Invalidity or Unenforceability Defenses or Actions. As between the Parties, (i) Prosecuting Party pursuant to 6.2.2 shall have the first right, but not the obligation, to defend and control the defense of the validity and enforceability of the Exclusive Licensed Patents at its sole cost and expense, using counsel of Prosecuting Party’s choice and including when such invalidity or unenforceability is raised as a defense or counterclaim in connection with an Infringement action initiated pursuant to Section 6.3. For purposes of this Section 6.5, the Party prosecuting any Infringement pursuant to the foregoing sentence with respect to a Patent shall be the “Controlling Party.” With respect to any such claim, suit or proceeding in the Territory, the non-Controlling Party may participate in such claim, suit or proceeding with counsel of its choice at its sole cost and expense; provided that the Controlling Party shall retain control of the defense in such claim, suit or proceeding. If the Controlling Party or its designee elects not to defend or control the defense of the applicable Patents in a suit brought in the Territory or otherwise fails to initiate and maintain the defense of any such claim, suit or proceeding, then subject to any rights of Third Parties under any In-License Agreements (or other applicable Third Party agreements existing as of the Effective Date) the non-Controlling Party may conduct and control the defense 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 out in this Section 6.5, 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 out-of-pocket costs and expenses incurred in connection therewith. In connection with any activities with respect to a defense, claim or counterclaim relating to the Exclusive Licensed Patents, pursuant to this Section 6.5, 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...
Invalidity or Unenforceability Defenses or Actions. In the event that a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.4.1, that any Ambit Licensed Patent or Program Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. Where such allegation is made in an opposition, reexamination, interference or other patent office proceeding, the provisions of Section 8.3.7 shall apply. Where such allegation is made in a counterclaim to a suit or other action brought under Section 8.4.1, the Party with the first right to enforce the Patent Rights at issue shall have the first right to respond to such defense or defend against such counterclaim (as applicable) and the provisions of Section 8.4.1 (including step-in rights and control over settlement) shall apply. In all other cases, including any declaratory judgment action or similar action or claim filed by a Third Party asserting that any Ambit Licensed Patent or Program Patent is invalid or unenforceable, Astellas shall have the first right to defend such action, at Astellas’s expense, and Ambit will cooperate with Astellas, at Astellas’s expense in such defense. In the event Astellas does not so elect to defend an action with respect to any Ambit Licensed Patent or Program Patent under this Section 8.3.8, it shall so notify Ambit in writing, and Ambit shall have the right to so defend such action, at Ambit’s expense; provided, however, that Ambit shall obtain the written consent of Astellas prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim if such action is likely to materially adversely affect Astellas’s interests in the applicable Ambit Licensed Patent or Program Patent or rights under this Agreement. Each Party shall provide to the Party defending any such rights under this Section 8.3.8 all reasonable assistance in such enforcement, at such defending Party’s request and expense. The defending Party shall keep the other Party regularly informed of the status and progress of such efforts, and shall reasonably consider the other Party’s comments on any such efforts.
Invalidity or Unenforceability Defenses or Actions. In the event that the Applicant asserts, as a defense or as a counterclaim in any infringement action under Section 5.5.4 hereof, that any of the Licensed Patent Rights or any Patent Rights claiming CytomX TAP Platform Improvements, Joint Program Technology or Joint TAP Platform Improvements is invalid or unenforceable, then the Parties’ respective rights and obligations with respect to the response to such defense or the defense against such counterclaim, as applicable, (including rights to initiate, step in, participate in, settle and share amounts recovered pursuant to such action, and obligations to pay legal costs and expenses with respect to such action) shall be as set forth in Section 5.4.2 hereof; provided that for these purposes any such defense or counterclaim shall be deemed to be an Infringement. In all other cases, including any declaratory judgment action or similar action or claim filed by an Applicant asserting that any of the Licensed Patent Rights or any Patent Rights claiming CytomX TAP Platform Improvements, Joint Program Technology or Joint TAP Platform Improvements is invalid or unenforceable (as in a declaratory judgment action brought by the Applicant following the Premarket Notice), then the Parties’ respective rights and obligations with respect to such action (including rights to initiate, step in, participate in, settle and share amounts recovered pursuant to such action, and obligations to pay legal costs and expenses with respect to such action) shall be as set forth in Section 5.4.2 hereof; provided that for these purposes any such case shall be deemed to be an Infringement.
Invalidity or Unenforceability Defenses or Actions. Each Party will promptly notify the other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the Jazz Patent Rights, Codiak Product-Specific Collaboration Patent Rights, Codiak Platform Patent Rights, Codiak Other Collaboration Patent Rights, or Joint Collaboration Patent Rights by a Third Party of which such Party becomes aware, including, for example, in connection with oppositions, nullity or revocation actions, post-grant reviews and other patent office proceedings involving such Patent Rights, provided that, in the event such alleged or threatened assertion of invalidity or unenforceability is raised in an enforcement action, the allocation of responsibility for costs will be determined in accordance with Section 10.4. [***]. Jazz will have the first right, but not the obligation, to control the defense of any Joint Collaboration Patent Rights at Jazz’s sole cost and expense. If Jazz elects not to defend or control the defense of the applicable Joint Collaboration Patent Rights in a suit brought in the Territory or otherwise fails to initiate and maintain any such defense, then Codiak may, at its sole cost and expense, conduct and control such defense using counsel of its own choice. Where a Party controls a defense pursuant to this Section 10.7, the other Party will have the right to participate in such defense using counsel of its choice at its sole cost and expense (provided that the controlling Party will retain control of such defense) and will, and will cause its Affiliates to, assist and cooperate with the controlling Party, at the controlling Party’s expense, as such controlling Party may reasonably request from time to time. In connection with any activities with respect to the defense of any Codiak Other Collaboration Patent Right or Joint Collaboration Patent Right pursuant to this Section 10.7, the controlling Party will (a) consult with the other Party as to the strategy for such activities, (b) consider in good faith any comments from the other Party and (c) keep the other Party reasonably informed of any material steps taken and provide copies of all material documents filed, in connection with such defense.
Invalidity or Unenforceability Defenses or Actions. (a) If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Sections 7.1, 7.2 or 7.3, that any Licensed Patent is invalid or unenforceable, or that an interference should be declared with respect to a Licensed Patent, then the Parties shall promptly meet (which meeting may at any Party’s request be by telephone conference or videoconference) to discuss the response to such defense or defense of such counterclaim or action (as applicable) and shall cooperate with one another in such response or defense. The Party or Parties that are the plaintiffs in the underlying suit or action against such Third Party shall have the initial right to respond to such defense or defend against such counterclaim (as applicable), provided that such response or defense shall be conducted in collaboration with the other Parties, to the extent that the other Parties’ intellectual property rights or rights under this Agreement are the subject of such invalidity or unenforceability defense or counterclaim. The Party plaintiff shall involve such other Party(ies) in all decisions as to such response or defense, and in any event such Party plaintiff shall not settle or otherwise compromise such defense or counterclaim in any way that adversely affects such other Party’s Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. intellectual property rights or rights under this Agreement without such other Party’s written consent, not to be unreasonably withheld or delayed.
Invalidity or Unenforceability Defenses or Actions. In the event that a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 10.2.1 or otherwise, that any Targacept Patent Rights (other than Targacept Excluded Patent Rights) or Joint Patent Rights are 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 choice and at its sole expense (subject to Section 10.2.4), to respond to and control such defense or defend against such counterclaim (as applicable), including the right to settle or otherwise compromise such claim at its sole expense (subject to Section 10.2.4). If AstraZeneca notifies Targacept in writing that it does not wish to respond to such defense or defend against, or settle or otherwise compromise, such counterclaim (as applicable), Targacept shall have the right, but not the obligation, through counsel of its choice and at its sole expense, upon written notice to AstraZeneca, to respond to such defense or defend against such counterclaim (as applicable); provided, however, that Targacept shall provide written notice to AstraZeneca reasonably in advance of ceasing to defend or prosecute such defense or counterclaim so as to enable AstraZeneca to assume control of such defense or counterclaim if it so elects, and shall obtain the written consent of AstraZeneca, not to be unreasonably withheld, conditioned or delayed, prior to settling or otherwise compromising, such defense or counterclaim. Further, 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 Targacept Patent Rights (other than Targacept Excluded Patent Rights) or Joint Patent Rights are 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 choice, and at its sole expense (subject to Section 10.2.4), to defend against such action or claim, including the right to settle or otherwise compromise such claim. If AstraZeneca notifies Targacept in writing that it does not wish to respond to or defend against or settle or otherwise compromise such action or claim, Targacept shall have the right, but not the obligation, through counsel of its choice and at its s...
Invalidity or Unenforceability Defenses or Actions. 7.6.1 Each Party shall promptly notify the other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the UroGen Patents or Agreement Patents by a Third Party of which such Party becomes aware.
Invalidity or Unenforceability Defenses 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 Genelux Patents and Joint Patents in the Territory by a Third Party of which such Party becomes aware. Genelux shall have the first right, but not the obligation to defend and control the defense of the validity and enforceability of the Genelux Patents and Joint Patents, as applicable, using counsel of its choice, including when such invalidity or unenforceability is raised as a defense or counterclaim in connection with an Infringement action initiated pursuant to Section 6.3 (Enforcement of Patents). Genelux shall solely bear the cost and expense of such defenses that it elects to undertake worldwide, including for any costs and expenses incurred in connection with any such defense in the Territory in the Field. If Genelux decides not to defend and control the defense of the validity or enforceability of any Genelux Patent or Joint Patent in the Territory, then Genelux shall so notify Newsoara and Newsoara may choose to defend and control the defense of the validity or enforceability of any Genelux Patent or Joint Patent in the Territory at its sole cost and expense. Genelux 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 6.5 (Invalidity or Unenforceability Defenses or Actions). Genelux shall sign or use Commercially Reasonable Efforts to have signed all legal documents necessary for Newsoara to defend such Genelux Patents and Joint Patents in the Territory. If Newsoara’s efforts lead to successful defense of such Patent in the Territory, Newsoara shall have the right to recoup the reasonable cost incurred by Newsoara from royalty payments due to Genelux hereunder.
Invalidity or Unenforceability Defenses 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 Lexicon Patents, Sanofi Patents or Joint Patents by a Third Party of which such Party becomes aware. In the event that such allegation or threatened assertion arises in connection with a proceeding covered by Section 8.5, the allocation of rights and responsibilities, including with respect to costs and recoveries, shall be governed by Section 8.5. For all other allegations or threatened assertions, the provisions of Section 8.4 shall govern the Parties’ rights and obligations with respect to such action, as if such action were a Post Grant Proceeding.
Invalidity or Unenforceability Defenses or Actions. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 6.2 or claim or counterclaim asserted under Section 6.3, or in a declaratory judgment action or similar action or claim filed by such Third Party, in any such case, that any AstraZeneca Patent is invalid or unenforceable, then the Party pursuing such infringement action, or the Party first obtaining knowledge of such declaratory judgment action, as the case may be, shall promptly give written notice to the other Party. AstraZeneca shall have the sole right, but not the obligation, through counsel of its choosing, to defend against such action or claim. If AstraZeneca defends such action or claim, all costs and expenses of defending such action or claim shall be borne by AstraZeneca. Horizon shall assist and cooperate with AstraZeneca as AstraZeneca may reasonably request from time to time in connection with its activities set forth in this Section 6.4, including by providing access to relevant documents and other evidence and making its employees available at reasonable business hours, at AstraZeneca’s sole cost and expense. In connection with any such defense or claim or counterclaim, AstraZeneca shall consider in good faith any comments from Horizon and shall keep Horizon reasonably informed of any steps taken, and shall provide copies of all documents filed, in connection with such defense, claim or counterclaim.
