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

Invalidity or Unenforceability Defenses or Actions. 8.5.1. As between the Parties, (a) (1) prior to the Inclusion Date with respect to a Research Target or a ROFN Target (and subject to clause (2) below), [***] shall have the first right, but not the obligation, to defend (including the right to settle) and control the defense of the validity and enforceability of the Morphic Patents and Joint Patents relating to such Research Target or ROFN Target and (2) from and after the Inclusion Date with respect to an Included Target, [***] shall have the first right, but not the obligation, to defend (including the right to settle) and control the defense of the validity and enforceability of the Morphic Patents and Joint Patents relating to such Included Target, (b) [***] shall have the sole right, but not the obligation, to defend (including the right to settle) and control the defense of the validity and enforceability of all AbbVie Patents, in each case ((a) and (b)), at such Party’s sole cost and expense in the Territory and using counsel of its own choice. Notwithstanding this Section 8.5.1, the Party who prosecutes or manages a litigation with respect to an Infringement action shall be responsible for defending any invalidity or unenforceability challenges in connection with such Infringement action. If [***] or its designee elects not to defend or control the defense of a Morphic Patent or Joint Patent in a suit brought in the Territory or otherwise fails to initiate and maintain the defense of any such claim, suit or proceeding, then [***] may conduct and control the defense of any such claim, suit or proceeding at its sole cost and expense.