deems advisable in its sole discretion, provided that MTPC and any infringement action MTPC Affiliate or licensee will not take any step in relation to such proceedings which might have a detrimental effect on LICENSEE’s rights under this Section 10.5 Agreement and in a manner that diminishes particular the rights or interests prosecution, maintenance and defence of the other Party hereunder without MTPC Patents in the consent of such PartyLICENSEE Territory.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either Licensee, Mirati, or any of the Parties hereunder their respective Affiliates or Sublicensees, as applicable, pursuant to this Agreement infringes or may infringe the intellectual property rights of such a Third Party, and will include in such notice a copy of any summons or complaint (or the equivalent thereof) received regarding the foregoing. Genentech Thereafter, the Parties will promptly meet to consider the claim or assertion and the appropriate course of action and may, if appropriate, agree on and enter into a “common interest agreement” wherein the Parties agree to their shared, mutual interest in the outcome of such potential dispute. The Parties will assert and not waive the joint defense privilege with respect to any communications between the Parties in connection with the defense of such claim or assertion. Licensee shall have the first sole right but not the obligation to control any defense of any such claim against Licensee (or its Affiliate or Sublicensee) involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement of Licensee or its Affiliate or Sublicensee in the Licensed Territory, at its own expense and by counsel of its own choice, and Curis Mirati shall have the right but not (if such actions relate to Licensed Product), at its own expense, to be separately represented in any such action by counsel of its own choice. Licensee shall keep Mirati informed on the obligationstatus of such defense action. Subject to Licensee’s indemnification obligations under Section 14.1, Mirati shall have the sole right to control any defense of any such claim against Mirati involving alleged infringement of Third Party rights by activities of Mirati or its Affiliates or other licensees at its own expense and by counsel of its own choice, and Licensee shall have the right (if such actions relate to Licensed Product activities in the Licensed Territory), at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such Party.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties parties hereunder infringes or may infringe the intellectual property rights of such Third Party. Genentech Specialty Laboratories shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s Specialty Laboratories' activities under this Agreement at its own expense and by counsel of its own choice, and Curis Epoch shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Specialty Laboratories fails to proceed in a timely fashion with regard to such defense, Curis Epoch shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Specialty Laboratories shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Curis Epoch shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ Epoch's activities under this Agreement at its own expense and by counsel of its own choice, and Genentech Specialty Laboratories shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Curis Epoch fails to proceed in a timely fashion with regard to such defense, Genentech Specialty Laboratories shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis Epoch shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 9.5 in a manner that diminishes the rights or interests of the other Party hereunder party without the consent of such Partyparty.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder infringes or may infringe the intellectual property rights of such Third Party. Subject to the rights of the Existing Licensors pursuant to the Existing License Agreements, Genentech shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis Renovis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis Renovis shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis Renovis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by CurisRenovis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis Renovis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis Renovis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party Party, or imposes any additional obligation on the other Party, hereunder without the consent of such Party.

Infringement of Third Party Rights. Each Party Genetronics and Ethicon shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties in connection with this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech Genetronics shall have the first right but not the obligation to control any the defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement claims with respect to the Genetronics Technology, at its own expense and by counsel of its own choice, and Curis Ethicon shall have the right but not the obligation, at its own expense, to be represented in any such action action, at its own expense and by counsel of its own choice. In the event that such matter includes claims with respect to the Joint Patent Rights, the party responsible for prosecution and maintenance of the applicable Joint Patent Rights under Section 10.2(b) shall have the right to control the defense of such claims by counsel of its own choice and the parties shall share equally the costs with respect thereto. If Genentech Genetronics fails to proceed in a timely fashion with regard to such defensethe defense of any claims with respect to the Genetronics Technology, Curis Ethicon shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Genetronics shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement action, at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 10.4 in a manner that diminishes the rights or interests of the other Party hereunder party or obligates the other party to make any payment or take any action without the consent of such other party. If as a result of the manufacture, use or sale of the Drug Delivery System in any country of the Territory, Genetronics or Ethicon or any Affiliate of either of them is sued for patent infringement or threatened with such a lawsuit or other actions by a Third Party., Genetronics and Ethicon shall meet to analyze the infringement claim and avoidance of same. If it is necessary to obtain a license from such Third Party, Genetronics and Ethicon in negotiating such a license shall make every effort to minimize the license fees and/or royalty payable to such Third Party. If Ethicon shall be obligated to pay a license fee, royalty or both, then Genetronics shall elect within ten (10) days of the execution of the license with such Third Party to

Infringement of Third Party Rights. Each Party shall party will promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech Other than with respect to any claim for which Amgen has an indemnification obligation under Section 13.1(a), Isis shall have the first sole right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s Isis' activities under this Agreement at its own expense and by counsel of its own choice, and Curis Amgen shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed Isis shall not settle any such action in a timely fashion manner that would materially adversely affect Amgen, without Amgen's prior written consent. Other than with regard respect to such defenseany claim for which Isis has an indemnification obligation under Section 13.1(b), Curis Amgen shall have the sole right but not the obligation to control any such defense of any such claim involving alleged infringement of Third Party rights by Amgen's activities or with respect to any claim for which Amgen has an indemnification obligation under Section 13.1(a), at its own expense and by counsel of its own choice, and Genentech and, solely to the extent such claim is based on any act or failure to act of Isis, Isis shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Curis Amgen shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in settle any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder would materially adversely affect Isis without the consent of such PartyIsis' prior written consent.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by If a Third Party initiates a Proceeding against the JV or a Member Party alleging that the activity of either conduct of the Parties hereunder Project Activities infringes or may will infringe the intellectual property rights of such Third Party. Genentech ’s Patent or misappropriates or will misappropriate such Third Party’s trade secrets, (a) if such Proceeding arises as a direct result of TDF, FTC or both TDF and FTC being incorporated in the Combination Product, in each case without reference to EFV, then Gilead shall defend and hold the JV and BMS harmless from and against such Proceeding and any Losses resulting from such Proceeding, and shall have the first sole right but not the and obligation to control any defend such Proceeding or to settle it (e.g., by obtaining a license from such Third Party) at Gilead’s sole cost (which shall not be deemed a JV Expense or Authorized Expense), and BMS shall reasonably cooperate at Gilead’s request and expense in such defense of any and/or settlement; (b) if such claim involving alleged infringement arises as a direct result of Third Party rights by Genentech’s activities under this Agreement at its own expense EFV being incorporated in the Combination Product, in each case without reference to TDF or FTC, then BMS shall defend and by counsel of its own choicehold the JV and Gilead harmless from and against such Proceeding and any Losses resulting from such Proceeding, and Curis shall have the sole right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the and obligation to control any defend such Proceeding or to settle it (e.g., by obtaining a license from such Third Party) at BMS’ sole cost (which shall not be deemed a JV Expense or Authorized Expense), and Gilead shall reasonably cooperate at BMS’ request and expense in such defense of and/or settlement; and (c) in the event that neither clause (a) nor (b) applies, then the JEC shall determine whether to defend against such claim at its own expense and by counsel of its own choiceor to obtain a license from such Third Party, and Genentech if so, on what terms and conditions (which out-of-pocket costs, without any markup, shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choicedeemed Authorized Other Expenses), and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither which Member Party shall have take such actions on behalf of the right JV. The procedures set forth in Section 13.8 shall apply to settle any infringement action indemnification of Member Parties under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such Party11.4.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties parties hereunder infringes or may infringe the intellectual property rights of such Third Party. Genentech Allergan shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by GenentechAllergan’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis ACADIA shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Allergan fails to proceed in a timely fashion with regard to such defense, Curis ACADIA shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Allergan shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis ACADIA shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ ACADIA’s activities under this Agreement at its own expense and by counsel of its own choice, and Genentech Allergan shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis ACADIA fails to proceed in a timely fashion with regard to such defense, Genentech Allergan shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis ACADIA shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 9.5 in a manner that diminishes the rights or interests of the other Party hereunder party without the consent of such Partyparty.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties infringes or may infringe the intellectual property rights of such Third Party. Genentech Allergan shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by GenentechAllergan’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis ACADIA shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Allergan fails to proceed in a timely fashion with regard to such defense, Curis ACADIA shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Allergan shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Curis ACADIA shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ ACADIA’s activities under this Agreement at its own expense and by counsel of its own choice, and Genentech Allergan shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Curis ACADIA fails to proceed in a timely fashion with regard to such defense, Genentech Allergan shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis ACADIA shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 8.5 in a manner that diminishes the rights or interests of the other Party hereunder party without the consent of such Partyother party.

Infringement of Third Party Rights. (a) Each Party party shall promptly notify the other party in writing of any allegation by a Third Party that the activity of either ACADIA, Neuren, or any of the Parties hereunder their respective Affiliates or Third Party licensees or sub-licensees (or Sub-Licensees), as applicable, pursuant to this Agreement infringes or may infringe the intellectual property rights Intellectual Property Rights of such a Third Party. Genentech Subject to Neuren’s indemnification obligations, ACADIA shall have the first sole right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement of ACADIA or its Affiliates or Sub-Licensees at its own expense and by counsel of its own choice, and Curis Neuren shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails Subject to proceed in a timely fashion with regard to such defenseACADIA’s indemnification obligations, Curis Neuren shall have the sole right but not the obligation to control any such defense of any such claim involving alleged infringement of Third Party rights by activities of Neuren or its Affiliates or Third Party licensees or sub-licensees at its own expense and by counsel of its own choice, and Genentech ACADIA shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. (b) Neither Party shall enter into any settlement of any claim described in this clause 18.4 that negatively affects the other party’s rights or interests without such other party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Curis Each party shall have the first right but not the obligation to control any decline to defend or to tender defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choiceto the other party upon reasonable notice, and Genentech shall have including if the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis other party fails to proceed in agree to a timely fashion with regard to settlement that such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such Partyparty proposes.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity manufacture, Development, importation, use, marketing or sale of either of any Compound or Product in the Parties hereunder MTPC Territory infringes or may infringe the intellectual property rights of such a Third PartyParty (each an “Infringement Claim” ). Genentech The notice shall set forth the facts of the Infringement Claim in reasonable detail. MTPC shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis Neurocrine shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech MTPC fails to proceed defend against such action, or notifies Neurocrine that it does not intend to defend against such action, within (A) […***…] following the notice of alleged infringement or (B) […***…] before the time limit, if any, set forth in a timely fashion with regard the appropriate laws and regulations for the response to such defenseaction, Curis whichever comes first, Neurocrine shall have the right right, but not the obligation obligation, to control defend any such defense of such claim action at its own expense and by counsel of its own choice, and Genentech MTPC shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in MTPC enters into a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense settlement of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action with the applicable Third Party, and such action relates to a claim that Neurocrine Technology infringes the intellectual property rights of such Third Party, that provides for royalty payments to such Third Party by counsel of its own choice. Neither Party MTPC, then MTPC shall have the right to settle credit […***…] of such payments against royalties payable to Neurocrine, as and to the extent set forth in Section 8.3. Notwithstanding the foregoing, any infringement action under actions subject to Section 14.1 will be governed by Section 14.1 and not by this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such Party10.5.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation made by a Third Party that the activity of either of the Parties hereunder pursuant to this Agreement, including without limitation use of the Trademark by NOVACEA, infringes or may infringe the intellectual property rights of such Third PartyParty in the NOVACEA Territory. Genentech XXXXXX XXXXX shall initially have the first sole right but not the obligation to control any the defense of to any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement allegation, at its own expense and by counsel of its own choice, and Curis NOVACEA shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech XXXXXX XXXXX fails to proceed in a timely fashion with regard to such defense, Curis NOVACEA shall have the right but not the obligation to control any such the defense of such claim allegation at its own expense and by counsel of its own choice, and Genentech ; XXXXXX XXXXX shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any trademark infringement action litigation under this Section 10.5 in a manner that diminishes 3.3.2 relating to the rights or interests use of the other Party hereunder Trademark in the NOVACEA Territory without the prior written consent of such other Party. Subject to Section 5.6, XXXXXX XXXXX will indemnify, defend, and hold NOVACEA, its Affiliates and permitted sublicensees harmless from and against any and all liabilities, damages, losses, costs or expenses, including reasonable attorneys’ fees and other reasonable out-of-pocket expenses incurred in connection with such litigation or with dispute resolution (each, a “Liability”), to which any of them may become subject in connection with a claim, demand, suit or proceeding (“Action”) for trademark infringement arising out of the use by NOVACEA in the NOVACEA Territory of the [*] Trademark in accordance with this Agreement, provided that NOVACEA gives prompt notice to [*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. XXXXXX XXXXX of any such Action and provides good faith cooperation in the defense of such Action. With respect to a Trademark other than [*], the provisions of the foregoing sentence are applicable, except that reimbursement to NOVACEA for Liabilities shall be fifty percent (50%).

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech Emisphere shall have the first sole right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by GenentechEmisphere’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis Genta shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. Subject to the following sentence, Genta shall have the sole right but not to control any defense of any such claim involving alleged infringement of Third Party rights by Genta’s activities at its own expense and by counsel of its own choice, and Emisphere shall have the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails any Third Party claim alleges that the manufacture, use, sale, offer for sale or import of the Product infringes such Third Party’s patent rights solely covering the composition of matter or method of using or * denotes material omitted pursuant to proceed in a timely fashion Confidential Treatment Request and filed separately with regard to such defensethe Securities and Exchange Commission. manufacturing any Program Carrier(s), Curis then Emisphere shall have the first right but not the obligation to control any such defense of any such claim at its own expense and by counsel of its own choice, and Genentech Genta shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but ; provided that if Emisphere does not the obligation to control any defense of defend against any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement claim, then Genta may assume such defense at its own expense and by using counsel of its own choice, in which case Genta shall keep Emisphere fully informed with regard to the defense of such Third Party claim, and Genentech Genta shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 9.5 in a manner that diminishes the rights or interests of the other Party hereunder party without the written consent of such Partyother party (which shall not be unreasonably withheld).

Infringement of Third Party Rights. (a) Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties or their Affiliates, licensees or sublicensees pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech . (b) Unless and until Organon exercises the Organon Option and subject to Section 12.5(c), Organon shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement alleging that the sale of Approved Products in the Field infringes any Third Party rights by Genentech’s activities under this Agreement rights, at its own expense and by counsel of its own choice, and Curis Cypress shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Organon fails to proceed in a timely fashion with regard to such defense, Curis Cypress shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Organon shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defenseOrganon has exercised the Organon Option, Genentech Cypress shall have the sole right but not the obligation to control any such defense of any such claim alleging that the sale of Approved Products in the Field infringes any Third Party rights, at its own expense and by counsel of its own choice, and Curis Organon shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. . (c) In any Specific Country with respect to which Organon has granted Cypress a license under Section 7.2(a), Cypress shall have the first right to control any defense of any such claim alleging that the sale of Approved Products in such Specific Country infringes any Third Party rights in such Specific Country, at its own expense and by counsel of its own choice, and Organon shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. (d) Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 12.5 relating to the manufacture or commercialization of Development Candidates or Approved Products in a any manner that diminishes which could negatively and materially affect the rights or interests liability of the other Party hereunder party without the consent of such Partyother party.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech Emisphere shall have the first sole right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by GenentechEmisphere’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis Genta shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. Subject to the following sentence, Genta shall have the sole right but not to control any defense of any such claim involving alleged infringement of Third Party rights by Genta’s activities at its own expense and by counsel of its own choice, and Emisphere shall have the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to any Third Party claim alleges that the manufacture, use, sale, offer for sale or import of the Product infringes such defenseThird Party’s patent rights solely covering the composition of matter or method of using or manufacturing any Program Carrier(s), Curis then Emisphere shall have the first right but not the obligation to control any such defense of any such claim at its own expense and by counsel of its own choice, and Genentech Genta shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but ; provided that if Emisphere does not the obligation to control any defense of defend against any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement claim, then Genta may assume such defense at its own expense and by using counsel of its own choice, in which case Genta shall keep Emisphere fully informed with regard to the defense of such Third Party claim, and Genentech Genta shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 9.5 in a manner that diminishes the rights or interests of the other Party hereunder party without the written consent of such Partyother party (which shall not be unreasonably withheld).

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties parties hereunder infringes or may infringe the intellectual property rights of such Third Party. Genentech Allergan shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s Allergan's activities under this Agreement at its own expense and by counsel of its own choice, and Curis ACADIA shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Allergan fails to proceed in a timely fashion with regard to such defense, Curis ACADIA shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Allergan shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis ACADIA shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ ACADIA's activities under this Agreement at its own expense and by counsel of its own choice, and Genentech Allergan shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis ACADIA fails to proceed in a timely fashion with regard to such defense, Genentech Allergan shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis ACADIA shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such Party.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech Cypress shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement alleging that the sale of Licensed Products in the Field infringes any Third Party rights by Genentech’s activities under this Agreement in the Licensed Territory, at its own expense and by counsel of its own choice, and Curis Pierre Fabre shall have the right, at its own expense, to be represexxxx xx xxx such action by counsel of its own choice. If Cypress fails to proceed in a timely fashion with regard to such defense, Pierre Fabre shall have the right but not to control any such defense of sucx xxxxx xx xts own expense and by counsel of its own choice, and Cypress shall have the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Pierre Fabre shall have the first right to control any defense of anx xxxx xxxxx alleging that the manufacture of API or Licensed Products infringes any Third Party rights in the Licensed Territory, at its own expense and by counsel of its own choice, and Cypress shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Pierre Fabre fails to proceed in a timely fashion with regard to such defensesucx xxxxxxx, Curis Xypress shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Pierre Fabre shall have the right but not the obligationright, at its own expense, to be represented in any represexxxx xx xxx such action by counsel of its own choice. Curis Pierre Fabre shall have the first sole right but not the obligation to control any defense of any such claim involving alleged xxxx xxxxx alleging infringement of any Third Party rights by Curis’ activities under this Agreement outside the Licensed Territory, at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 11.4 relating to the manufacture or commercialization of Licensed Products in a manner that diminishes the rights or interests of the other Party hereunder Licensed Territory without the consent of such Partyother party.

Infringement of Third Party Rights. Each Party Celgene and Novartis shall promptly notify the other in writing of any allegation by a Third Party that the activity of exercise by either of the Parties of any license granted hereunder infringes or may infringe the intellectual property rights of such Third Party. Genentech Celgene shall have the first right but not to control the obligation defense of any claims with respect to the Celgene Patent Rights at its own expense and by counsel of its own choice. Novartis shall have the right to control the defense of any claims with respect to the Novartis Patent Rights at its own expense and by counsel of its own choice. In the event that such matter includes claims with respect to the Joint Patent Rights, the Party responsible for prosecution and maintenance of the applicable Joint Patent Rights under Section 9.2(b) shall have the right to control the defense of such claims by counsel of its own choice and the Parties shall share equally the costs with respect thereto. If Celgene fails to proceed in a timely fashion with regard to the defense of any claims with respect to the Celgene Patent Rights that are likely to have a material adverse effect on any Product being developed or commercialized by Novartis pursuant to a license granted hereunder, Novartis shall have the right to control any such defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis Celgene shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Novartis fails to proceed in a timely fashion with regard to such defensethe defense of any claims with respect to the Novartis Patent Rights that are likely to have a material adverse effect on any product being developed or commercialized by Celgene pursuant to a license granted hereunder, Curis Celgene shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Novartis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Curis the responsible Party with respect to any Joint Patent Rights fails to proceed in a timely fashion with regard to such defensethe defense of any claims with respect to the Joint Patent Rights, Genentech the other Party shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis the first Party shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any patent infringement action litigation under this Section 10.5 9.4 in a manner that diminishes the rights or interests of the other Party hereunder or obligates the other Party to make any payment or take any action without the prior written consent of such other Party.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity manufacture, Development, importation, use, marketing or sale of either of any Compound or Product in the Parties hereunder MTPC Territory infringes or may infringe the intellectual property rights of such a Third PartyParty (each an “Infringement Claim”). Genentech The notice shall set forth the facts of the Infringement Claim in reasonable detail. MTPC shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis Neurocrine shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech MTPC fails to proceed defend against such action, or notifies Neurocrine that it does not intend to defend against such action, within (A) […***…] following the notice of alleged infringement or (B) […***…] before the time limit, if any, set forth in a timely fashion with regard the appropriate laws and regulations for the response to such defenseaction, Curis whichever comes first, Neurocrine shall have the right right, but not the obligation obligation, to control defend any such defense of such claim action at its own expense and by counsel of its own choice, and Genentech MTPC shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in MTPC enters into a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense settlement of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action with the applicable Third Party, and such action relates to a claim that Neurocrine Technology infringes the intellectual property rights of such Third Party, that provides for royalty payments to such Third Party by counsel of its own choice. Neither Party MTPC, then MTPC shall have the right to settle credit […***…] of such payments against royalties payable to Neurocrine, as and to the extent set forth in Section 8.3. Notwithstanding the foregoing, any infringement action under actions subject to Section 14.1 will be governed by Section 14.1 and not by this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such Party10.5.

Infringement of Third Party Rights. Each Party Genetronics and Ethicon shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties in connection with this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech Genetronics shall have the first right but not the obligation to control any the defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement claims with respect to the Genetronics Technology, at its own expense and by counsel of its own choice, and Curis Ethicon shall have the right but not the obligation, at its own expense, to be represented in any such action action, at its own expense and by counsel of its own choice. In the event that such matter includes claims with respect to the Joint Patent Rights, the party responsible for prosecution and maintenance of the applicable Joint Patent Rights under Section 10.2(b) shall have the right to control the defense of such claims by counsel of its own choice and the parties shall share equally the costs with respect thereto. If Genentech Genetronics fails to proceed in a timely fashion with regard to such defensethe defense of any claims with respect to the Genetronics Technology, Curis Ethicon shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Genetronics shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement action, at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 10.4 in a manner that diminishes the rights or interests of the other Party hereunder party or obligates the other party to make any payment or take any action without the consent of such other party. If as a result of the manufacture, use or sale of the Drug Delivery System in any country of the Territory, Genetronics or Ethicon or any Affiliate of either of them is sued for patent infringement or threatened with such a lawsuit or other actions by a Third Party., Genetronics and Ethicon shall meet to analyze the infringement claim and avoidance of same. If it is necessary to obtain a license from such Third Party, Genetronics and Ethicon in negotiating such a license shall make every effort to minimize the license fees and/or royalty payable to such Third Party. If Ethicon shall be obligated to pay a license fee, royalty or both, then Genetronics shall elect within ten (10) days of the execution of the license with such Third Party to (i) pay all fees, royalties and expenses associated with obtaining and maintaining the license, or (ii) to having the royalties payable to it pursuant to Section 6.3 hereof or the Purchase Price

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties or their Affiliates, licensees or sub-licensees pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech Cypress shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement alleging that the sale of Licensed Products in the Field infringes any Third Party rights by Genentech’s activities under this Agreement in the Licensed Territory, at its own expense and by counsel of its own choice, and Curis Xxxxxx Xxxxx shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Cypress fails to proceed in a timely fashion with regard to such defense, Curis Xxxxxx Xxxxx shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Cypress shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Curis Xxxxxx Xxxxx shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement alleging that the manufacture of API or Licensed Products infringes any Third Party rights by Curis’ activities under in the Licensed Territory (but not if such claim also alleges that the sale of Licensed Product in the Field infringes any Third Party rights in the Licensed Territory, for which Cypress shall have the first right to control any defense, as provided in this Agreement Section 11.6), at its own expense and by counsel of its own choice, and Genentech Cypress shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Curis Xxxxxx Xxxxx fails to proceed in a timely fashion with regard to such defense, Genentech Cypress shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis Xxxxxx Xxxxx shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Xxxxxx Xxxxx shall have the sole right to control any defense of any such claim alleging infringement of any Third Party rights outside the Licensed Territory, at its own expense and by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 11.6 relating to the manufacture or commercialization of Licensed Products in a manner that diminishes the rights or interests of the other Party hereunder Licensed Territory without the consent of such Partyother party.

Infringement of Third Party Rights. Each Party Hybridon shall promptly notify the other advise Genzyme in writing of any allegation by notice or claim of any infringement and of the commencement of any suit or action for infringement of a Third Party patent made or brought against Hybridon, its Affiliates or Collaborative Partners and based upon the manufacture, use, import and export, and sale or offer to sell of Licensed Products or the practice of Licensed Methods pursuant to the sublicense granted under the Agreement. In such event, Hybridon shall have at all times the right to immediately cease commercialization and/or the right either to: (i) request that the activity of either of the Parties hereunder infringes or may infringe the intellectual property rights of Genzyme enter into negotiations with such Third PartyParty to obtain rights for Hybridon under the Third Party patent; (ii) request that Genzyme defend such claim, suit or action at Genzyme's expense; or (iii) terminate this Agreement. Genentech Genzyme shall have not be obligated to enter into negotiations with such Third Party to obtain rights for Hybridon under the first right but not Third Party patent nor obligated to defend such claim, suit or action. If Genzyme, in its sole discretion, elects to enter into negotiations with such Third Party to obtain rights for Hybridon under the obligation Third Party patent or if Genzyme, in its sole discretion, elects to control any undertake at its own expense the defense of any such claim involving alleged infringement claim, suit or action, Hybridon shall render Genzyme all reasonable assistance that may be required by Genzyme in the negotiations or in the defense of Third Party rights by Genentech’s activities under this Agreement at its own expense and such claim, suit or action. Genzyme has the primary right to control the defense of any such claim, suit or action by counsel of its own choice, and Curis Hybridon shall have the right but not the obligationright, at its own expense, to be represented in any such claim, suit or action in respect of which Hybridon is a defendant by counsel of its own choice. If Genentech fails The Parties agree to proceed cooperate reasonably in a timely fashion with regard to any such defense. Notwithstanding the foregoing, Curis if Genzyme has not within ninety (90) days (or such lesser period of time as is necessary to avoid entry of a default judgment against Genzyme or Hybridon) from the date of receipt of a request from Hybridon, either entered into negotiations with such Third Party to obtain rights for Hybridon under the Third Party patent or initiated legal action to defend such claim, suit or action, then Hybridon shall have the right but not the obligation right, upon written notice to control any Genzyme, to enter such defense negotiations or defend such claim, suit or action. Hybridon shall be entitled to deduct all reasonable out-of-pocket costs and expenses, including legal fees, incurred in entering into such negotiations or defending such claim, suit or action from royalties due Genzyme after commencement of such claim at its own expense action and until such expenses are fully recouped by counsel of its own choice, Hybridon. Confidential materials omitted and Genentech shall have filed separately with the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choiceSecurities and Exchange Commission. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such PartyAsterisks denote omissions.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity Manufacture, use or sale of either of the Parties hereunder a Licensed Product infringes or misappropriate or may infringe or misappropriate the intellectual property rights of such Third Party. Genentech Except to the extent subject to a Party’s indemnification obligations, as provided in Article 11 (Indemnification) or in this Section 9.5 (Infringement of Third Party Rights), in which case the provisions of Section 11.3 (Procedure) shall have control, (a) Elanco has the first right but not to control any defense of any such claim involving alleged infringement or misappropriation of Third Party rights by Elanco’s activities at its own expense and by counsel of its own choice, and KindredBio may, at its own expense, be represented in any such action by counsel of its own choice if such intellectual property rights pertain to the obligation Territory, and (b) KindredBio has the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by GenentechKindredBio’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligationElanco may, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails With respect to proceed any Third Party claim of intellectual property infringement or misappropriation of a Third Party’s Intellectual Property Rights which arises from the use by Elanco of the Licensed Technology within the scope of the license grant as permitted under this Agreement and in a timely fashion compliance with regard to the terms of this Agreement, then if KindredBio knows (or should have known, following due inquiry) of such defenseinfringement or misappropriation, Curis KindredBio shall have the right but not the obligation to control any also reimburse Elanco for its reasonable costs and expenses directly arising from such defense and shall otherwise indemnify Elanco in respect of such claim at its own expense and by counsel claim. To the extent that Third Party claims of its own choiceinfringement or misappropriation arise from Elanco’s uses of or modification of the Licensed Technology outside of the uses permitted under this Agreement, KindredBio shall not be obligated to reimburse or indemnify Elanco, and Genentech Elanco shall have the right but not the obligation, at reimburse KindredBio for its own expense, to be represented reasonable costs and expense arising from such defense and shall otherwise indemnify and hold KindredBio harmless in respect of such claims. Neither Party may settle any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged patent infringement litigation under this Section 9.5 (Infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 Rights) in a manner that materially diminishes the rights or interests of the other Party in the Licensed Technology (if such other Party is KindredBio) and the rights and interests under the license grant hereunder (if such other Party is Elanco) without the written consent of such the other Party.

Infringement of Third Party Rights. Each (a) If the activities relating to the Combined Therapy Clinical Trial become the subject of a claim of infringement of a patent, copyright or other proprietary right by a Third Party shall anywhere in the world, the Party first having notice of the claim will promptly notify the other in writing Party and, without regard to which Party is charged with said infringement and the venue of any allegation by a Third Party that the activity of either of such claim, the Parties hereunder infringes or may infringe will promptly confer to discuss the intellectual property rights of claim. (b) If both Parties are charged with infringement pursuant to a claim described in Section 5.4(a), each Party will have the right to defend itself against such Third Partyclaim and the Parties will discuss in good faith defending such claim jointly. Genentech shall If only one Party is charged with infringement, such Party will have the first right but not the obligation to control any defense of any defend such claim. If the charged Party does not commence actions to defend such claim involving alleged infringement of Third within [***] calendar days after request by the other Party rights by Genentech’s activities under this Agreement at its own expense and by counsel of its own choiceto do so, and Curis shall then the other Party will have the right right, but not the obligation, to defend any such claim to the extent such claim pertains to the other Party’s Compound. In any event, the non-defending Party will reasonably cooperate with the Party conducting the defense of the claim and will have the right to participate with separate counsel at its own expense, to be represented and the defending Party will consider comments and suggestions on strategy for defending the action by the non-defending Party in good faith. The Party defending the claim will bear the cost and expenses of the defense of any such action by counsel of its own choiceThird Party infringement claim and will have sole rights to any recovery. If Genentech fails to proceed in a timely fashion with regard to such defensethe Parties jointly defend the claim, Curis shall have each Party will bear [***] of any costs and expenses of the right but not the obligation to control defense of any such Third Party infringement claim; provided, however, that notwithstanding the foregoing, if the claim relates solely to one Party’s Compound, such Party will bear [***] of the costs and expenses of the defense of such claim at its own expense and by counsel of its own choice, and Genentech shall will have the right sole right, but not the obligation, at its own expenseto defend, to be represented in settle and otherwise handle the disposition of such claim. Neither Party will enter into any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ settlement concerning activities under this Agreement at its own expense and by counsel or the Combined Therapy that affects the other Party’s rights under this Agreement or imposes any obligations on the other Party, including any admissions of its own choicewrongdoing on behalf of the other Party, and Genentech shall have the right but without such other Party’s prior written consent, not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in unreasonably withheld, conditioned or delayed, except that a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to may settle any infringement action under this Section 10.5 in a manner claim that diminishes solely relates to its Compound without the rights or interests consent of the other Party hereunder without the consent of as long as such other Party’s rights under this Agreement are not adversely impacted (in which case, it will obtain such other Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed).

Infringement of Third Party Rights. Each Party shall promptly notify the other Party in writing if it becomes aware of any allegation by a Third Party that the activity of either of the Parties hereunder or their Affiliates or sublicensee or subcontractor in connection with the Development or Commercialization of any Product infringes the issued patent rights (or may would infringe the intellectual property claims, if issued, of a pending patent application) of any Third Party in the Territory (“Patent Infringement Claims”). The Party, directly or through an Affiliates or sublicensee or subcontractor, alleged to have infringed the patent rights of such a Third Party. Genentech Party shall have the first sole right but to defend such alleged infringement. In the event of a litigation in accordance with this Section 8.3, the Party not controlling such litigation shall use its reasonable efforts to cooperate at the obligation to control any defense controlling Party’s cost and expense (the costs and expenses of any the non-controlling Party in connection with such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement at its own expense litigation, including the investigation and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expenseanalysis thereof, to be represented reimbursed to the non-controlling Party on an as-incurred basis), including: (a) if required for the purposes of any cross claim, or counterclaim, the furnishing of a power of attorney to bring suit in any the other Party’s name and/or being named as a party in such suit and as necessary, becoming a client of the other Party’s legal counsel and agreeing that such legal counsel will act solely under the instruction of the other Party and will sign a waiver with such legal counsel to that effect and the Party bringing the action by shall keep the other Party and/or their designated legal counsel of its own choice. If Genentech fails reasonably informed as to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such defense progress of such claim at its own expense action; and (b) providing reasonable assistance to the controlling Party in connection therewith (including in connection with investigation and analysis thereof by the non-controlling Party’s legal counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choiceadvisors). Neither Party shall have the right to settle enter into any infringement action settlement of any actual or threatened litigation under this Section 10.5 in 8.3 where the Product is directly named, without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed; provided that the Party whose actions have allegedly infringed the issued patents rights of a manner that diminishes Third Party shall have the rights or interests unilateral right to enter into any such settlement without the prior written consent of the other Party hereunder without to the consent extent such litigation or threatened litigation involves in any manner such Party’s owned Intellectual Property and such settlement would not be reasonably expected to adversely affect the other Party’s rights or benefits with respect to such Product or its Commercialization of such Product, in which case, the other Party’s prior written consent shall be required which consent shall not be unreasonably withheld.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech shall BioAlliance shall, as a named party to the infringement allegation, have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities of BioAlliance or its Affiliates or Sublicensees under this Agreement at its own expense and BioAlliance’s expense, subject to Section 5.3(c), by counsel of its own BioAlliance’s choice; provided, and Curis however, that NovaDel shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis NovaDel shall have the right but not the obligation to control any such defense of any such claim involving alleged infringement of Third Party rights by NovaDel’s activities under this Agreement at its own NovaDel’s expense and by counsel of its own NovaDel’s choice; provided, and Genentech however, that BioAlliance shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have Notwithstanding the first right but not the obligation to control foregoing, any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choiceto the extent there is an *** Portion for which confidential treatment requested. If Curis fails allegation or claim that a NovaDel Patent is invalid shall be subject to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choiceSection 7.4. Neither Party party shall have the right to settle enter into any infringement settlement or compromise with respect to any action under this Section 10.5 7.4 in a manner that diminishes the rights or interests of the other Party hereunder party without the such other party’s prior consent, which consent of such Partyshall not be unreasonably withheld.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech Elitra shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s Elitra's activities under this Agreement at its own expense and by counsel of its own choice, and Curis LG Chem shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech Elitra fails to proceed in a timely fashion with regard to such defense, Curis LG Chem shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech Elitra shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Curis LG Chem shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ LG Chem's activities under this Agreement at its own expense and by counsel of its own choice, and Genentech Elitra shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Curis LG Chem fails to proceed in a timely fashion with regard to such defense, Genentech Elitra shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis LG Chem shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.5 9.5 in a manner that diminishes the rights or interests of the other Party hereunder party without the consent of such Partyother party.

Infringement of Third Party Rights. (a) Each Party party shall promptly notify the other party in writing of any allegation by a Third Party that the activity of either party, or any of the Parties hereunder their respective Affiliates or Third Party licensees or sub-licensees (or Sub-Licensees), as applicable, pursuant to this Agreement infringes or may infringe the intellectual property rights Intellectual Property Rights of such a Third Party. Genentech Subject to Neuren’s indemnification obligations, ACADIA shall have the first sole right but not the obligation to control any defense defence of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement of ACADIA or its Affiliates or Sub-Licensees at its own expense and by counsel of its own choice, and Curis Neuren shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails Subject to proceed in a timely fashion with regard to such defenseACADIA’s indemnification obligations, Curis Neuren shall have the sole right but not the obligation to control any such defense defence of any such claim involving alleged infringement of Third Party rights by activities of Neuren or its Affiliates or Third Party licensees or sub-licensees at its own expense and by counsel of its own choice, and Genentech ACADIA shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Curis . (b) Neither Party shall have the first right but not the obligation to control enter into any defense settlement of any claim described in this clause 21.4 that negatively affects the other party’s rights or interests without such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choiceother party’s written consent, and Genentech which consent shall have the right but not the obligationbe unreasonably withheld, at its own expense, to be represented in any such action by counsel of its own choiceconditioned or delayed. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party Each party shall have the right to settle decline to defend or to tender defence of any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of such claim to the other Party hereunder without party upon reasonable notice, including if the consent of other party fails to agree to a settlement that such Partyparty proposes.

Infringement of Third Party Rights. Each Party shall promptly notify In the other in writing of any allegation by event that a Third Party files an action against a Party, its Affiliates, distributors or sublicensees alleging that the activity of either of the Parties hereunder infringes such Party’s or may infringe the intellectual property rights of such Third Party. Genentech shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s its Affiliates’, distributors’ or sublicensees’ activities under this Agreement at infringe such Third Party’s patent or other intellectual property rights, such Party shall give written notice to the other Party, and the Parties will consult and cooperate on the best course of action. If the alleged infringing process, method or composition is claimed under the Aradigm Technology and the Lung Rx Technology, in the Territory, the Parties shall consult and cooperate to decide which Party shall control the defense of such suit. If the alleged infringing process, method or composition is claimed under the Lung Rx Technology, in the Territory, Lung Rx shall have the right to control the defense of such suit. If the alleged infringing process, method or composition is claimed under the Aradigm Technology, in the Territory, Aradigm shall have the right to control the defense of such suit. Each Party shall pay its own expense and expenses, have the right to be represented by advisory counsel of its own choiceselection, and Curis shall cooperate fully in the defense of such suit and furnish to the other all evidence and assistance in its control. If one Party does not elect within thirty (30) days after such notice to control the defense of a suit, the other may undertake such control at its own expense, and the non-controlling Party shall then have the right but not the obligationto be represented by advisory counsel of its own selection, at its own expense, to be represented and shall cooperate fully in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such defense of such claim at suit and furnish to the controlling Party all evidence and assistance in its own expense and by counsel of its own choice, and Genentech shall have control. The Party controlling the right but suit may not settle the obligation, at its own expense, suit or otherwise consent to be represented an adverse judgment in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner suit that diminishes the rights or interests of the other non-controlling Party hereunder without the express written consent of such the non-controlling Party. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 8.6 shall be paid by the Party which controls the litigation, subject to the other Party’s indemnification obligations in accordance with Article 12 below, if any.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation made by a Third Party that the activity of either of the Parties hereunder pursuant to this Agreement, including without limitation use of the Trademark by NOVACEA, infringes or may infringe the intellectual property rights of such Third PartyParty in the NOVACEA Territory. Genentech XXXXXX XXXXX shall initially have the first sole right but not the obligation to control any the defense of to any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement allegation, at its own expense and by counsel of its own choice, and Curis NOVACEA shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech XXXXXX XXXXX fails to proceed in a timely fashion with regard to such defense, Curis NOVACEA shall have the right but not the obligation to control any such the defense of such claim allegation at its own expense and by counsel of its own choice, and Genentech ; XXXXXX XXXXX shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligationright, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any trademark infringement action litigation under this Section 10.5 in a manner that diminishes 3.3.2 relating to the rights or interests use of the other Party hereunder Trademark in the NOVACEA Territory without the prior written consent of such other Party. Subject to Section 5.6, XXXXXX XXXXX will indemnify, defend, and hold NOVACEA, its Affiliates and permitted sublicensees harmless from and against any and all liabilities, damages, losses, costs or expenses, including reasonable attorneys’ fees and other reasonable out-of-pocket expenses incurred in connection with such litigation or with dispute resolution (each, a “Liability”), to which any of them may become subject in connection with a claim, demand, suit or proceeding (“Action”) for trademark infringement arising out of the use by NOVACEA in the NOVACEA Territory of the [*] Trademark in accordance with this Agreement, provided that NOVACEA gives prompt notice to XXXXXX XXXXX of any such Action and provides good faith cooperation in the defense of such Action. With respect to a Trademark other than [*], the provisions of the foregoing sentence are applicable, except that reimbursement to NOVACEA for Liabilities shall be fifty percent (50%).

Infringement of Third Party Rights. Each Party shall promptly notify the other Party in writing if it becomes aware of any allegation by a Third Party that the activity of either of the Parties hereunder or their Affiliates or sublicensee or subcontractor in connection with the Development or Commercialization of any Product infringes the issued patent rights (or may would infringe the intellectual property claims, if issued, of a pending patent application) of any Third Party in the Territory (“Patent Infringement Claims”). The Party, directly or through an Affiliates or sublicensee or subcontractor, alleged to have infringed the patent rights of such a Third Party. Genentech Party shall have the first sole right but to defend such alleged infringement. In the event of a litigation in accordance with this Section 8.3, the Party not controlling such litigation shall use its reasonable efforts to cooperate at the obligation to control any defense controlling Party’s cost and expense (the costs and expenses of any the non-controlling Party in connection with such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement at its own expense litigation, including the investigation and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expenseanalysis thereof, to be represented reimbursed to the non-controlling Party on an as-incurred basis), including: (a) if required for the purposes of any cross claim or counterclaim, the furnishing of a power of attorney to bring suit in any the other Party’s name and/or being named as a party in such suit and as necessary, becoming a client of the other Party’s legal counsel and agreeing that such legal counsel will act solely under the instruction of the other Party and will sign a waiver with such legal counsel to that effect and the Party bringing the action by shall keep the other Party and/or their designated legal counsel of its own choice. If Genentech fails reasonably informed as to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such defense progress of such claim at its own expense action; and (b) providing reasonable assistance to the controlling Party in connection therewith (including in connection with investigation and analysis thereof by the non-controlling Party’s legal counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choiceadvisors). Neither Party shall have the right to settle enter into any infringement action settlement of any actual or threatened litigation under this Section 10.5 in 8.3 where the Product is directly named, without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed; provided that the Party whose actions have allegedly infringed the issued patents rights of a manner that diminishes Third Party shall have the rights or interests unilateral right to enter into any such settlement without the prior written consent of the other Party hereunder without to the consent extent such litigation or threatened litigation involves in any manner such Party’s owned Intellectual Property and such settlement would not be reasonably expected to adversely affect the other Party’s rights or benefits with respect to such Product or its Commercialization of such Product, in which case, the other Party’s prior written consent shall be required which consent shall not be unreasonably withheld.

Infringement of Third Party Rights. (a) Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder pursuant to this Agreement or the Supply Agreement infringes or may infringe the intellectual property rights of such Third Party. Genentech . (b) PEM shall have the first sole right (but not the obligation obligation), as between PEM, on the one hand, and PAC, on the other hand, to bring and control any defense of any such claim involving alleged infringement of Third Party rights by GenentechPEM’s activities under pursuant to this Agreement or the Master Supply and Purchasing Agreement at its own expense and by counsel of its own choice; provided, and Curis however, that such expenses shall be considered Allowable Expenses for the purposes of EXHIBIT B. PAC shall have the right but not the obligationright, at its own expense, to be represented in any such action defense by counsel of its own choice. If Genentech fails PEM shall solely bear all of its costs related to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such defense of such claim at its own expense an infringement action as well as any and all damages awarded to the Third Party. Should PEM conclude it is necessary to obtain a license in the intellectual property rights of the Third Party for PEM, to conduct activities for which it is reasonable as contemplated by counsel of its own choicethis Agreement or the Master Supply and Purchasing Agreement, PEM shall pay all costs and Genentech shall have the right but not the obligationroyalties necessary to obtain such license and maintain such license, at its own expense, to be represented in any such action by counsel of its own choice. Curis during the Term. (c) PAC shall have the first sole right (but not the obligation obligation), as between PAC, on the one hand, and PEM, on the other hand, to bring and control any defense of any such claim involving alleged infringement of Third Party rights by CurisPAC’s and its Affiliates’ and sublicensees’ activities under pursuant to this Agreement or the Master Supply and Purchasing Agreement at its own expense and by counsel of its own choice, and Genentech . PEM shall have the right but not the obligation, at its own expense, to be represented in any such action defense by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, choice at its own expense; provided, however, that such expenses shall be considered Allowable Expenses for purposes of EXHIBIT B. PAC shall bear all of its costs related to be represented in the defense of such an infringement action as well as any and all damages awarded to the Third Party; provided, however, that such costs and damages (but excluding any such action damages for willful infringement or willful misconduct by counsel PAC or its Affiliates or sublicensees and any litigation sanctions awarded against PAC or its Affiliates (collectively, “Special Damages”)) shall be considered Allowable Expenses for purposes of its own choice. Neither Party shall have EXHIBIT B. Should PAC conclude it is necessary to obtain a license in the right to settle any infringement action under this Section 10.5 in a manner that diminishes the intellectual property rights or interests of the other Third Party hereunder without for PAC or its Affiliates or sublicensees to conduct activities for which it is responsible as contemplated by this Agreement or the consent of Master Supply and Purchasing Agreement, PAC shall pay all costs and royalties necessary to obtain such Partylicense and maintain such license, as an Allowable Expense, during the Term.

Infringement of Third Party Rights. Each If Xxxxxxx or its Affiliates and Catalyst become the subject of a Third Party’s claim or assertion of infringement of a Patent in the Territory that is owned or controlled by such Third Party shall due to Catalyst’s manufacture, use, sale or importation of Licensed Product in the Territory, then Xxxxxxx will promptly notify the other Catalyst within two Business Days after receipt of such claim or assertion and will include in writing such notice a copy of any allegation by a Third Party that summons or complaint (or the activity of either of equivalent thereof) received regarding the Parties hereunder infringes or may infringe foregoing. Catalyst will be solely responsible for the intellectual property rights of such Third Party. Genentech shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement claims brought against Xxxxxxx or its Affiliate and Catalyst (as joint defendants) in the Territory, at Catalyst’s cost and expense; provided that Catalyst will not agree to any settlement, consent to judgment, or other voluntary final disposition in connection with such defense action without prior written consent of Third Party rights by Genentech’s activities under this Agreement at its own expense and by counsel Xxxxxxx (which shall not be unreasonably withheld, conditioned or delayed) if such settlement, consent to judgment, or other voluntary final disposition would (A) result in the admission of any liability or fault on behalf of Xxxxxxx, (B) result in or impose any payment obligations upon Xxxxxxx or any of its own choiceAffiliates, or (C) subject Xxxxxxx or any of its Affiliates to an injunction outside the Territory, or otherwise limit the ability of Xxxxxxx or any of its Affiliates to take any actions or refrain from taking any actions outside the Territory, with respect to a Licensed Product, the Licensed IP or the Compound. Catalyst will keep Xxxxxxx informed on the status of such defense action, and Curis shall Xxxxxxx will have the right right, but not the obligation, to participate and be separately represented in such defense action at its sole option and at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such Party.