Common use of Patent and Trademark Enforcement Clause in Contracts

Patent and Trademark Enforcement. 6.3.1 If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such activity (an “Infringement”) by a Third Party with respect to the Licensed Products, such Party shall promptly notify the other Party in writing and shall promptly provide such other Party with available evidence of such Infringement. 6.3.2 DUSA shall have the first right, but not the duty, to institute, prosecute, and control any action or proceeding with respect to an Infringement based on any DUSA Technology. If DUSA (or its designee) does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within thirty (30) days after a receipt of evidence of the Infringement, River’s Edge shall have the right, but not the duty, to institute, prosecute, and control any action or proceeding with respect to such Infringement. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all necessary and proper documents, take such actions as shall be appropriate to allow the other Party to institute, prosecute, and control such Infringement actions and shall otherwise cooperate in the institution and prosecution of such actions (including, without limitation, consenting to being named as a nominal party thereto). Any award, damages or other monetary awards recovered (whether by way of settlement or otherwise) shall be applied first to reimburse both Parties for all costs and expenses incurred by the Parties with respect to such action on a (A) if DUSA has instituted and maintained such action alone, DUSA shall be entitled to retain such remaining funds; (B) if River’s Edge has instituted and maintained such action alone, River’s Edge shall be entitled to retain such remaining funds, but shall pay DUSA a royalty, as if such remaining funds constituted Net Sales made within the month the funds are received; or (C) if the Parties have cooperated in instituting and maintaining such action, the Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such action.

Patent and Trademark Enforcement. 6.3.1 (a) If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such activity claim (an “"Infringement”") by a Third Party with respect to any Product or Product-related trademarks within the Licensed ProductsTerritory, such Party shall promptly notify the other Party in writing and shall promptly provide such other Party with available evidence of such Infringement. 6.3.2 DUSA shall have the first right, but not the duty, to institute, prosecute, and control any action or proceeding with respect to an Infringement based on any DUSA Technology. If DUSA (or its designeeb) does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within thirty (30) days after a receipt of evidence of the Infringement, River’s Edge SkyePharma shall have the right, but not the duty, to instituteinstitute patent Infringement actions against Third Parties based on any Product in the Territory. If SkyePharma does not institute an Infringement proceeding against an offending Third Party within [Confidential Information Has Been Omitted And Furnished Separately To The Securities And Exchange Commission] days of learning of such Infringement, prosecuteEndo shall have the right, and control any but not the duty, to institute such an action or proceeding with respect to any Infringement by such InfringementThird Party. Neither Party may enter into any settlement, consent judgment or other voluntary final disposition of such action which adversely affects any Product, SkyePharma IP, SkyePharma Product Patent, SkyePharma Product IP or Invention without the prior written consent of the other Party which consent shall not be unreasonably withheld. The costs and expenses of any such action (including reasonable fees of attorneys and other professionals) shall be borne shared equally by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writingParties. Each Party shall execute all necessary and proper documents, take such actions as shall be appropriate to allow the other Party to institute, prosecute, institute and control prosecute such Infringement actions and shall otherwise cooperate in the institution and prosecution of such actions (including, without limitation, including consenting to being named as a nominal party thereto). Each Party prosecuting any such Infringement actions shall keep the other Party reasonably informed as to the status of such actions. Any award, damages or other monetary awards recovered award paid by Third Parties as a result of such an Infringement action (whether by way of settlement or otherwise) shall be applied first to reimburse both the Parties for all costs and expenses incurred by the Parties with respect to such action on aa pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be deemed to Net Sales for the Product involved in such action and allocated between the Parties accordingly. (Ac) if DUSA has instituted and maintained Endo shall have the right, but not the duty, to institute trademark Infringement actions against Third Parties based on any Product-related trademarks in the Territory. If Endo does not institute an Infringement proceeding against an offending Third Party within [Confidential Information Has Been Omitted And Furnished Separately To The Securities And Exchange Commission] days of learning of such Infringement, SkyePharma shall have the right, but not the duty, to institute such an action with respect to any Infringement by such Third Party. Neither Party may enter into any settlement, consent judgment or other voluntary final disposition of such action alone, DUSA which adversely affects any Product-related trademark without the prior written consent of the other Party which consent shall not be unreasonably withheld. The costs and expenses of any such action (including reasonable fees of attorneys and other professionals) shall be entitled shared equally by the Parties. Each Party shall execute all necessary and proper documents, take such actions as shall be appropriate to retain allow the other Party to institute and prosecute such remaining funds; Infringement actions and shall otherwise cooperate in the institution and prosecution of such actions (Bincluding consenting to being named as a nominal party thereto). Each Party prosecuting any such Infringement actions shall keep the other Party reasonably informed as to the status of such actions. Any award paid by Third Parties as a result of such an Infringement action (whether by way of settlement or otherwise) if River’s Edge has instituted shall be applied first to reimburse the Parties for all costs and maintained expenses incurred by the Parties with respect to such action aloneon a pro rata basis and, River’s Edge if after such reimbursement any funds shall remain from such award, they shall be entitled deemed to retain such remaining funds, but shall pay DUSA a royalty, as if such remaining funds constituted be Net Sales made within for the month the funds are received; or (C) if Product involved in such action and allocated between the Parties have cooperated in instituting and maintaining such action, the Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such actionaccordingly.

Patent and Trademark Enforcement. 6.3.1 8.3.1 If either Party learns gains knowledge of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such activity claim, including an ANDA filing (an “"Infringement”) by a Third Party with respect to the Licensed ProductsJagotec Technology or the Jagotec Marks within the Territory, such Party shall promptly notify the other Party in writing and shall promptly provide such other Party with available evidence details and information of such Infringement. 6.3.2 DUSA 8.3.2 In connection with an ANDA filing which may adversely affect sales of the Product, Kos shall have the first right, but not the duty, to institute, prosecute, and control any action institute Infringement actions or proceeding with respect to make objections against such Third Party filing the ANDA. If Kos does not institute an Infringement based on any DUSA Technology. If DUSA (actions or its designee) does not secure actual cessation otherwise object to such ANDA filing within **** of when such infringement or institute an infringement proceeding against an offending Third Party within thirty (30) days after a receipt of evidence of the InfringementANDA filing is made, River’s Edge Jagotec shall have the right, but not the dutyobligation, to institute, prosecute, and control any institute Infringement action or proceeding make objections with respect to such ANDA filing by such Third Party. 8.3.3 Jagotec shall have the first right, but not the duty, to institute Infringement actions (other than those covered by Section 8.3.2) against Third Parties based on any Jagotec Technology or any Jagotec Mxxx owned by Jagotec or any of its Affiliates. If Jagotec does not secure actual cessation of such Infringement (except by granting said Third Party a license under the infringed Jagotec Technology, which such license shall not be granted without Kos’ written consent) or institute an Infringement proceeding against an offending Third Party within **** of learning of such Infringement, Kos shall have the right, but not the obligation, to institute such an action with respect to any Infringement by such Third Party, provided that, in no event shall Kos enter into any settlement, consent judgment or other voluntary final disposition of such action which adversely affects the Product, any Jagotec Technology or any Jagotec Mxxx without the prior written consent of Jagotec. The costs and expenses If Kos chooses not to act within **** of obtaining such right, the right to institute Infringement actions against Third Parties revert back to Jagotec. 8.3.4 Each Party prosecuting any such action Infringement actions pursuant to Section 8.3.2 or 8.3.3 (including fees also referred to herein as “an Infringement action”) shall keep the other Party reasonably informed as to the status of attorneys such actions including, but not limited to, providing the other Party with copies of all pleadings and other professionals) shall be borne by material documents filed with the court and will consider reasonable input from the other Party instituting during the action, or, if course of the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writingproceedings. Each Party shall cooperate with the other Party and shall execute all necessary and proper documents, take such actions as shall be appropriate to allow the other Party to institute, prosecute, institute and control prosecute such Infringement actions and shall otherwise cooperate in the institution and prosecution of such actions (including, without limitation, consenting to being named as a nominal party thereto). . 8.3.5 Any costs and expenses associated with such an Infringement action, including fees for attorneys and other professionals, and any award, damages or other monetary awards recovered including enhanced damages, paid by such Third Parties as a result of any such Infringement action (whether by way of settlement or otherwise) shall first be applied first used to reimburse both Parties for all costs and expenses incurred by the Parties with respect to such action on a (A) if DUSA has Party that instituted and maintained such action alonealone for all costs and expenses, DUSA including reasonable fees for attorneys and professionals, incurred for instituting and maintaining such action, and any award remaining shall be entitled to retain such remaining funds; (B) if River’s Edge has instituted and maintained such action alone, River’s Edge shall be entitled to retain such remaining funds, but shall pay DUSA a royalty, as if such remaining funds constituted Net Sales made within divided evenly between the month Parties. To the funds are received; or (C) if extent that the Parties have cooperated in instituting and maintaining such action, the Parties shall allocate such remaining funds share costs and expenses, including reasonable fees for attorneys and professionals, equally and shall apportion any awards between themselves in a manner commensurate with each Party’s pro-rata share of the same proportion as they have agreed to bear the costs and expenses of in instituting and maintaining such action. After the recovery of all such costs by both Parties, any award remaining thereafter shall be shared as follows: (a) Except as otherwise provided in Section 8.3.5(b), any award remaining thereafter shall be divided between the Parties with **** to Kos and **** to Jagotec. (b) Notwithstanding the foregoing and anything to the contrary contained herein, in the event that any portion of any award is specifically attributed by a court (or agreed upon in a settlement) to lost sales, such portion shall be shared by the Parties as if such amount constituted Net Sales in the Calendar Year in which such award is finally awarded by the court (or such settlement entered into), and any remaining portion of any such award shall be shared by the Parties equally.

Patent and Trademark Enforcement. 6.3.1 (a) If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such activity claim (an “Infringement”) by a Third Party with respect to any Product or Product-related trademarks within the Licensed ProductsTerritory, such Party shall promptly notify the other Party in writing and shall promptly provide such other Party with available evidence of such Infringement. 6.3.2 DUSA shall have the first right, but not the duty, to institute, prosecute, and control any action or proceeding with respect to an Infringement based on any DUSA Technology. If DUSA (or its designeeb) does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within thirty (30) days after a receipt of evidence of the Infringement, River’s Edge SkyePharma shall have the right, but not the duty, to instituteinstitute patent Infringement actions against Third Parties based on any Product in the Territory. If SkyePharma does not institute an Infringement proceeding against an offending Third Party within *** days of learning of such Infringement, prosecuteEndo shall have the right, and control any but not the duty, to institute such an action or proceeding with respect to any Infringement by such InfringementThird Party. Neither Party may enter into any settlement, consent judgment or other voluntary final disposition of such action which adversely affects any Product, SkyePharma IP, SkyePharma Product Patent, SkyePharma Product IP or Invention without the prior written consent of the other Party which consent shall not be unreasonably withheld. The costs and expenses of any such action (including reasonable fees of attorneys and other professionals) shall be borne shared equally by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writingParties. Each Party shall execute all necessary and proper documents, take such actions as shall be appropriate to allow the other Party to institute, prosecute, institute and control prosecute such Infringement actions and shall otherwise cooperate in the institution and prosecution of such actions (including, without limitation, including consenting to being named as a nominal party thereto). Each Party prosecuting any such Infringement actions shall keep the other Party reasonably informed as to the status of such actions. Any award, damages or other monetary awards recovered award paid by Third Parties as a result of such an Infringement action (whether by way of settlement or otherwise) shall be applied first to reimburse both the Parties for all costs and expenses incurred by the Parties with respect to such action on aa pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be deemed to Net Sales for the Product involved in such action and allocated between the Parties accordingly. (Ac) if DUSA has instituted and maintained Endo shall have the right, but not the duty, to institute trademark Infringement actions against Third Parties based on any Product-related trademarks in the Territory. If Endo does not institute an Infringement proceeding against an offending Third Party within *** days of learning of such Infringement, SkyePharma shall have the right, but not the duty, to institute such an action with respect to any Infringement by such Third Party. Neither Party may enter into any settlement, consent judgment or other voluntary final disposition of such action alone, DUSA which adversely affects any Product-related trademark without the prior written consent of the other Party which consent shall not be unreasonably withheld. The costs and expenses of any such action (including reasonable fees of attorneys and other professionals) shall be entitled shared equally by the Parties. Each Party shall execute all necessary and proper documents, take such actions as shall be appropriate to retain allow the other Party to institute and prosecute such remaining funds; Infringement actions and shall otherwise cooperate in the institution and prosecution of such actions (Bincluding consenting to being named as a nominal party thereto). Each Party prosecuting any such Infringement actions shall keep the other Party reasonably informed as to the status of such actions. Any award paid by Third Parties as a result of such an Infringement action (whether by way of settlement or otherwise) if River’s Edge has instituted shall be applied first to reimburse the Parties for all costs and maintained expenses incurred by the Parties with respect to such action aloneon a pro rata basis and, River’s Edge if after such reimbursement any funds shall remain from such award, they shall be entitled deemed to retain such remaining funds, but shall pay DUSA a royalty, as if such remaining funds constituted be Net Sales made within for the month the funds are received; or (C) if Product involved in such action and allocated between the Parties have cooperated in instituting and maintaining such action, the Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such actionaccordingly.