Common use of Invalidity or Unenforceability Defences or Actions Clause in Contracts

Invalidity or Unenforceability Defences or Actions. Each Party shall promptly notify the other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the AstraZeneca Patents by a Third Party and of which such Party becomes aware. As between the Parties, (i) Licensee shall have the first right, but not the obligation, to defend and control the defence of the validity and enforceability of the AstraZeneca Patents at its sole cost. If Licensee declines to defend any such invalidity claim with respect to the AstraZeneca Patent, AstraZeneca may defend such invalidity claim at its own cost and expense. For purposes of this Section 5.5, the Party defending any action pursuant to the foregoing sentence with respect to a Patent shall be the “Controlling Party.” If the Controlling Party or its designee elects not to defend or control the defence of the applicable Patents in a suit brought in the Territory or otherwise fails to initiate and maintain the defence of any such claim, suit or proceeding, then subject to any rights of Third Parties under any applicable Third Party agreements existing as of the Effective Date, the non-Controlling Party may conduct and control the defence of any such claim, suit or proceeding at its sole cost and expense. The non-Controlling Party in such an action shall, and shall cause its Affiliates to, assist and cooperate with the Controlling Party, as such Controlling Party may reasonably request from time to time in connection with its activities set forth in this Section, including where necessary, furnishing a power of attorney solely for such purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the Controlling Party shall reimburse the non-Controlling Party for its reasonable and verifiable costs and expenses incurred in connection therewith. In connection with any activities with respect to a defence, claim or counterclaim relating to the AstraZeneca Patents pursuant to this Section 5.5, the Controlling Party shall (x) consult with the non-Controlling Party as to the strategy for such activities, (y) consider in good faith any comments from the non-Controlling Party and (z) keep the non-Controlling Party reasonably informed of any material steps taken and provide copies of all material documents filed, in connection with such defence, claim or counterclaim.

Invalidity or Unenforceability Defences or Actions. Each Party shall promptly notify the other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the AstraZeneca Patents by a Third Party and of which such Party becomes aware. As between the Parties, (i) Licensee shall have the first right, but not the obligation, to defend and control the defence of the validity and enforceability of the AstraZeneca Patents at its sole cost. If Licensee declines to defend any such invalidity claim with respect to the AstraZeneca Patent, AstraZeneca may defend such invalidity claim at its own cost and expense. For purposes of this Section 5.5, the Party defending any action pursuant to the foregoing sentence with respect to a Patent shall be the “"Controlling Party.” " If the Controlling Party or its designee elects not to defend or control the defence of the applicable Patents in a suit brought in the Territory or otherwise fails to initiate and maintain the defence of any such claim, suit or proceeding, then subject to any rights of Third Parties under any applicable Third Party agreements existing as of the Effective Date, the non-Controlling Party may conduct and control the defence of any such claim, suit or proceeding at its sole cost and expense. The non-Controlling Party in such an action shall, and shall cause its Affiliates to, assist and cooperate with the Controlling Party, as such Controlling Party may reasonably request from time to time in connection with its activities set forth in this Section, including where necessary, furnishing a power of attorney solely for such purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the Controlling Party shall reimburse the non-Controlling Party for its reasonable and verifiable costs and expenses incurred in connection therewith. In connection with any activities with respect to a defence, claim or counterclaim relating to the AstraZeneca Patents pursuant to this Section 5.5, the Controlling Party shall (x) consult with the non-Controlling Party as to the strategy for such activities, (y) consider in good faith any comments from the non-Controlling Party and (z) keep the non-Controlling Party reasonably informed of any material steps taken and provide copies of all material documents filed, in connection with such defence, claim or counterclaim.

Invalidity or Unenforceability Defences or Actions. Each Party shall promptly notify the other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the AstraZeneca AUM Patents in the Territory by a Third Party and of which such Party becomes aware. As between the Parties, (i) Licensee AUM shall have the first right, but not the obligation, obligation to defend and control the defence defense of the validity and enforceability of the AstraZeneca Patents at its sole cost. If Licensee declines to defend any AUM Patents, as applicable, using counsel of AUM’s choice, including when such invalidity claim with respect to the AstraZeneca Patent, AstraZeneca may defend such invalidity claim at its own cost and expense. For purposes of this Section 5.5, the Party defending any action pursuant to the foregoing sentence with respect to or unenforceability is raised as a Patent shall be the “Controlling Party.” If the Controlling Party defence or its designee elects not to defend or control the defence of the applicable Patents in a suit brought in the Territory or otherwise fails to initiate and maintain the defence of any such claim, suit or proceeding, then subject to any rights of Third Parties under any applicable Third Party agreements existing as of the Effective Date, the non-Controlling Party may conduct and control the defence of any such claim, suit or proceeding at its sole cost and expense. The non-Controlling Party in such an action shall, and shall cause its Affiliates to, assist and cooperate with the Controlling Party, as such Controlling Party may reasonably request from time to time counterclaim in connection with its activities set forth in this Sectionan Infringement action initiated pursuant to Section 8.3 (Enforcement of Patents). AUM shall solely bear the cost and expense of such defences that it elects to undertake worldwide, including where necessary, furnishing a power of attorney solely for such purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the Controlling Party shall reimburse the non-Controlling Party for its reasonable and verifiable any costs and expenses incurred in connection therewithwith any such defence in the Field in the Territory. In connection with any activities with respect to a defence, claim or counterclaim relating to the AstraZeneca AUM Patents pursuant to this Section 5.58.5 (Invalidity or Unenforceability Defences or Actions), the Controlling Party shall AUM shall: (xa) consult with the non-Controlling Party Newsoara as to the strategy for such activities, ; (yb) consider in good faith any comments from the non-Controlling Party and Newsoara; and (zc) keep the non-Controlling Party Newsoara reasonably informed of any material steps taken and provide copies of all material documents filed, in connection with such defencedefense, claim or counterclaim. If AXX decides not to defend and control the defense of the validity or enforceability of any AUM Patent, then AUM shall so notify Newsoara and Newsoara may choose to defend and control the defense of the validity or enforceability of any AUM Patent at its sole cost and expense in the name of Newsoara. AUM shall use Commercially Reasonable Efforts to make available to Newsoara and its authorized attorneys, agents or representatives, such of its employees as are reasonably necessary to assist Newsoara in defending the patent protection described under this Section 8.5 (Invalidity or Unenforceability Defences or Actions). AUM shall sign or use Commercially Reasonable Efforts to have signed all legal documents necessary for Newsoara to transfer such AUM Patents from AUM to Newsoara. AUM shall be reimbursed for any and all costs and expenses incurred in making available to Newsoara and its authorized attorneys, agents or representatives, such of its employees as are reasonably necessary to assist Newsoara in defending the patent protection described under this Section 8.5 (Invalidity or Unenforceability Defences or Actions). Such AUM Patents in such country or region shall be deemed as Newsoara’s Patents and shall not be taken into account in determining the Royalty Term.

Invalidity or Unenforceability Defences or Actions. Each Party shall promptly notify 16.2.1 In the other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the AstraZeneca Patents by event that a Third Party and of which or Sublicensee asserts, as a defence or as a counterclaim in any infringement action under Section 15.1, that any Licensed Patent or Joint Patent is invalid or unenforceable, then the Party pursuing such Party becomes awareinfringement action shall promptly give written notice to the other Party. As between the Parties, (i) Licensee AstraZeneca shall have the first right, but not the obligation, to defend and control the defence of the validity and enforceability of the AstraZeneca Patents at its sole costcost and expense through counsel of its choosing, to respond to such defence or defend against such counterclaim (as applicable) and, if Neoprobe is pursuing the applicable infringement action under Section 15.1, Neoprobe shall allow AstraZeneca to control such response or defence (as applicable). If Licensee declines to defend The Parties shall each bear fifty percent (50%) of any such invalidity claim costs and expenses with respect to the such response or defence against such counterclaim (as applicable). If AstraZeneca Patent, AstraZeneca may defend such invalidity claim at its own cost and expense. For purposes of this Section 5.5, the Party defending any action pursuant to the foregoing sentence with respect to a Patent shall be the “Controlling Party.” If the Controlling Party or its designee elects determines not to respond to such defence or defend or control the defence of the applicable Patents in a suit brought in the Territory or otherwise fails to initiate and maintain the defence of any against such claimcounterclaim (as applicable), suit or proceedingNeoprobe shall, then subject to any rights of Third Parties under any applicable Third Party agreements existing as of the Effective Date, the non-Controlling Party may conduct and control the defence of any such claim, suit or proceeding at its sole cost and expense, have the right to respond to such defence or defend against such counterclaim (as applicable). Confidential Treatment – Asterisked material has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 16.2.2 Similarly, if a Third Party or Sublicensee asserts, in a declaratory judgment action or similar action or claim filed by such Third Party, that any Licensed Patent or Joint Patent is invalid or unenforceable, then the Party first becoming aware of such action or claim shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, at its sole cost and expense, through counsel of its choosing, to defend against such action or claim. The non-Controlling Party in Parties shall each bear fifty percent (50%) of any costs and expenses with respect to such an action defence. If AstraZeneca determines not to assume such defence, Neoprobe shall, at its sole cost and expense, have the right to defend against such action or claim. 16.2.3 Neoprobe shall cause its Affiliates to, assist and cooperate with the Controlling Party, as such Controlling Party may reasonably request from time provide to time AstraZeneca all reasonable assistance requested by AstraZeneca in connection with its activities set forth in any action, claim or suit under this SectionSection 16.2, including where necessaryallowing AstraZeneca access to Neoprobe’s files and documents and to Neoprobe’s personnel who may have possession of relevant information. In particular Neoprobe shall promptly make available to AstraZeneca, furnishing a power free of attorney solely for such purpose charge, all information in its possession or joining in, or being named as a necessary party to, control that it is aware will assist AstraZeneca in responding to any such action, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the Controlling Party shall reimburse the non-Controlling Party for its reasonable and verifiable costs and expenses incurred in connection therewith. In connection with any activities with respect to a defence, claim or counterclaim relating to the AstraZeneca Patents pursuant to this Section 5.5, the Controlling Party shall (x) consult with the non-Controlling Party as to the strategy for such activities, (y) consider in good faith any comments from the non-Controlling Party and (z) keep the non-Controlling Party reasonably informed of any material steps taken and provide copies of all material documents filed, in connection with such defence, claim or counterclaimsuit.

Invalidity or Unenforceability Defences or Actions. Each 17.2.1. In the event that a Third Party shall promptly notify the other Party or Sublicensee asserts, as a defence or as a counterclaim in writing of any alleged or threatened assertion of invalidity or unenforceability of infringement action under Sections 16.2 and 16.3, that any of the AstraZeneca Licensed Patents by a Third or Collaboration Patents is invalid or unenforceable, then the Party and of which pursuing such Party becomes awareinfringement action in accordance with Section 16.2 or 16.3 shall promptly give written notice to the other Party. As between the PartiesRegarding any such defence or counterclaim under any infringement actions under Section 16.2 or 16.3, (i) Licensee *** shall have the first right, but not the obligation, through counsel of its choosing and at its cost and expense subject to the credit provisions of Section 17.5, to respond to such defence or defend against such counterclaim (as applicable), including, subject to what is stated in Section 17.3, the right to settle or otherwise compromise such claim. If *** notifies *** in writing that it does not wish to respond to such defence or defend against such counterclaim (as applicable), ***, shall, at *** sole cost and control expense, have the right to respond to such defence or defend against such counterclaim (as applicable); provided, however, that *** may contribute to the defence of the validity and enforceability of the AstraZeneca Patents at its sole cost. If Licensee declines to or defend any against such invalidity claim with respect to the AstraZeneca Patentcounterclaim (as applicable) or join such defence or defend against such counterclaim (as applicable) voluntarily, AstraZeneca may defend such invalidity claim at its own cost and expense, and shall have the right to be heard and *** shall, and shall procure such Third Party having a licence from *** under the infringed or allegedly infringed claim of the Licensed Patents to, give due regard to *** or such Sublicensee’s views. For purposes ***, (i) shall not have the right to, and shall not permit any of this Section 5.5its other licensees and shall procure such licensees not to, enter into any settlement or consent to any claim to the effect that any claim under, or the patent protection otherwise offered under, any part of the Licensed Patents within the Licensed Field would be materially negatively affected, without the prior written consent of ***, such consent not to be unreasonably withheld; and (ii) shall obtain the written consent of *** prior to ceasing to defend, settling or otherwise compromising such defence or counterclaim. 17.2.2. Similarly, if a *** asserts, in a declaratory judgment action or similar action or claim filed by such ***, that any of the Licensed Patents or Collaboration Patents is invalid or unenforceable, then the Party defending any first becoming aware of such action pursuant or claim shall promptly give written notice to the foregoing sentence with respect other Party. *** shall have the first right, but not the obligation, through counsel of its choosing and at its cost and expense subject to a Patent shall be the “Controlling Party.” If the Controlling Party or its designee elects not credit provisions of Section 17.5, to defend against such action or control claim, including the defence of the applicable Patents right to settle, subject to what is stated in a suit brought in the Territory Section 17.3 or otherwise fails to initiate and maintain the defence of any compromise such claim, suit . If *** notifies *** in writing that it does not wish to respond to or proceeding, then subject to any rights of Third Parties under any applicable Third Party agreements existing as of the Effective Date, the non-Controlling Party may conduct and control the defence of any defend against or settle such action or claim, suit or proceeding ***, shall, at its *** sole cost and expense. The non-Controlling Party in , have the right to defend against such an action or claim; provided, however, that AstraZeneca or its Sublicensees may contribute to such action or claim or join such action or claim voluntarily, at its own cost and expense, and shall have the right to be heard and *** shall, and shall cause its Affiliates procure such Third Party having a licence from *** under the infringed or allegedly infringed claim of the Licensed Patents to, assist give due regard to *** or such Sublicensee’s views. ***, (i) shall not have the right to, and cooperate with shall not permit any of its other licensees and shall procure such licensees not to, enter into any settlement or consent to any claim to the Controlling Party, as such Controlling Party may reasonably request from time to time in connection with its activities set forth in this Section, including where necessary, furnishing a power of attorney solely for such purpose or joining ineffect that any claim under, or being named as a necessary party tothe patent protection otherwise offered under, any part of the Licensed Patentswithin the Licensed Field would be materially negatively affected, without the prior written consent of ***, such action, providing access consent not to relevant documents and other evidence and making its employees available at reasonable business hoursbe unreasonably withheld; provided that the Controlling Party shall reimburse the non-Controlling Party for its reasonable and verifiable costs and expenses incurred in connection therewith. In connection with any activities with respect to a defence, claim or counterclaim relating to the AstraZeneca Patents pursuant to this Section 5.5, the Controlling Party shall (x) consult with the non-Controlling Party as to the strategy for such activities, (y) consider in good faith any comments from the non-Controlling Party and (zii) keep shall obtain the non-Controlling Party reasonably informed written consent of any material steps taken and provide copies of all material documents filed*** prior to ceasing to defend, in connection with settling or otherwise compromising such defence, claim defence or counterclaim.