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

Invalidity or Unenforceability Defenses or Actions. (a) In the event that a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 7.3.1, that any Product Trademark, GPC Biotech Patent, Yakult Patent or Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. With respect to the Product Trademarks, GPC Biotech Patents and the Joint Patents, as between the Parties, 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 Yakult is pursuing the applicable infringement action under Section 7.3.1, Yakult shall allow GPC Biotech to control such response or defense (as applicable). If GPC Biotech determines not to respond to such defense or defend against such counterclaim (as applicable) with respect to the Product Trademarks, GPC Biotech Patents or Joint Patents in Japan, then Yakult shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such defense or counterclaim is likely or could reasonably be expected to have a material impact in the GPC Biotech Territory, Yakult shall obtain the written consent of GPC Biotech prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed. With respect to the Yakult Patents, as between the Parties, Yakult 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 7.3.1, GPC Biotech shall allow Yakult to control such response or defense (as applicable). If Yakult determines not to respond to such defense or defend against such counterclaim (as applicable) with respect to the Yakult Patents in the Territory, then GPC Biotech shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such defense or counterclaim is likely or could reasonably be expected to have a material impact in Japan, GPC Biotech shall obtain the written consent of Yakult prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed. 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. (b) Similarly, if a Third Party asserts, in a declaratory judgment action or similar action or claim filed by such Third Party, that any Product Trademark, GPC Biotech Patent, Yakult 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. As between the Parties, with respect to Product Trademarks, GPC Biotech Patents and Joint Patents, GPC *** Confidential treatment requested. Biotech shall have the first right, but not the obligation, through counsel of its choosing, to defend against such action or claim. If GPC Biotech determines not to assume such defense with respect to the Product Trademarks, GPC Biotech Patents or Joint Patents in Japan, then Yakult shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such action or claim is likely or could reasonably be expected to have a material impact in the GPC Biotech Territory, Yakult shall obtain the written consent of GPC Biotech prior to ceasing to defend, settling or otherwise compromising such action or claim, such consent not to be unreasonably withheld or delayed. As between the Parties, with respect to Yakult Patents, Yakult shall have the first right, but not the obligation, through counsel of its choosing, to defend against such action or claim. If Yakult determines not to assume such defense with respect to the Yakult Patents in the Territory, then GPC Biotech shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such action or claim is likely or could reasonably be expected to have a material impact in Japan, GPC Biotech shall obtain the written consent of Yakult prior to ceasing to defend, settling or otherwise compromising such action or claim, such consent not to be unreasonably withheld or delayed. Any costs and expenses with respect to such defense shall be borne by the Party defending against such action or claim. (c) Each Party shall provide to the other Party all reasonable assistance requested by the other Party in connection with any action, claim or suit under this Section 7.4.2, including allowing such other Party access to the assisting Party’s files and documents and to the assisting Party’s personnel who may have possession of relevant information. In particular, the assisting Party shall 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 in responding to any such action, claim or suit.

Invalidity or Unenforceability Defenses or Actions. (a) In the event that a Third Party asserts, or Sublicensee asserts as a defense or as a counterclaim in any infringement Infringement action under Section 7.3.1, 7.12.1 that any Product TrademarkConsensus Patent Rights, GPC Biotech PatentNon-Consensus Targacept Program Patent Rights, Yakult AstraZeneca Patent Rights or Joint AstraZeneca Program Patent is Rights are invalid or unenforceable, then the Party pursuing such infringement Infringement action shall promptly give written notice to the other Party. With respect to the Product Trademarks, GPC Biotech Patents and the Joint Patents, as As between the Parties, GPC Biotech AstraZeneca shall have the first right, but not the obligation, through counsel of its choosingchoice and at its sole expense (subject to the last sentence of this Section 7.12.2), 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; provided that: (a) andnotwithstanding the foregoing, if Yakult is pursuing no such settlement or other compromise shall impose any restriction or obligation on or admit fault of Targacept or concede, directly or indirectly, the applicable infringement action invalidity or enforceability of, or materially ******** or ******** the ******** of, any Non-Consensus Targacept Program Patent Rights; and (b) with respect to any claim of invalidity or unenforceability of any Non-Consensus Targacept Program Patent Rights, AstraZeneca shall collaborate closely with Targacept with respect to the defense of such claim and consider in good faith, and not unreasonably reject or act contrary to, Targacept’s advice and suggestions with respect thereto taking into account Targacept’s interests under Section 7.3.1, Yakult shall allow GPC Biotech such Non-Consensus Targacept Program Patent Rights that are not related to control such response Compounds or defense (as applicable)Licensed Products. If GPC Biotech determines AstraZeneca notifies Targacept in writing that it does not wish to respond to such defense or defend against against, or settle or otherwise compromise, such counterclaim (as applicable) with respect to ), Targacept shall have the Product Trademarksright, GPC Biotech Patents or Joint Patents in Japanbut not the obligation, then Yakult shall, through counsel of its choice and at its sole cost and expenseexpense (subject to the last sentence of this Section 7.12.2), have the right upon written notice to AstraZeneca, to respond to such defense or defend against such counterclaim (as applicable); provided, however, provided that Targacept shall use diligent efforts to the extent that provide written notice to AstraZeneca sufficiently in advance of ceasing to defend, settling defend or otherwise compromising prosecute such defense or counterclaim is likely so as to enable AstraZeneca to assume control of such defense or could reasonably be expected to have a material impact in the GPC Biotech Territory, Yakult counterclaim if it so elects and shall obtain the written consent of GPC Biotech AstraZeneca (not to be unreasonably withheld, conditioned or delayed and, absent compelling reasons affecting both Parties in substantially the same manner, not to be withheld, conditioned or delayed unless AstraZeneca provides evidence satisfactory to Targacept, acting reasonably, that such settlement or compromise is not in the best interests of the Development and Commercialization, globally, of the Lead Compound and Licensed Products that are comprised of or contain the Lead Compound), prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed. With respect to the Yakult Patents, as between the Parties, Yakult 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 7.3.1, GPC Biotech shall allow Yakult to control such response or defense (as applicable). If Yakult determines not to respond to such defense or defend against such counterclaim (as applicable) with respect to the Yakult Patents in the Territory, then GPC Biotech shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such defense or counterclaim is likely or could reasonably be expected to have a material impact in Japan, GPC Biotech shall obtain the written consent of Yakult prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed. 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. (b) SimilarlyFurther, if a Third Party asserts, in a declaratory judgment action or similar action or claim filed by such Third Party, that any Product TrademarkConsensus Patent Rights, GPC Biotech PatentNon-Consensus Targacept Program Patent Rights, Yakult AstraZeneca Patent Rights or Joint AstraZeneca Program Patent is Rights are invalid or unenforceable, then the Party first becoming aware of such action or claim shall promptly give written notice to the other Party. As between the Parties, with respect to Product Trademarks, GPC Biotech Patents and Joint Patents, GPC *** Confidential treatment requested. Biotech AstraZeneca shall have the first right, but not the obligation, through counsel of its choosingchoice, and at its sole expense (subject to the last sentence of this Section 7.12.2), to defend against such action or claim. If GPC Biotech determines not , including the right to assume settle or otherwise compromise such defense claim; provided that: (i) notwithstanding the foregoing, no such settlement or other compromise shall impose any restriction or obligation on or admit fault of Targacept or concede, directly or indirectly, the invalidity or enforceability of, or materially ******** or ******** the ******** of, any Non-Consensus Targacept Program Patent Rights; and (ii) with respect to any action or claim asserting the invalidity or unenforceability of any Non-Consensus Targacept Program Patent Rights, AstraZeneca shall collaborate closely with Targacept with respect to the Product Trademarks, GPC Biotech Patents or Joint Patents in Japan, then Yakult shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that to the extent that ceasing to defend, settling or otherwise compromising defense of such action or claim is likely and consider in good faith Targacept’s advice and suggestions, and not unreasonably reject or could reasonably be expected act contrary to, with respect thereto taking into account Targacept’s interests under such Non-Consensus Targacept Program Patent Rights that are not related to have a material impact Compounds or Licensed Products. If AstraZeneca notifies Targacept in the GPC Biotech Territory, Yakult shall obtain the written consent of GPC Biotech prior writing that it does not wish to ceasing respond to defend, settling or defend against or settle or otherwise compromising compromise such action or claim, such consent not to be unreasonably withheld or delayed. As between the Parties, with respect to Yakult Patents, Yakult Targacept shall have the first right, but not the obligation, through counsel of its choosingchoice and at its sole expense (subject to the last sentence of this Section 7.12.2), upon written notice to AstraZeneca, to defend against such action or claim. If Yakult determines not to assume such defense with respect to the Yakult Patents in the Territory, then GPC Biotech shall, at its sole cost and expense, have the right to defend against control such action or claim; provided, however, provided that Targacept shall use diligent efforts to the extent that provide written notice to AstraZeneca sufficiently in advance of ceasing to defend, settling or otherwise compromising defend such action or claim is likely or could reasonably be expected so as to have a material impact in Japan, GPC Biotech enable AstraZeneca to assume control of such defense if it so elects and shall obtain the written consent of Yakult AstraZeneca (not to be unreasonably withheld, conditioned or delayed and, absent compelling reasons affecting both Parties in substantially the same manner, not to be withheld, conditioned or delayed unless AstraZeneca provides evidence satisfactory to Targacept, acting reasonably, that such settlement or compromise is not in the best interests of the Development and Commercialization, globally, of the Lead Compound and Licensed Products that are comprised of or contain the Lead Compound) prior to ceasing to defend, settling or otherwise compromising such action or claim, such consent not to be unreasonably withheld or delayed. Any costs and expenses with respect to such defense shall be borne by the Party defending against such action or claim. (c) Each Party shall provide to the other Party all reasonable assistance requested by the other Party amounts recovered in connection with any action, claim or suit under this Section 7.4.2, including allowing such other Party access to 7.12.2 shall be allocated between the assisting Party’s files and documents and to the assisting Party’s personnel who may have possession of relevant information. In particular, the assisting Party shall promptly make available to the other Party, free of charge, all information Parties as provided in its possession or control that it is aware will be reasonably necessary to assist the other Party in responding to any such action, claim or suitSection 7.12.1(g).

Invalidity or Unenforceability Defenses or Actions. (a) In the event that If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 7.3.15.3, that any Product Trademark, GPC Biotech [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. Core Fluidigm Patent, Yakult Collaboration Patent solely owned by Fluidigm or Joint 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. With respect to the Product Trademarks, GPC Biotech Patents and the Joint Patents, as between the Parties, GPC Biotech The party pursuing such infringement action shall have the first right, but not the obligation, through counsel of its choosing, to respond to such defense or defend against such counterclaim choosing (as applicable) and, if Yakult is pursuing the applicable infringement action under Section 7.3.1, Yakult shall allow GPC Biotech to control such response or defense (as applicable). If GPC Biotech determines not to respond to such defense or defend against such counterclaim (as applicable) with respect reasonably acceptable to the Product Trademarksother party), GPC Biotech Patents or Joint Patents in Japan, then Yakult shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such defense or counterclaim is likely or could reasonably be expected to have a material impact in the GPC Biotech Territory, Yakult defending party shall obtain the written consent of GPC Biotech the other party prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, . If the party pursuing such consent not to be unreasonably withheld or delayed. With respect to the Yakult Patents, as between the Parties, Yakult 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 7.3.1, GPC Biotech shall allow Yakult to control such response or defense (as applicable). If Yakult determines not to respond to such defense or defend against such counterclaim (as applicable) with respect to ), the Yakult Patents in the Territory, then GPC Biotech other party shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such defense or counterclaim is likely or could reasonably be expected to have a material impact in Japan, GPC Biotech defending party shall obtain the written consent of Yakult the other party prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed. 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. (b) Similarly, if If a Third Party asserts, in a declaratory judgment action or similar action or claim filed by such Third Party, that any Product Trademark, GPC Biotech Core Fluidigm Patent, Yakult Collaboration Patent solely owned by Fluidigm or Joint Collaboration Patent owned jointly by Fluidigm and Novartis is invalid or unenforceableunenforceable (and such action relates to the Primary Field or the Secondary Field), then the Party party first becoming aware of such action or claim shall promptly give written notice to the other Partyparty. As between the Parties, with respect to Product Trademarks, GPC Biotech Patents and Joint Patents, GPC *** Confidential treatment requested. Biotech Fluidigm shall have the first right, but not the obligation, through counsel of its choosing, to defend against such action or claim. If GPC Biotech determines not to assume such defense claim with respect to the Product Trademarksany Core Fluidigm Patent, GPC Biotech Patents or Joint Patents in Japan, then Yakult shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such action or claim is likely or could reasonably be expected to have a material impact in the GPC Biotech Territory, Yakult shall obtain the written consent of GPC Biotech prior to ceasing to defend, settling or otherwise compromising such action or claim, such consent not to be unreasonably withheld or delayed. As between the Parties, with respect to Yakult Patents, Yakult Novartis shall have the first right, but not the obligation, through counsel of its choosing, to defend against such action or claimclaim with respect to any Collaboration Patent solely owned by Fluidigm or Collaboration Patent owned jointly by Fluidigm and Novartis (such party, as applicable, the “Defending Party”); provided, however, that the Defending Party shall obtain the written consent of the other party prior to settling or otherwise compromising such defense or counterclaim. If Yakult the Defending Party determines not to assume such defense with respect to defense, the Yakult Patents in the Territory, then GPC Biotech other party shall, at its sole cost and expense, have the right to defend against such claim, suit or action or claim(and shall thereupon become the “Defending Party,” and the prior Defending Party shall become the “other party,” with respect thereto); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such action or claim is likely or could reasonably be expected to have a material impact in Japan, GPC Biotech Defending Party shall obtain the written consent of Yakult the other party prior to ceasing to defend, settling or otherwise compromising disposing of any such action or claim, such consent not to be unreasonably withheld suit or delayedaction. Any costs Upon reasonable request by the Defending Party, the other party shall give the Defending Party all reasonable information and expenses assistance with respect to such defense shall be borne any action defended by the Defending Party defending against such action or claim. (c) Each Party shall provide to the other Party all reasonable assistance requested by the other Party in connection with any action, claim or suit under this Section 7.4.25.4 or any analogous action with respect to the Collaboration Patents solely owned by the Defending Party, including allowing such other the Defending Party access to the assisting Partyother party’s files and documents and to the assisting Partyother party’s personnel who may have possession of relevant informationinformation 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. In particularFluidigm shall use its reasonable best efforts to obtain any consents required by Third Parties owning Fluidigm Patents licensed to Fluidigm in order for Novartis, when acting as the assisting Defending Party shall promptly make available (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 claim, 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. [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect 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 in responding to any such action, claim or suitomitted portions.

Invalidity or Unenforceability Defenses or Actions. (a) In the event that If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 7.3.1, that any Product Trademark, GPC Biotech Patent, Yakult Patent 5.2 or Joint Patent is invalid claim or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. With respect to the Product Trademarks, GPC Biotech Patents and the Joint Patents, as between the Parties, 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 Yakult is pursuing the applicable infringement action asserted under Section 7.3.15.3, Yakult shall allow GPC Biotech to control such response or defense (as applicable). If GPC Biotech determines not to respond to such defense or defend against such counterclaim (as applicable) with respect to the Product Trademarks, GPC Biotech Patents or Joint Patents in Japan, then Yakult shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such defense or counterclaim is likely or could reasonably be expected to have a material impact in the GPC Biotech Territory, Yakult shall obtain the written consent of GPC Biotech prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed. With respect to the Yakult Patents, as between the Parties, Yakult 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 7.3.1, GPC Biotech shall allow Yakult to control such response or defense (as applicable). If Yakult determines not to respond to such defense or defend against such counterclaim (as applicable) with respect to the Yakult Patents in the Territory, then GPC Biotech shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such defense or counterclaim is likely or could reasonably be expected to have a material impact in Japan, GPC Biotech shall obtain the written consent of Yakult prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed. 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. (b) Similarly, if a Third Party asserts, in a declaratory judgment action or similar action or claim filed by such Third Party, in any such case, that any Product Trademark, GPC Biotech Patent, Yakult Licensed Patent or Joint Assigned Patent is invalid or unenforceableunenforceable (an “Invalidity Claim”), then the Party pursuing such infringement action, or the Party first becoming aware obtaining knowledge of such action or claim declaratory judgment action, as the case may be, shall promptly give written notice thereof to the other Party. As between the Parties, with With respect to Product Trademarks, GPC Biotech the Licensed Patents and Joint or Assigned Patents, GPC *** Confidential treatment requested. Biotech Buyer shall have the first initial right, but not the obligation, through counsel of its choosing, to defend against such action or claim. If GPC Biotech determines not to assume such defense with respect to the Product TrademarksInvalidity Claim, GPC Biotech Patents or Joint Patents in Japan, then Yakult shall, at its sole cost and expense, shall have the right to defend against control settlement of such action or claim; providedInvalidity Claim, howeverincluding the right to grant any Third Party rights and licenses necessary to conduct activities under the Licensed Patents and/or Assigned Patents. If Buyer defends such Invalidity Claim, that to the extent that ceasing to defend, settling or otherwise compromising all costs and expenses of defending such action or claim shall be [***]. Seller shall assist and cooperate with Buyer as Buyer may reasonably request, [***], from time to time in connection with its activities set forth in this Section 5.4, including by providing reasonable access to relevant documents and other evidence and making its employees available at reasonable business hours. In connection with any such defense or claim or counterclaim, Buyer shall consider in good faith any comments from Seller and shall keep Seller reasonably informed of any steps taken, and shall provide copies of material documents filed, in connection with such defense, claim or counterclaim, excluding documents that are subject to a protective order. With respect to the Licensed Patents, if Buyer does not assume the defense of any such Invalidity Claim by the date that is likely or could reasonably be expected to have a material impact in the GPC Biotech Territory, Yakult shall obtain the written consent of GPC Biotech [***] prior to ceasing any required answer or response to defendsuch Invalidity Claim, settling or otherwise compromising such action or claim, such consent not to be unreasonably withheld or delayed. As between the Parties, with respect to Yakult Patents, Yakult then Seller shall have the first right, but not the obligation, through counsel of its choosingto undertake such defense, [***], and in such case Buyer shall assist and cooperate with Seller as Seller may reasonably request, [***], from time to defend against such action or claim. If Yakult determines not to assume such defense with respect to the Yakult Patents in the Territory, then GPC Biotech shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such action or claim is likely or could reasonably be expected to have a material impact in Japan, GPC Biotech shall obtain the written consent of Yakult prior to ceasing to defend, settling or otherwise compromising such action or claim, such consent not to be unreasonably withheld or delayed. Any costs and expenses with respect to such defense shall be borne by the Party defending against such action or claim. (c) Each Party shall provide to the other Party all reasonable assistance requested by the other Party time in connection with its activities set forth in this Section 5.4, including by providing reasonable access to relevant documents and other evidence and making its employees available at reasonable business hours. In connection with any actionsuch defense or claim or counterclaim, Seller shall consider in good faith any comments from Buyer and shall keep Buyer reasonably informed of any steps taken, and shall provide copies of material documents filed, in connection with such defense, claim or suit under this Section 7.4.2counterclaim, including allowing such other Party access excluding documents that are subject to the assisting Party’s files and documents and to the assisting Party’s personnel who may have possession of relevant information. In particular, the assisting Party shall 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 in responding to any such action, claim or suita protective order.