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

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 Each Party shall promptly notify the event that other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the Option Patents by a Third Party or Sublicensee assertsand of which such Party becomes aware. As between the Parties, 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 Mereo shall have the first right right, but not the obligation, 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 applythe defense of the validity and enforceability of the Option Patents [***]. In all other casesIf, 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 unenforceableprior to the Option Exercise Date, Astellas shall have the first right Mereo declines to defend any 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 invalidity claim with respect to any Ambit Licensed Patent or Program Patent under an Option Patent, AstraZeneca may defend such invalidity claim [***]. For purposes of this Section 8.3.89.5, 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 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 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 this Section 8.3.8 all reasonable assistance any 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 [***]. If Mereo exercises the Option, AstraZeneca shall have no right to defend or control the defense of for the relevant Option Patents from and including the relevant Option Exercise Date. The non-Controlling Party 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 effortsan 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 9.5, 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 [***] costs and expenses incurred in connection therewith. In connection with any activities with respect to a defense, claim or counterclaim relating to the Option Patents pursuant to this Section 9.5, 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 other Party’s comments on 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 effortsdefense, claim or counterclaim.

Invalidity or Unenforceability Defenses or Actions. In As between the event that a Third 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 Sublicensee asserts, unenforceability is raised as a defense or as a counterclaim in any infringement connection with an Infringement action under initiated pursuant to 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 Party6.3. Where such allegation is made in an opposition, reexamination, interference or other patent office proceeding, the provisions For purposes of this Section 8.3.7 shall apply. Where such allegation is made in a counterclaim to a suit or other action brought under Section 8.4.16.5, the Party with prosecuting any Infringement pursuant to 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 foregoing sentence with respect to a Patent shall be the “Controlling Party.” With respect to any Ambit Licensed Patent such claim, suit or Program Patent under this Section 8.3.8proceeding in the Territory, it shall so notify Ambit the non-Controlling Party may participate in writingsuch claim, suit or proceeding with counsel of its choice at its sole cost and Ambit shall have the right to so defend such action, at Ambit’s expense; providedprovided that the Controlling Party shall retain control of the defense in such claim, however, that Ambit shall obtain suit or proceeding. If the written consent Controlling Party or its designee elects not to defend or control the defense of Astellas prior to ceasing to defend, settling the applicable Patents in a suit brought in the Territory or otherwise compromising such fails to initiate and maintain the 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 of any such claim, suit or proceeding, then subject to any rights of Third Parties under this Section 8.3.8 all reasonable assistance in 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 enforcementclaim, suit or proceeding at such defending Party’s request its sole cost and expense. The defending non-Controlling Party shall keep the other Party regularly informed of the status and progress of in such effortsan 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 other Party’s comments on 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 effortsdefense, claim or counterclaim.

Invalidity or Unenforceability Defenses or Actions. In Each Party shall promptly notify the event that other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the AstraZeneca Patents by a Third Party of which such Party becomes aware. As between the Parties, AstraZeneca shall have the first right, but not the obligation, to defend and control the defense of the validity and enforceability of the AstraZeneca Patents at its sole cost and expense, using counsel of AstraZeneca’s choice and (b) Licensee shall have the sole right, but not the obligation, to defend and control the defense of the validity and enforceability of the Licensee Patents at its sole cost and expense, using counsel of Licensee’s choice, including, in each case ((a) and (b)), when such invalidity or Sublicensee asserts, unenforceability is raised as a defense or as a counterclaim in connection with an Infringement action initiated pursuant to Section 5.3. With respect to any infringement action under Section 8.4.1such claim, suit or proceeding related to AstraZeneca Patents in the Territory, Licensee may participate in such claim, suit or proceeding with counsel of its choice at its sole cost and expense; provided that AstraZeneca shall retain control of the defense in such claim, suit or proceeding. If AstraZeneca or its designee elects not to defend or control the defense of the applicable AstraZeneca Patents in a suit brought in the Territory or otherwise fails to initiate and maintain the defense of any Ambit Licensed Patent such claim, suit 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, Licensee may conduct and control the provisions defense of Section 8.3.7 shall apply. Where any such allegation is made in a counterclaim to a claim, suit or other action brought under Section 8.4.1proceeding at its sole cost and expense. Licensee shall, the Party and shall cause its Affiliates to, cooperate fully with the first right respect 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 including being joined as a party plaintiff in such defenseaction, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the AstraZeneca shall reimburse Licensee for its reasonable and verifiable costs and expenses incurred in connection therewith. In the event Astellas does not so elect to defend an action AstraZeneca shall consider in good faith any comments from Licensee and shall keep Licensee reasonably informed of any steps taken 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. 12.3.1 In the event that a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.4.112.2, that any Ambit Licensed Patent or Program Patent is IP Rights are invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. Where such allegation The Party that is made the plaintiff 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 underlying suit or other action brought under Section 8.4.1against such Third Party shall, the Party with the first right to enforce the Patent Rights at issue shall have the first right to its sole cost and expense, respond to such defense or defend against such counterclaim (as applicable) ), provided that to the extent that the other Party’s Patent Rights are the subject of such invalidity or unenforceability defense or counterclaim, the Party that has the right to enforce such Patent Rights under Section 12.2, at its sole cost and expense, shall control all decisions as to such response or defense (in consultation with the provisions of other Party), provided further that, except as permitted in Section 8.4.1 (including step-12.5, neither Party shall settle or otherwise compromise such defense or counterclaim in any way that materially adversely affects the other Party’s Patent Rights or its interest therein, or rights and control over settlement) shall apply. under this Agreement, without such other Party’s written consent, not to be unreasonably withheld or delayed. 12.3.2 In all other casesthe event that a Third Party asserts, including any in a declaratory judgment action or similar action or claim filed by a such Third Party asserting Party, that any Ambit Licensed Patent or Program Patent is IP Rights are invalid or unenforceable, Astellas then the Party first becoming aware of such action or claim shall have promptly give written notice to the first right to defend other Party. The Party that is the defendant in such actionsuit or action or claim by such Third Party shall, at Astellas’s its sole cost and expense, and Ambit will cooperate with Astellasrespond to such defense or defend against such action or claim (as applicable), at Astellasprovided that to the extent that the other Party’s expense in Patent Rights are the subject of such defense. In invalidity or unenforceability action or claim, 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 Party that has the right to so defend enforce such actionPatent Rights under Section 12.2, at Ambit’s its sole cost and expense; provided, howevershall control all decisions as to such response or defense (in consultation with the other Party). Notwithstanding the foregoing, that Ambit subject to Section 12.5, neither Party shall obtain the written consent of Astellas prior to ceasing to defend, settling settle or otherwise compromising compromise such defense declaratory judgment action or counterclaim if such similar action is likely to or claim in any way that materially adversely affect Astellasaffects the other Party’s interests in the applicable Ambit Licensed Patent Rights or Program Patent its interest therein, or rights under this Agreement. Each Party shall provide to the Party defending any , without 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 effortswritten consent, not to be unreasonably withheld or delayed.

Invalidity or Unenforceability Defenses or Actions. (a) In the event that a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.4.18.3.1, that any Ambit Licensed Product Trademark, GPC Biotech Patent, Licensee Patent or Program Joint 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 oppositionWith respect to the Product Trademarks, reexaminationGPC Biotech Patents and the Joint Patents, interference or other patent office proceedingsubject to the Spectrum Agreement, 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 GPC Biotech shall have the first right, but not the obligation, through counsel of its choosing, to respond to such defense or defend against such counterclaim (as applicable) and, if Licensee is pursuing the applicable infringement action under Section 8.3.1, Licensee shall allow GPC Biotech to control such response or defense (as applicable). With respect to the Licensee Patents Licensee shall have the first right, but not the obligation, through counsel of its choosing, to respond to such defense or defend against such counterclaim (as applicable) and, if GPC Biotech is pursuing the applicable infringement action under Section 8.3.1, GPC Biotech shall allow Licensee to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Party controlling such response or defense. If either Party determines not to respond to such defense or defend against such counterclaim (as applicable), the other Party shall, at its sole cost and expense, have the 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 such other Party shall obtain the written consent of Astellas GPC Biotech, with respect to the GPC Biotech Patents and the Joint Patents, or Licensee, with respect to the Licensee Patents, prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim counterclaim, such consent not to be unreasonably withheld or delayed. (b) 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 Product Trademark, GPC Biotech Patent, Licensee Patent or Joint Patent is invalid or unenforceable, then the Party first becoming aware of such action is likely or claim shall promptly give written notice to materially adversely affect Astellas’s interests the other Party. With respect to the Product Trademarks, GPC Biotech Patents and Joint Patents, subject to the Spectrum Agreement, GPC Biotech shall have the first right, but not the obligation, through counsel of its choosing, to defend against such action or claim. With respect to the Licensee Patents Licensee shall have the first right, but not the obligation, through counsel of its choosing, to defend against such action or claim. Any costs and expenses with respect to such *** Confidential Treatment Requested defense shall be borne by the Party defending against such action or claim. If either Party determines not to assume such defense with respect to (y) the Product Trademarks, GPC Biotech Patents and Joint Patents in the applicable Ambit Licensed Patent Licensee Territory or Program Patent (z) the Licensee Patents in the Territory, then other Party shall, at its sole cost and expense, have the right to defend against such action or rights under this Agreement. claim; provided, however, that the other Party shall obtain the written consent of GPC Biotech, with respect to the GPC Biotech Patents and the Joint Patents, or Licensee, with respect to the Licensee Patents, prior to ceasing to defend, settling or otherwise compromising any such action or claim, such consent not to be unreasonably withheld or delayed. (c) Each Party shall provide to the other Party defending all reasonable assistance requested by the other Party in connection with any such rights action, claim or suit under this Section 8.3.8 all reasonable assistance in 8.4.2, including allowing such enforcement, at such defending other Party access to the assisting Party’s request files and expensedocuments and to the assisting Party’s personnel who may have possession of relevant information. The defending In particular, the assisting Party shall keep promptly make available to the other Party, free of charge, all information in its possession or control that it is aware will be reasonably necessary to assist the other Party regularly informed of the status and progress of such efforts, and shall reasonably consider the other Party’s comments on in responding to any such effortsaction, claim or suit.

Invalidity or Unenforceability Defenses or Actions. In the event that (a) If a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.4.1Sections 7.1, 7.2 or 7.3, that any Ambit Licensed Patent or Program Patent is invalid or unenforceable, or that an interference should be declared with respect to a Licensed Patent, then the Party pursuing such infringement action Parties shall promptly give written notice meet (which meeting may at any Party’s request be by telephone conference or videoconference) to discuss the other Partyresponse to such defense or defense of such counterclaim or action (as applicable) and shall cooperate with one another in such response or defense. Where such allegation is made The Party or Parties that are the plaintiffs 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 underlying suit or other action brought under Section 8.4.1, the against such Third Party with the first right to enforce the Patent Rights at issue shall have the first 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 provisions of Section 8.4.1 Commission. intellectual property rights or rights under this Agreement without such other Party’s written consent, not to be unreasonably withheld or delayed. (including step-b) Similarly, if a Third Party asserts, in rights and control over settlement) shall apply. In all other cases, including any a declaratory judgment action or similar action or claim filed by a such Third Party asserting that any Ambit Licensed Patent or Program Patent is invalid or unenforceableunenforceable or that an interference should be declared with respect to a Licensed Patent, Astellas then the Parties shall have promptly meet (which meeting may at any Party’s request be by telephone conference or videoconference) to discuss the first right to defend defense of such action, at Astellas’s expense, action or claim and Ambit will shall cooperate with Astellas, at Astellas’s expense one another in such defense. In The Party that is the event Astellas does not so elect defendant in such claim, suit or action shall have the initial right to defend an against same, provided that such defense shall be conducted in collaboration with the other Parties and a process under which each Party shall have a reasonable opportunity to participate in such defense shall be established, and in any event Acorda shall at all times be permitted to intervene in such defense, at its expense, and provided further that to the extent that any other Party’s intellectual property rights or interests under this Agreement are the subject of, or materially impacted by, such invalidity or unenforceability claim, suit or action, the defending Party shall involve such other Party in all decisions as to such defense, and in any event such defending Party shall not settle or otherwise compromise such defense in any way that adversely affects such other Party’s intellectual property rights or its rights under this Agreement without such other Party’s written consent, not to be unreasonably withheld or delayed. (c) The Party defending any claim or action with respect to any Ambit Licensed Patent or Program Patent under this Section 8.3.87.4 shall be responsible for one hundred percent (100%) of the out-of-pocket and reasonable costs and expenses of any such defenses, it shall so notify Ambit in writingprovided that if Acorda is defending, 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 Acorda may credit such defense or counterclaim if such action is likely costs and expenses against royalties owed to materially adversely affect Astellas’s interests in the applicable Ambit Licensed Patent or Program Patent or rights Institutions 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 Sections 3.2 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 efforts3.3.

Invalidity or Unenforceability Defenses or Actions. In Each Party shall promptly notify the event that other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the RVL Patents, Joint Patents or Licensee Patents by a Third Party (including any request for, or Sublicensee assertsany filing or declaration of, any reexamination, review, derivation, interference, opposition, or other patent office proceeding challenging, reviewing, or reexamining the validity or priority of the patent) and of which such Party becomes aware. As between the Parties, (i) RVL shall have the first right, but not the obligation, to defend and control the defense of the validity and enforceability of the RVL Patents and the Joint Patents at its sole cost and expense, using counsel of RVL’s own choice, including when such invalidity or unenforceability is raised as a defense or as a counterclaim in any infringement connection with an Infringement action under initiated pursuant to Section 8.4.16.3; provided that if RVL shall not unreasonably refuse to defend and control the defense if requested by Licensee, 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 and (ii) Licensee shall have the first right right, but not the obligation, to respond to defend and control the defense of the validity and enforceability of the Licensee Patents at its sole cost and expense, using counsel of Licensee’s own 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. The non-controlling Party may participate in any such claim, suit or proceeding in the Territory 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 against or control the defense of the applicable Patents in the Territory or otherwise fails to initiate and maintain the defense of any such counterclaim (as applicable) claim, suit or proceeding, then subject to any rights of Third Parties under any In-License Agreements, the non-controlling Party may conduct and control the provisions defense of Section 8.4.1 (including step-in any such claim, suit or proceeding at its sole cost and expense. RVL shall exercise its rights and control over settlementinterest and perform its obligations under the In-License Agreements in a manner that is sufficient to (a) 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 enable Licensee 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 (before the licensor under the In-License Agreements) to so defend such actionand control the defense of the validity and enforceability of the RVL Patents, at Ambit’s expense; provided, however, that Ambit shall obtain the written consent of Astellas prior or (b) otherwise give full effect 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 efforts6.5.

Invalidity or Unenforceability Defenses or Actions. In the event that (a) If a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.4.1Sections 7.1, 7.2 or 7.3, that any Ambit Licensed Patent or Program Patent is invalid or unenforceable, or that an interference should be declared with respect to a Licensed Patent, then the Party pursuing such infringement action Parties shall promptly give written notice meet (which meeting may at any Party’s request be by telephone conference or videoconference) to discuss the other Partyresponse to such defense or defense of such counterclaim or action (as applicable) and shall cooperate with one another in such response or defense. Where such allegation is made The Party or Parties that are the plaintiffs 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 underlying suit or other action brought under Section 8.4.1, the against such Third Party with the first right to enforce the Patent Rights at issue shall have the first 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 provisions of Section 8.4.1 Commission. intellectual property rights or rights under this Agreement without such other Party’s written consent, not to be unreasonably withheld or delayed. (including step-b) Similarly, if a Third Party asserts, in rights and control over settlement) shall apply. In all other cases, including any a declaratory judgment action or similar action or claim filed by a such Third Party asserting that any Ambit Licensed Patent or Program Patent is invalid or unenforceableunenforceable or that an interference should be declared with respect to a Licensed Patent, Astellas then the Parties shall have promptly meet (which meeting may at any Party’s request be by telephone conference or videoconference) to discuss the first right to defend defense of such action, at Astellas’s expense, action or claim and Ambit will shall cooperate with Astellas, at Astellas’s expense one another in such defense. In The Party that is the event Astellas does not so elect defendant in such claim, suit or action shall have the initial right to defend an against same, provided that such defense shall be conducted in collaboration with the other Parties and a process under which each Party shall have a reasonable opportunity to participate in such defense shall be established, and in any event Acorda shall at all times be permitted to intervene in such defense, at its expense, and provided further that to the extent that any other Party’s intellectual property rights or interests under this Agreement are the subject of, or materially impacted by, such invalidity or unenforceability claim, suit or action, the defending Party shall involve such other Party in all decisions as to such defense, and in any event such defending Party shall not settle or otherwise compromise such defense in any way that adversely affects such other Party’s intellectual property rights or its rights under this Agreement without such other Party’s written consent, not to be unreasonably withheld or delayed. (c) The Party defending any claim or action with respect to any Ambit Licensed Patent or Program Patent under this Section 8.3.87.4 shall be responsible for [***] of the out-of-pocket and reasonable costs and expenses of any such defenses, it shall so notify Ambit in writingprovided that if Acorda is defending, 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 Acorda may credit such defense or counterclaim if such action is likely costs and expenses against royalties owed to materially adversely affect Astellas’s interests in the applicable Ambit Licensed Patent or Program Patent or rights Institutions 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 Sections 3.2 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 efforts3.3.

Invalidity or Unenforceability Defenses or Actions. In As between the event that a Third 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 Sublicensee asserts, unenforceability is raised as a defense or as a counterclaim in any infringement connection with an Infringement action under initiated pursuant to 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 Party6.3. Where such allegation is made in an opposition, reexamination, interference or other patent office proceeding, the provisions For purposes of this Section 8.3.7 shall apply. Where such allegation is made in a counterclaim to a suit or other action brought under Section 8.4.16.5, the Party with prosecuting any Infringement pursuant to 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 foregoing sentence with respect to a Patent shall be the “Controlling Party.” With respect to any Ambit Licensed Patent such claim, suit or Program Patent under this Section 8.3.8proceeding in the Territory, it shall so notify Ambit the non-Controlling Party may participate in writingsuch claim, suit or proceeding with counsel of its choice at its sole cost and Ambit shall have the right to so defend such action, at Ambit’s expense; providedprovided that the Controlling Party shall retain control of the defense in such claim, however, that Ambit shall obtain suit or proceeding. If the written consent Controlling Party or its designee elects not to defend or control the defense of Astellas prior to ceasing to defend, settling the applicable Patents in a suit brought in the Territory or otherwise compromising such fails to initiate and maintain the 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 of any such claim, suit or proceeding, then subject to any rights of Third Parties under this Section 8.3.8 all reasonable assistance in 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 enforcementclaim, suit or proceeding at such defending Party’s request its sole cost and expense. The defending non-Controlling Party shall keep the other Party regularly informed of the status and progress of in such effortsan 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 other Party’s comments on 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 efforts.defense, claim or counterclaim. Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission. Confidential Treatment Requested by Kiniksa Pharmaceuticals, Ltd.

Invalidity or Unenforceability Defenses or Actions. In Each Party shall promptly notify the event that other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the Licensed Patents, Joint Patents or Licensee Patents by a Third Party of which such Party becomes aware. As between the Parties, (a) Licensee shall have the first right, but not the obligation, to defend and control the defense of the validity and enforceability of the Licensed Patents and the Joint Patents at its sole cost and expense, using counsel of Licensee’ choice and (b) Licensee shall have the first right, but not the obligation, to defend and control the defense of the validity and enforceability of the Licensee Patents its sole cost and expense, using counsel of Licensee’s choice, including, in each case ((a) and (b)), when such invalidity or Sublicensee asserts, unenforceability is raised as a defense or as a counterclaim in any infringement connection with an Infringement action under initiated pursuant to 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 Party5.3. Where such allegation is made in an opposition, reexamination, interference or other patent office proceeding, the provisions For purposes of this Section 8.3.7 shall apply. Where such allegation is made in a counterclaim to a suit or other action brought under Section 8.4.15.5, the Party with defending a Patent pursuant to the first right to enforce foregoing sentence shall be 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 “Controlling Party.” With respect to any Ambit Licensed Patent such claim, suit or Program Patent under this Section 8.3.8proceeding in the Territory, it shall so notify Ambit the non-Controlling Party may participate in writingsuch claim, suit or proceeding with counsel of its choice at its sole cost and Ambit shall have the right to so defend such action, at Ambit’s expense; providedprovided that the Controlling Party shall retain control of the defense in such claim, however, that Ambit shall obtain suit or proceeding. If the written consent Controlling Party or its designee elects not to defend or control the defense of Astellas prior to ceasing to defend, settling the applicable Patents in a suit brought in the Territory or otherwise compromising such fails to initiate and maintain the 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 of any such claim, suit or proceeding, then subject to any rights of Third Parties under this Section 8.3.8 all reasonable assistance in any In-License Agreements, the non-Controlling Party may conduct and control the defense of any such enforcementclaim, suit or proceeding at such defending Party’s request its sole cost and expense. The defending non-Controlling Party in such an action shall, and shall cause its Affiliates to, cooperate fully, including being joined as a party plaintiff in 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. The Controlling Party shall consider in good faith any comments from the non-Controlling Party and shall keep the other non-Controlling Party regularly reasonably informed of the status and progress of any steps taken with respect to such efforts, and shall reasonably consider the other Party’s comments on any such effortsaction.

Invalidity or Unenforceability Defenses or Actions. (a) In the event that a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement Patent Infringement action under Section 8.4.1, that any Ambit Licensed Patent 11.1 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 such Third Party asserting Party, that any Ambit Licensed Regeneron Core Patent, Sanofi Core Patent or Program Joint Patent is invalid or unenforceableunenforceable (a “Third Party Invalidity Assertion”), Astellas then the Party first becoming aware of such Third Party Invalidity Assertion shall give written notice thereof to the other Party within five (5) Business Days. (b) With respect to any Third Party Invalidity Assertion, (i) Regeneron shall, at its cost and expense, have the first right to defend such action(and, 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 the Regeneron Core Patents in the Regeneron Territory, the sole right) to control the defense of such Third Party Invalidity Assertion (including, subject to Section 11.4(c), any Ambit Licensed settlement thereof) to the extent that it relates to any Regeneron Managed Patent or Program Patent under this Section 8.3.8and (ii) Sanofi shall, it shall so notify Ambit in writingat its cost and expense, and Ambit shall have the first right (and, with respect to so defend the Sanofi Core Patents in the Sanofi Territory, the sole right) to control the defense of such actionThird Party Invalidity Assertion (including, at Ambit’s expensesubject to Section 11.4(c), any settlement thereof) to the extent that it relates to any Sanofi Managed Patent (the Party with the first right or the sole right being referred to as the “Lead Defense Party”); provided, however, that Ambit the Parties shall obtain ensure that there is proper communication and coordination of activities between the written consent Parties. If the Lead Defense Party has the first right (but not the sole right) and fails to initiate and maintain the defense of Astellas prior a Third Party Invalidity Assertion, the non-Lead Defense Party shall have the right to ceasing to defend, settling or otherwise compromising control such defense or counterclaim at its own cost and expense by providing written notice to the other Party (the Party who controls the defense to be referred to as the “Defending Party”). The non-Defending Party will provide reasonable assistance to the Defending Party in the defense of any applicable Third Party Invalidity Assertion, and if such action is likely to materially adversely affect Astellas’s interests required by applicable Law, will join in the applicable Ambit Licensed Patent or Program Patent or rights under this Agreement. Each Party shall provide to action at the Party defending any such rights under this Section 8.3.8 all reasonable assistance in such enforcement, at such defending Defending Party’s request cost and expense. The defending Although the Defending Party has the right to select counsel of its own choice, it shall keep first consult with the other Party regularly informed and consider in good faith the recommendations of the status and progress of such efforts, and shall reasonably consider the other Party’s comments on . The non-Defending Party shall have the right to join in any applicable action using counsel of its choice at its sole discretion and cost and expense, subject to Section 11.4(c). (c) If the Defending Party is the Lead Defense Party, then the Lead Defense Party has the right to settle any Third Party Invalidity Assertion action [* * *]. If the Defending Party is not the Lead Defense Party, then the Defending Party [* * *]. (d) For the avoidance of doubt, as between the Parties, (i) Regeneron has the sole right, but not the obligation, to control the defense (including any settlement thereof) of any assertion by a Third Party (whether as a defense or as a counterclaim in any infringement action or in a declaratory judgment action or similar action or claim filed by such effortsThird Party) that any Regeneron Background Patent is invalid or unenforceable and (ii) Sanofi has the sole right, but not the obligation, to control the defense (including any settlement thereof) of any assertion by a Third Party (whether as a defense or as a counterclaim in any infringement action or in a declaratory judgment action or similar action or claim filed by such Third Party) that any Sanofi Background Patent is invalid or unenforceable.

Invalidity or Unenforceability Defenses or Actions. In the event that (a) If a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.4.1Sections 7.1, 7.2 or 7.3, that any Ambit Licensed Patent or Program Patent is invalid or unenforceable, or that an interference should be declared with respect to a Licensed Patent, then the Party pursuing such infringement action Parties shall promptly give written notice meet (which meeting may at any Party’s request be by telephone conference or videoconference) to discuss the other Partyresponse to such defense or defense of such counterclaim or action (as applicable) and shall cooperate with one another in such response or defense. Where such allegation is made The Party or Parties that are the plaintiffs 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 underlying suit or other action brought under Section 8.4.1, the against such Third Party with the first right to enforce the Patent Rights at issue shall have the first 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 the provisions of Section 8.4.1 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 intellectual property rights or rights under this Agreement without such other Party’s written consent, not to be unreasonably withheld or delayed. (including step-b) Similarly, if a Third Party asserts, in rights and control over settlement) shall apply. In all other cases, including any a declaratory judgment action or similar action or claim filed by a such Third Party asserting that any Ambit Licensed Patent or Program Patent is invalid or unenforceableunenforceable or that an interference should be declared with respect to a Licensed Patent, Astellas then the Parties shall have promptly meet (which meeting may at any Party’s request be by telephone conference or videoconference) to discuss the first right to defend defense of such action, at Astellas’s expense, action or claim and Ambit will shall cooperate with Astellas, at Astellas’s expense one another in such defense. In The Party that is the event Astellas does not so elect defendant in such claim, suit or action shall have the initial right to defend an against same, provided that such defense shall be conducted in collaboration with the other Parties and a process under which each Party shall have a reasonable opportunity to participate in such defense shall be established, and in any event Acorda shall at all times be permitted to intervene in such defense, at its expense, and provided further that to the extent that any other Party’s intellectual property rights or interests under this Agreement are the subject of, or materially impacted by, such invalidity or unenforceability claim, suit or action, the defending Party shall involve such other Party in all decisions as to such defense, and in any event such defending Party shall not settle or otherwise compromise such defense in any way that adversely affects such other Party’s intellectual property rights or its rights under this Agreement without such other Party’s written consent, not to be unreasonably withheld or delayed. (c) The Party defending any claim or action with respect to any Ambit Licensed Patent or Program Patent under this Section 8.3.87.4 shall be responsible for one hundred percent (100%) of the out-of-pocket and reasonable costs and expenses of any such defenses, it shall so notify Ambit in writingprovided that if Acorda is defending, 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 Acorda may credit such defense or counterclaim if such action is likely costs and expenses against royalties owed to materially adversely affect Astellas’s interests in the applicable Ambit Licensed Patent or Program Patent or rights Institutions 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 Sections 3.2 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 efforts3.3.

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 8.4.110.2.1 or otherwise, that any Ambit Licensed Targacept Patent Rights (other than Targacept Excluded Patent Rights) or Program Joint Patent is Rights are 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 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 the provisions of Section 8.4.1 (including step-shall [********]. Further, if a Third Party or Sublicensee asserts, in rights and control over settlement) shall apply. In all other cases, including any a declaratory judgment action or similar action or claim filed by a such Third Party asserting or Sublicensee, that any Ambit Licensed Targacept Patent Rights (other than Targacept Excluded Patent Rights) or Program Joint Patent is Rights are invalid or unenforceable, Astellas 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 defend settle or otherwise compromise such action, at Astellas’s expense, and Ambit will cooperate with Astellas, at Astellas’s expense claim. If AstraZeneca notifies Targacept in such defense. In the event Astellas writing that it does not so elect wish to respond to or defend an against or settle or otherwise compromise such action with respect to any Ambit Licensed Patent or Program Patent under this Section 8.3.8claim, it shall so notify Ambit in writing, and Ambit Targacept shall have the right right, but not the obligation, through counsel of its choice and at its sole expense, upon written notice to so AstraZeneca, to defend against and control such action, at Ambit’s expenseaction or claim; provided, however, that Ambit Targacept shall obtain the provide written consent notice to AstraZeneca reasonably in advance of Astellas prior to ceasing to defend, settling defend such action or otherwise compromising claim so as to enable AstraZeneca to assume control of 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 effortsit so elects, and shall reasonably consider [********]. Any amounts recovered in connection with any action, claim or suit under Section 10.2.2 shall be allocated between the Parties as provided in Section 10.2.1(e). Any license fees, royalties, milestones or other Party’s comments on any such effortspayments received by Targacept under a license granted to remove an Infringement shall be [********].

Invalidity or Unenforceability Defenses or Actions. In Each Party shall promptly notify the event that other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the Viela Patents by a Third Party and of which such Party becomes aware. Viela shall have the first right, but not the obligation, to defend and control the defense of the validity and enforceability of any Viela-Owned Patent or Sublicensee assertsDevelopment Patent, at its sole cost and expense, using counsel of Viela’s choice, including when such invalidity or unenforceability is raised as a defense or as a counterclaim in any infringement action under Section 8.4.1connection with an Infringement action. The Party defending and controlling the defense referred to as the “Defending Party” and the other Party referred to as the “Assisting Party.” The Assisting Party may participate in such claim, suit or Proceeding with counsel of its choice at its sole cost and expense; provided that any Ambit Licensed Patent the Defending Party shall retain control of the defense in such claim, suit or Program Patent is invalid or unenforceableProceeding. If the Defending Party elects not to defend the applicable Patents in a suit, then the Defending Party pursuing such infringement action shall promptly give written notice to notify the other Assisting Party of such election and the Assisting Party may assume control of the defense of any such claim, suit or Proceeding at its sole cost and expense and will become the Defending Party. Where The Assisting Party in such allegation is made in an oppositionaction shall, reexaminationand shall cause its Affiliates to, 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 assist and co-operate with the first right Defending Party, as such Defending Party may reasonably request from time 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 casestime, including any declaratory judgment action where necessary, furnishing a power of attorney solely for such purpose or similar action joining in, or claim filed by being named as a Third Party asserting that any Ambit Licensed Patent or Program Patent is invalid or unenforceablenecessary party to, Astellas shall have the first right to defend such action, providing access to relevant documents and other evidence and making its employees available at Astellas’s expense, and Ambit will cooperate with Astellas, at Astellas’s expense in such defense. In reasonable business hours; provided that 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 Defending Party shall provide to reimburse the Assisting Party defending any such rights under this Section 8.3.8 all for its reasonable assistance and verifiable out-of-pocket costs and expenses incurred 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 effortsconnection therewith.

Invalidity or Unenforceability Defenses or Actions. In Each Party shall promptly notify the event that other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the Licensed Patents, Joint Patents or EverInsight Patents worldwide, by a Third Party or Sublicensee asserts, as a and of which such Party becomes aware. As between the Parties: (a) VistaGen and EverInsight shall coordinate with each other to defend and control the defense or as a counterclaim of the validity and enforceability of any Joint Patents 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 Territory and share 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 cost and expense thereof; (b) VistaGen shall have the first right right, but not the obligation, 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 settlementthe defense of the validity and enforceability of any Licensed Patents, at its sole cost and expense, using counsel of VistaGen’s choice; (c) 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 EverInsight shall have the first right right, but not the obligation, to defend such actionand control the defense of the validity and enforceability of any EverInsight Patents, at Astellas’s its sole cost and expense, and Ambit will cooperate with Astellasusing counsel of EverInsight’s choice; provided however that, at Astellas’s expense in such defense. In notwithstanding the event Astellas does not so elect to defend an action foregoing, Section 9.4 shall control with respect to any Ambit Licensed such claim that is a Product Infringement or is a counter claim in an enforcement action against a Project Infringement. For purposes of this Section 9.6 (Invalidity or Unenforceability Defenses or Actions), the Party defending and controlling the defense of the validity and enforceability pursuant to the foregoing sentence with respect to a Patent shall be the “Controlling Party”. With respect to any such claim, suit or Program Patent proceeding in the Territory under this Section 8.3.89.6 (Invalidity or Unenforceability Defenses or Actions), it 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 so retain control of the defense in such claim, suit or proceeding. If the Controlling Party elects not to defend the applicable Patents in a suit, then the Controlling Party shall notify Ambit the non-Controlling Party of such election at least sixty (60) days before the time limit, if any, set forth in writingApplicable Laws for defending such actions, and Ambit with the proviso that if the Controlling Party is VistaGen, then, to the extent permitted under the Pherin License, EverInsight shall have the right to so defend such actionright, at Ambit’s expense; providedbut not the obligation, 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 for any such rights under this Section 8.3.8 all reasonable assistance in Invalidity or Unenforceability Defenses or Actions, to assume control of the defense of any such enforcementclaim, suit or proceeding at such defending Party’s request its sole cost and expense. The defending non- Controlling Party shall keep the other Party regularly informed of the status and progress of in such effortsan action shall, and shall cause its Affiliates to, assist and co-operate 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 9.6 (Invalidity or Unenforceability Defenses or Actions), 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 Licensed Patents, EverInsight Patents or Joint Patents licensed under Section 2.1 (License to EverInsight) or Section 2.2 (License to VistaGen), the Controlling Party shall (i) consult with the non-Controlling Party as to the strategy for such activities, (ii) consider in good faith any comments from the other Party’s comments on non-Controlling Party and (iii) keep the non-Controlling Party reasonably informed of any material steps taken and provide copies of all material documents filed, in connection with such effortsdefense, claim or counterclaim.

Invalidity or Unenforceability Defenses or Actions. In Each Party shall promptly notify the event that other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the AstraZeneca Patents, Insmed Patents or Joint Patents by a Third Party, including, without limitation, any declaratory judgment proceeding, inter partes review, post-grant review or other opposition proceeding with respect thereto (an “Invalidity Claim”) of which such Party becomes aware. As between the Parties, (i) Insmed shall have the first right, but not the obligation, to defend and control the defense of the validity and enforceability of the AstraZeneca Patents, the Insmed Patents and the Joint Patents at its sole cost and expense, using counsel of its choice, including, when such invalidity or Sublicensee asserts, unenforceability is raised as a defense or as a counterclaim in connection with an Infringement action initiated pursuant to Section 8.3. For purposes of this Section 8.5, the Party defending the Invalidity Claim pursuant to the foregoing sentence with respect to a Patent shall be the “Controlling Party.” With respect to any infringement action under Section 8.4.1such 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 Ambit Licensed Patent such claim, suit or Program Patent is invalid or unenforceableproceeding, then the non-Controlling Party pursuing may conduct and control the defense of any such infringement action shall promptly give written notice to the other Party. Where such allegation is made in an oppositionclaim, 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 proceeding 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 its sole cost and expense. The defending non-Controlling Party shall keep the other Party regularly informed of the status and progress of in such effortsan 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 8.5, 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 costs and expenses incurred in connection therewith. In connection with any activities with respect to a defense, claim or counterclaim relating to the AstraZeneca Patents, Insmed Patents or Joint Patents pursuant to this Section 8.5, 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 other Party’s comments on 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 effortsdefense, claim or counterclaim.

Invalidity or Unenforceability Defenses or Actions. In Each Party shall promptly notify the event that other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the AstraZeneca Patents by a Third Party or Sublicensee asserts(an “Invalidity Claim”) and of which such Party becomes aware. As between the Parties, Licensee shall have the first right, but not the obligation, to defend and control the defense of the Invalidity Claim at its sole cost and expense, using counsel of Licensee’s choice, including when such Invalidity Claim is raised as a defense or as a counterclaim in connection with an Infringement action initiated pursuant to Section 5.3 (Enforcement of Patents). For purposes of this Section 5.5 (Invalidity or Unenforceability Defenses or Actions), the Party defending the Invalidity Claim pursuant to the foregoing sentence with respect to an AstraZeneca Patent shall be the “Controlling Party.” With respect to any infringement action under Section 8.4.1such Invalidity Claim 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 AstraZeneca Patents in a suit brought in the Territory or otherwise fails to initiate and maintain the defense of any Ambit Licensed Patent such claim, suit or Program Patent is invalid or unenforceableproceeding, then the non-Controlling Party pursuing may conduct and [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. control the defense of any such infringement action shall promptly give written notice to the other Party. Where such allegation is made in an oppositionclaim, 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 proceeding 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 its sole cost and expense. The defending non- Controlling Party shall keep the other Party regularly informed of the status and progress of in such effortsan 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 defense, claim or counterclaim relating to the AstraZeneca Patents pursuant to this Section 5.5 (Invalidity or Unenforceability Defenses or Actions), 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 other Party’s comments on 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 effortsdefense, claim or counterclaim.

Invalidity or Unenforceability Defenses or Actions. In Each Party shall promptly notify the event that other Party in writing of any alleged or threatened assertion of invalidity or unenforceability of any of the Licensed Patents, Joint Patents or EverInsight Patents worldwide, by a Third Party or Sublicensee asserts, as a and of which such Party becomes aware. As between the Parties: (a) VistaGen and EverInsight shall coordinate with each other to defend and control the defense or as a counterclaim of the validity and enforceability of any Joint Patents 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 Territory and share 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 cost and expense thereof; (b) VistaGen shall have the first right right, but not the obligation, 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 settlementthe defense of the validity and enforceability of any Licensed Patents, at its sole cost and expense, using counsel of VistaGen’s choice; (c) 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 EverInsight shall have the first right right, but not the obligation, to defend such actionand control the defense of the validity and enforceability of any EverInsight Patents, at Astellas’s its sole cost and expense, and Ambit will cooperate with Astellasusing counsel of EverInsight’s choice; provided however that, at Astellas’s expense in such defense. In notwithstanding the event Astellas does not so elect to defend an action foregoing, Section 9.4 shall control with respect to any Ambit Licensed such claim that is a Product Infringement or is a counter claim in an enforcement action against a Project Infringement. For purposes of this Section 9.6 (Invalidity or Unenforceability Defenses or Actions), the Party defending and controlling the defense of the validity and enforceability pursuant to the foregoing sentence with respect to a Patent shall be the “Controlling Party”. With respect to any such claim, suit or Program Patent proceeding in the Territory under this Section 8.3.89.6 (Invalidity or Unenforceability Defenses or Actions), it 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 so retain control of the defense in such claim, suit or proceeding. If the Controlling Party elects not to defend the applicable Patents in a suit, then the Controlling Party shall notify Ambit the non-Controlling Party of such election at least sixty (60) days before the time limit, if any, set forth in writingApplicable Laws for defending such actions, and Ambit with the proviso that if the Controlling Party is VistaGen, then, to the extent permitted under the Pherin License, EverInsight shall have the right to so defend such actionright, at Ambit’s expense; providedbut not the obligation, 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 for any such rights under this Section 8.3.8 all reasonable assistance in Invalidity or Unenforceability Defenses or Actions, to assume control of the defense of any such enforcementclaim, suit or proceeding at such defending Party’s request its sole cost and expense. The defending non-Controlling Party shall keep the other Party regularly informed of the status and progress of in such effortsan action shall, and shall cause its Affiliates to, assist and co-operate 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 9.6 (Invalidity or Unenforceability Defenses or Actions), 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 Licensed Patents, EverInsight Patents or Joint Patents licensed under Section 2.1 (License to EverInsight) or Section 2.2 (License to VistaGen), the Controlling Party shall (i) consult with the non-Controlling Party as to the strategy for such activities, (ii) consider in good faith any comments from the other Party’s comments on non-Controlling Party and (iii) keep the non-Controlling Party reasonably informed of any material steps taken and provide copies of all material documents filed, in connection with such effortsdefense, claim or counterclaim.

Invalidity or Unenforceability Defenses or Actions. 15.2.1 In the event that a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.4.114.1, that any Ambit Licensed Patent or Program Joint 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 AstraZeneca shall have the first right right, but not the obligation, through counsel of AstraZeneca’s choosing, at AstraZeneca’s expense, to respond to such defense or defend against such counterclaim (as applicable), including the right, subject to Section 15.4, to settle or otherwise compromise such claim. If AstraZeneca notifies MAP in writing that it does not wish or no longer wishes to respond to such defense or defend against, or settle, such counterclaim (as applicable), which notice AstraZeneca shall provide by the later of (a) the date that is [***] days after AstraZeneca becomes aware of such claim, and (b) the date that AstraZeneca or its Affiliates are no longer in active, bona fide settlement negotiations with respect thereto, then if such defense or counterclaim is asserted in connection with infringement occurring [***], MAP shall have the right, but not the obligation, through counsel of MAP’s choosing, at MAP’s expense, to respond to such defense or defend against such counterclaim (as applicable) at its sole cost and expense, and if such defense or counterclaim is asserted in CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. connection with infringement occurring in [***], MAP shall have the provisions right, but not the obligation, through counsel of MAP’s choosing, at MAP’s expense, to respond to such defense or defend against such counterclaim (as applicable) at its sole cost and expense subject to AstraZeneca’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, which rights of MAP shall include, in each case, the right, subject to Section 8.4.1 (including step-15.4, to settle or otherwise compromise such action or claim. 15.2.2 Similarly, if a Third Party asserts, in rights and control over settlement) shall apply. In all other cases, including any a declaratory judgment action or similar action or claim filed by a such Third Party asserting Party, that any Ambit Licensed Patent or Program Joint Patent is invalid or unenforceable, Astellas 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 to defend such actionright, but not the obligation, through counsel of AstraZeneca’s choosing, at AstellasAstraZeneca’s expense, and Ambit will cooperate with Astellasto defend against such action or claim, at Astellas’s expense including the right, subject to Section 15.4, to settle or otherwise compromise such action or claim. If AstraZeneca notifies MAP in such defense. In the event Astellas writing that it does not so elect wish or no longer wishes to respond to or defend an against, or settle, such action or claim, which notice AstraZeneca shall provide by the later of (a) the date that is [***] days after AstraZeneca becomes aware of such claim, and (b) the date that AstraZeneca or its Affiliates are no longer in active, bona fide settlement negotiations with respect to any Ambit Licensed Patent thereto, then if such action or Program Patent under this Section 8.3.8claim is asserted in connection with infringement occurring within [***], it shall so notify Ambit in writing, and Ambit MAP shall have the right to so defend such actionright, but not the obligation, through counsel of MAP’s choosing, at AmbitMAP’s expense; provided, howeverto defend against such action or claim at its sole cost and expense, that Ambit shall obtain the written consent of Astellas prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim and if such action or claim is likely to materially adversely affect Astellasasserted in connection with infringement occurring in [***], MAP shall have the right, but not the obligation, through counsel of MAP’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 enforcementchoosing, at MAP’s expense, to defend against such defending Partyaction or claim at its sole cost and expense subject to AstraZeneca’s request and expense. The defending Party prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, which rights of MAP shall keep include, in each case, the other Party regularly informed of the status and progress of right, subject to Section 15.4, to settle or otherwise compromise such efforts, and shall reasonably consider the other Party’s comments on any such effortsaction or claim.

Invalidity or Unenforceability Defenses or Actions. (a) In the event that a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.4.18.3.1, that any Ambit Licensed Product Trademark, Licensor Patent, Licensee Patent or Program Joint Patent is invalid or unenforceable, then the Party pursuing enforcing such infringement action Product Trademark or Patent in accordance with Section 8.3 shall promptly give written notice to the other Party. Where defend such allegation is made in an opposition, reexamination, interference a defense or other patent office proceeding, the provisions of Section 8.3.7 shall apply. Where such allegation is made in as a counterclaim to a suit or other action brought under in accordance with 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 expense8.3; provided, howeverthat, that Ambit if Licensee is such enforcing Party, it shall obtain the written consent of Astellas Licensor with respect to the Licensor Patents and the Joint Patents, prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim counterclaim, such consent not to be unreasonably withheld or delayed. (b) 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 Product Trademark, Licensor Patent, Licensee 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, then the Party enforcing such Product Trademark or Patent in accordance with Section 8.3 shall defend such action in accordance with Section 8.3; provided, that, if Licensee is likely such enforcing Party, it shall obtain the written consent of Licensor with respect to materially adversely affect Astellas’s interests in the applicable Ambit Licensed Patent Licensor Patents and the Joint Patents, prior to ceasing to defend, settling or Program Patent otherwise compromising such defense or rights under this Agreement. counterclaim, such consent not to be unreasonably withheld or delayed. (c) Each Party shall provide to the other Party defending all reasonable assistance requested by the other Party in connection with any such rights action, claim or suit under this Section 8.3.8 all reasonable assistance in 8.4.2, including allowing such enforcement, at such defending other Party access to the assisting Party’s request files and expensedocuments and to the assisting Party’s personnel who may have possession of relevant information. The defending In particular, the assisting Party shall keep promptly make available to the other Party, free of charge, all information in its possession or control that it is aware will be reasonably necessary to assist the other Party regularly informed of the status and progress of such efforts, and shall reasonably consider the other Party’s comments on in responding to any such effortsaction, claim or suit. (d) Licensee shall not enter into any settlement of any claim or action under Sections 8.3 or 8.4 without the prior written consent of Licensor (which consent will not unreasonably be withheld, delayed or conditioned) if such settlement includes a finding, stipulation or agreement that any Licensor Patent is invalid or unenforceable, or results in or requires a reduction in the scope or abandonment of a claim or enforceable right in any Licensor Patent.

Invalidity or Unenforceability Defenses or Actions. In the event that If a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.4.15.3, that any Ambit Licensed Core Fluidigm Patent, Collaboration Patent solely owned by Fluidigm or Program Collaboration Patent owned jointly by Fluidigm and Novartis is invalid or unenforceable, then the Party party pursuing such infringement action shall promptly give written notice to the other Partyparty. Where The party pursuing 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 infringement 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 right, but not the obligation, through counsel of its choosing (reasonably acceptable to the other party), to respond to such defense or defend against such counterclaim (as applicable) ); provided, however, that such defending party shall obtain the written consent of the other party prior to settling or otherwise compromising such defense or counterclaim. If the party pursuing such infringement action determines not to respond to such defense or defend against such counterclaim (as applicable), the other party shall, at its sole cost and expense, respond to such defense or defend against such counterclaim (as applicable); provided, however, that such defending party shall obtain the provisions written consent of Section 8.4.1 (including step-the other party prior to settling or otherwise compromising such defense or counterclaim. If a Third Party asserts, in rights and control over settlement) shall apply. In all other cases, including any a declaratory judgment action or similar action or claim filed by a such Third Party asserting Party, that any Ambit Licensed Core Fluidigm Patent, Collaboration Patent solely owned by Fluidigm or Program Collaboration Patent owned jointly by Fluidigm and Novartis is invalid or unenforceableunenforceable (and such action relates to the Primary Field or the Secondary Field), Astellas then the party first becoming aware of such action or claim shall promptly give written notice to the other party. Fluidigm shall have the first right right, but not the obligation, through counsel of its choosing, to defend against 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 or claim with respect to any Ambit Licensed Patent or Program Patent under this Section 8.3.8, it shall so notify Ambit in writingCore Fluidigm Patent, and Ambit Novartis shall have the right first right, but not the obligation, through counsel of its choosing, to so defend against such actionaction or claim with respect to any Collaboration Patent solely owned by Fluidigm or Collaboration Patent owned jointly by Fluidigm and Novartis (such party, at Ambit’s expenseas applicable, the “Defending Party”); provided, however, that Ambit the Defending Party shall obtain the written consent of Astellas the other party prior to settling or otherwise compromising such defense or counterclaim. If the Defending Party determines not to assume such defense, the other party shall, at its sole cost and expense, defend against such claim, suit or action (and shall thereupon become the “Defending Party,” and the prior Defending Party shall become the “other party,” with respect thereto); provided, however, that the Defending Party shall obtain the written consent of the other party 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 disposing of any such rights claim, suit or action. Upon reasonable request by the Defending Party, the other party shall give the Defending Party all reasonable information and assistance with respect to any action defended by the Defending Party under this Section 8.3.8 all reasonable assistance in such enforcement5.4 or any analogous action with respect to the Collaboration Patents solely owned by the Defending Party, at such defending Party’s request and expense. The defending including allowing the Defending Party shall keep access to the other Party regularly informed of the status party’s files and progress of such efforts, documents and shall reasonably consider to the other Partyparty’s comments on personnel who may have possession of relevant information and, if necessary for the Defending Party to defend any legal action under this Section 5.4, joining in the legal action as a party. Fluidigm shall use its reasonable best efforts to obtain any [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. consents required by Third Parties owning Fluidigm Patents licensed to Fluidigm in order for Novartis, when acting as the Defending Party (or as the defending arty in a counterclaim or defense in any infringement action under Section 5.3, as described hereinabove), to defend against such effortsclaim, suit or action, but if Fluidigm is unable to obtain such consents, Novartis may not act as the Defending Party with respect to such Fluidigm Patents.