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

Invalidity or Unenforceability Defences or Actions. 20.2.1 In the event that a Third Party or Sublicensee asserts, as a defence or as a counterclaim in any infringement action under Section 19.1, that any Licensed Patent, Joint Patent or AstraZeneca Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, through counsel of its choosing, to respond to such defence or defend against such counterclaim (as applicable), including the right to settle or otherwise compromise such claim. If AstraZeneca notifies Avanir in writing that it does not wish to respond to such defence or defend against, or settle, such counterclaim (as applicable), Avanir shall, at its sole cost and expense, have the right to respond to such defence or defend against such counterclaim (as applicable); provided, however, that Avanir shall obtain the written consent of AstraZeneca prior to ceasing to defend, settling or otherwise compromising such defence or counterclaim. 20.2.2 Similarly, if a Third Party or Sublicensee asserts, in a declaratory judgment action or similar action or claim filed by such Third Party or Sublicensee, that any Licensed Patent, Joint Patent or AstraZeneca 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, through counsel of its choosing, to defend against such action or claim, including the right to settle or otherwise compromise such claim. If AstraZeneca notifies Avanir in writing that it does not wish to respond to or defend against or settle such action or claim, Avanir shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, CONFIDENTIAL TREATMENT REQUESTED that Avanir shall obtain the written consent of AstraZeneca prior to ceasing to defend, settling or otherwise compromising any such action or claim.

Invalidity or Unenforceability Defences or Actions. 20.2.1 17.2.1. In the event that a Third Party or Sublicensee asserts, as a defence or as a counterclaim in any infringement action under Section 19.1Sections 16.2 and 16.3, that any of the Licensed Patent, Joint Patent Patents or AstraZeneca Patent Collaboration Patents is invalid or unenforceable, then the Party pursuing such infringement action in accordance with Section 16.2 or 16.3 shall promptly give written notice to the other Party. AstraZeneca Regarding any such defence or counterclaim under any infringement actions under Section 16.2 or 16.3, *** shall have the first right, but not the obligation, through counsel of its choosingchoosing 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 including, subject to what is stated in Section 17.3, the right to settle or otherwise compromise such claim. If AstraZeneca *** notifies Avanir *** in writing that it does not wish to respond to such defence or defend against, or settle, against such counterclaim (as applicable), Avanir ***, shall, at its *** sole cost and expense, have the right to respond to such defence or defend against such counterclaim (as applicable); provided, however, that Avanir *** may contribute to the defence or defend against such counterclaim (as applicable) or join such defence or defend against such counterclaim (as applicable) voluntarily, 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. ***, (i) shall not have the right to, and 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 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 AstraZeneca *** prior to ceasing to defend, settling or otherwise compromising such defence or counterclaim. 20.2.2 17.2.2. Similarly, if a Third Party or Sublicensee *** asserts, in a declaratory judgment action or similar action or claim filed by such Third Party or Sublicensee***, that any of the Licensed Patent, Joint Patent Patents or AstraZeneca Patent Collaboration Patents 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, through counsel of its choosingchoosing and at its cost and expense subject to the credit provisions of Section 17.5, to defend against such action or claim, including the right to settle settle, subject to what is stated in Section 17.3 or otherwise compromise such claim. If AstraZeneca *** notifies Avanir *** in writing that it does not wish to respond to or defend against or settle such action or claim, Avanir ***, shall, at its *** sole cost and expense, have the right to defend against such action or claim; provided, however, CONFIDENTIAL TREATMENT REQUESTED that Avanir 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 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. ***, (i) shall not have the right to, and 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 effect that any claim under, or the 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 consent not to be unreasonably withheld; and (ii) shall obtain the written consent of AstraZeneca *** prior to ceasing to defend, settling or otherwise compromising any such action defence or claimcounterclaim.

Invalidity or Unenforceability Defences or Actions. 20.2.1 16.2.1 In the event that a Third Party or Sublicensee asserts, as a defence or as a counterclaim in any infringement action under Section 19.115.1, that any Licensed Patent, Joint Patent or AstraZeneca Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action 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 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), including the right . The Parties shall each bear fifty percent (50%) of any costs and expenses with respect to settle such response or otherwise compromise defence against such claimcounterclaim (as applicable). If AstraZeneca notifies Avanir in writing that it does determines not wish to respond to such defence or defend against, or settle, against such counterclaim (as applicable), Avanir Neoprobe shall, at its sole cost and expense, have the right to respond to such defence or defend against such counterclaim (as applicable); provided, however, that Avanir shall obtain the written consent of AstraZeneca prior to ceasing to defend, settling or otherwise compromising such defence or counterclaim. 20.2.2 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 or SublicenseeParty, that any Licensed Patent, Joint Patent or AstraZeneca 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, including the right . The Parties shall each bear fifty percent (50%) of any costs and expenses with respect to settle or otherwise compromise such claimdefence. If AstraZeneca notifies Avanir in writing that it does determines not wish to respond to or defend against or settle assume such action or claimdefence, Avanir Neoprobe shall, at its sole cost and expense, have the right to defend against such action or claim; provided. Confidential Treatment – Asterisked material has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 16.2.3 Neoprobe shall provide to AstraZeneca all reasonable assistance requested by AstraZeneca in connection with any action, howeverclaim or suit under this Section 16.2, CONFIDENTIAL TREATMENT REQUESTED including allowing 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, free of charge, all information in its possession or control that Avanir shall obtain the written consent of it is aware will assist AstraZeneca prior in responding to ceasing to defend, settling or otherwise compromising any such action action, claim or claimsuit.

Invalidity or Unenforceability Defences or Actions. 20.2.1 16.2.1 In the event that a Third Party or Sublicensee asserts, as a defence or as a counterclaim in any infringement action under Section 19.115.1, that any Licensed Patent, Joint Patent or AstraZeneca Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action 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 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), including the right . The Parties shall each bear fifty percent (50%) of any costs and expenses with respect to settle such response or otherwise compromise defence against such claimcounterclaim (as applicable). If AstraZeneca notifies Avanir in writing that it does determines not wish to respond to such defence or defend against, or settle, against such counterclaim (as applicable), Avanir Neoprobe shall, at its sole cost and expense, have the right to respond to such defence or defend against such counterclaim (as applicable); provided, however, that Avanir shall obtain . Confidential Treatment – Asterisked material has been omitted and filed separately with the written consent of AstraZeneca prior Securities and Exchange Commission pursuant to ceasing to defend, settling or otherwise compromising such defence or counterclaima request for confidential treatment. 20.2.2 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 or SublicenseeParty, that any Licensed Patent, Joint Patent or AstraZeneca 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, including the right . The Parties shall each bear fifty percent (50%) of any costs and expenses with respect to settle or otherwise compromise such claimdefence. If AstraZeneca notifies Avanir in writing that it does determines not wish to respond to or defend against or settle assume such action or claimdefence, Avanir Neoprobe shall, at its sole cost and expense, have the right to defend against such action or claim; provided. 16.2.3 Neoprobe shall provide to AstraZeneca all reasonable assistance requested by AstraZeneca in connection with any action, howeverclaim or suit under this Section 16.2, CONFIDENTIAL TREATMENT REQUESTED including allowing 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, free of charge, all information in its possession or control that Avanir shall obtain the written consent of it is aware will assist AstraZeneca prior in responding to ceasing to defend, settling or otherwise compromising any such action action, claim or claimsuit.