Common use of Patent Enforcement and Defense Clause in Contracts

Patent Enforcement and Defense. (a) Each Party shall promptly notify the other Party (but in any case no later than [***] after becoming aware) of any alleged or threatened infringement by a Third Party of any of the RevMed Licensed Patents or Joint Program Patents, and RevMed shall promptly notify Sanofi (but in any case no later than [***] after becoming aware) of any alleged or threatened infringement by a Third Party of any of the Sanofi Sole Program Patents, in each case including (i) any such alleged or threatened infringement on account of a Third Party’s manufacture, use or sale of a Product in the Field or (ii) any “patent certification” filed in the United States under 21 U.S.C. §355(b)(2) or 21 U.S.C. §355(j)(2) or similar provisions in other jurisdictions in connection with an ANDA (an Abbreviated New Drug Application in the United States or a comparable application for Regulatory Approval under Applicable Law in any country other than the United States) or other MAA for a Product in the Field and (iii) any declaratory judgment action filed by a Third Party that is developing, manufacturing or commercializing a Product in the Field alleging the invalidity, unenforceability or non-infringement of any of the RevMed Licensed Patents, Joint Program Patents or Sanofi Sole Program Patents ((i)-(iii), collectively, “Product Infringement”). (b) Sanofi, at its sole cost and expense, shall have the sole and exclusive right, but not the obligation, to bring (or defend) and control any legal action in connection with any Product Infringement at its own expense, as it reasonably determines appropriate. (c) RevMed, at its sole cost and expense, shall have the sole and exclusive right to enforce the RevMed Licensed Patents for any infringement that is not a Product Infringement at its own expense as it reasonably determines appropriate. Each Party shall have the right to enforce the Joint Program Patents for any infringement that is not a Product Infringement at its own expense as it reasonably determines appropriate. Sanofi shall have the sole and exclusive right to enforce the Sanofi Sole Program Patents at its sole cost and expense. (d) [***] (e) At the request of Sanofi, RevMed shall provide reasonable assistance in connection with any such suit or action, including by executing reasonably appropriate documents, cooperating in discovery and joining as a party to the action if required (at Sanofi’s expense). In connection with a proceeding with respect to a Product Infringement covered by this Section 10.4, Sanofi shall not enter into any settlement admitting the invalidity of, or otherwise impairing RevMed’s rights in, the RevMed Licensed Patents or Joint Program Patents without the prior written consent of RevMed. (f) Any recoveries resulting from an enforcement action relating to a claim of Product Infringement shall be first applied against payment of each Party’s costs and expenses in connection therewith. Any such recoveries in excess of such costs and expenses (the “Remainder”) shall be shared by the Parties as follows. The Remainder shall, [***].

Patent Enforcement and Defense. (a) Each Party shall promptly notify the other Party within fifteen (but in any case no later than [***] after 15) Business Days of becoming aware) aware of any alleged or threatened infringement by a Third Party of any of the RevMed MyoKardia Licensed Patents or Sanofi Licensed Patents or Joint Program Patents, and RevMed shall promptly notify Sanofi (but in any case no later than [***] after becoming aware) of any alleged or threatened infringement by a Third Party of any of the Sanofi Sole Program Patents, in each case including (i) any such alleged or threatened infringement on account of a Third Party’s manufacture, use or sale of a Product in the Field or (ii) any “patent certification” filed in the United States under 21 U.S.C. §355(b)(2) or 21 U.S.C. §355(j)(2) or similar provisions in other jurisdictions in connection with an ANDA (an Abbreviated New Drug Application in the United States or a comparable application for Regulatory Approval under Applicable Law in any country other than the United States) or other MAA for a Product in the Field and (iii) any declaratory judgment action filed by a Third Party that is developing, manufacturing or commercializing a Product in the Field alleging the invalidity, unenforceability or non-infringement of any of the RevMed MyoKardia Licensed Patents, Joint Program Patents or Sanofi Sole Program Licensed Patents ((i)-(iii), collectively, “Product Infringement”). (b) Sanofi, at its sole cost and expense, Sanofi shall have the sole and exclusive right, but not the obligation, first right to bring (or defend) and control any legal action in connection with any Product Infringement outside the United States, and any Product Infringement in the United States on account of a Third Party’s manufacture, use or sale of a DCM1 Product, (collectively, “Sanofi Product Infringement”) at its own expenseexpense (but subject to reimbursement by MyoKardia for its share of U.S.-related expenses under the DCM1 [***] Option, if exercised by MyoKardia), as it reasonably determines appropriate, and MyoKardia shall have the right to be represented in any such action by counsel of its choice. Prior to Sanofi’s commencing any such action, and periodically during the course of such action, the Parties shall meet to discuss Sanofi’s proposed strategy for such action and the progress thereof, and Sanofi shall reasonably consider any comments thereto made by MyoKardia; provided that Sanofi shall have final decision making authority with respect to litigation strategy for such action. In any event, Sanofi shall not take any action that MyoKardia reasonably believes would be likely to have an adverse effect on any MyoKardia Licensed Patent or Joint Program Patent anywhere in the world. If Sanofi decides not to bring such legal action to enforce a Sanofi Sole Program Patent or other Sanofi Licensed Patent to the extent such Sanofi Licensed Patent is reasonably necessary or reasonably useful for MyoKardia to perform its obligations or exercise its rights hereunder (excluding any Sanofi Licensed Patent that claims a device, diagnostic, formulation technology or manufacturing process technology proprietary to Sanofi that is generally applicable to products other than Products ), MyoKardia Licensed Patent or Joint Program Patent, it shall so inform MyoKardia promptly and MyoKardia shall have the right to bring and control any legal action in connection with such Sanofi Product Infringement at its own expense as it reasonably determines appropriate after consultation with Sanofi; provided that in connection with such action, MyoKardia shall not take any action that Sanofi reasonably believes would be likely to have an adverse effect on any Sanofi Licensed Patent or Joint Program Patent anywhere in the world. (c) RevMedFor any Product Infringement in the United States on account of a Third Party’s manufacture, at its sole cost and expenseuse or sale of an HCM1 Product or HCM2 Product, MyoKardia shall have the sole exclusive right to bring (or defend) and control any legal action in connection with such Product Infringement at its own expense as it reasonably determines appropriate, and Sanofi shall have the right to be represented in any such action by counsel of its choice. Prior to MyoKardia’s commencing any such action, and periodically during the course of such action, the Parties shall meet to discuss MyoKardia’s proposed strategy for such action and the progress thereof, and MyoKardia shall reasonably consider any comments thereto made by Sanofi; provided that MyoKardia shall have final decision making authority with respect to litigation strategy for such action. In any event, MyoKardia shall not take any action that Sanofi reasonably believes would be likely to have an adverse effect on any Sanofi Licensed Patent or Joint Program Patent anywhere in the world. If MyoKardia decides not to bring such legal action to enforce a MyoKardia Licensed Patent, Sanofi Licensed Patent or a Joint Program Patent it shall so inform Sanofi promptly and Sanofi shall have the right to bring and control any legal action in connection with such Product Infringement at its own expense as it reasonably determines appropriate after consultation with MyoKardia; provided that in connection with such action, Sanofi shall not take any action that MyoKardia reasonably believes would be likely to have an adverse effect on any MyoKardia Licensed Patent or Joint Program Patent anywhere in the world. In the event there is Product Infringement relating to an HCM1 Product or HCM2 Product both inside and outside the United States, the Parties shall coordinate in good faith regarding enforcement strategy. (d) MyoKardia shall have the exclusive right to enforce the RevMed MyoKardia Licensed Patents for any infringement that is not a Product Infringement at its own expense as it reasonably determines appropriate. Sanofi shall have the exclusive right to enforce the Sanofi Licensed Patents for any infringement that is not a Product Infringement at its own expense as it reasonably determines appropriate. Each Party shall have the right to enforce the Joint Program Patents for any infringement that is not a Product Infringement at its own expense as it reasonably determines appropriate. Sanofi * Confidential Information, indicated by [***], has been omitted from this filing and filed separately with the Securities and Exchange Commission (e) The Party initiating the suit or other action under Section 10.4(b) or Section 10.4(c) shall have the sole and exclusive right to enforce select counsel for such suit or other action; provided, that (x) the Sanofi Sole Program Patents at its sole cost and expense. (d) [***] (e) At the request of Sanofi, RevMed other Party shall provide reasonable assistance in connection with such suit or other action, including if required under Applicable Law in order for the initiating Party to initiate and/or maintain such suit or other action, joining such suit or other action as a party, (y) the other Party shall have the right to participate and be represented by its own counsel in any such suit or actionother action at its own expense, and (z) the Party initiating the suit or other action shall keep the other Party reasonably informed, consult with such other Party with respect to the proposed strategy (including settlement) of such suit or other action and consider in good faith any comments such other Party may provide. (f) At the request of the Party bringing or defending the action against any Product Infringement, the other Party shall provide reasonable assistance in connection therewith, including by executing reasonably appropriate documents, cooperating in discovery and joining as a party to the action if required (at Sanofithe enforcing Party’s expense). In connection with a proceeding with respect to a Product Infringement covered by this Section 10.4, Sanofi the Party bringing the action shall not enter into any settlement admitting the invalidity of, or otherwise impairing RevMedthe other Party’s rights in, the RevMed MyoKardia Licensed Patents, Sanofi Licensed Patents (however this restriction, with respect to any Sanofi Licensed Patents, shall apply to Sanofi as the Party conducting the Proceeding, only if the Sanofi Licensed Patents relate solely to the Products) or Joint Program Patents without the prior written consent of RevMedsuch other Party. (fg) Any recoveries resulting from an enforcement action relating to a claim of Product Infringement shall be first applied against payment of each Party’s costs and expenses in connection therewith. Any such recoveries in excess of such costs and expenses (the “Remainder”) shall be shared by the Parties as follows. The : (i) For any enforcement action against a Product Infringement outside the United States, (A) if Sanofi is the enforcing Party, the Remainder shallshall be retained by Sanofi and deemed Net Sales outside the United States and subject to a royalty payment to MyoKardia in accordance with Section 9.6 (to the extent the Product Infringement occurred during the Royalty Term for the applicable Product); and (B) if MyoKardia is the enforcing party, the Remainder shall be allocated [***] percent ([***]%) to MyoKardia and [***] percent ([***]%) to Sanofi. (ii) For any enforcement action against a Product Infringement on account of a Third Party’s manufacture, use or sale of a DCM1 Product in the United States, (A) if Sanofi is the enforcing Party and MyoKardia has not exercised the DCM1 [***] Option, the Remainder shall be retained by Sanofi and deemed Net Sales in the United States and subject to a royalty payment to MyoKardia in accordance with Section 9.6; (B) if Sanofi is the enforcing Party and MyoKardia has exercised the DCM1 [***] Option, the Remainder shall be deemed Net Sales in the United States and shared between the Parties pursuant to Section 9.7; and (C) if MyoKardia is the enforcing Party, the Remainder shall be allocated [***] percent ([***]%) to MyoKardia and [***] percent ([***]%) to Sanofi. * Confidential Information, indicated by [***], has been omitted from this filing and filed separately with the Securities and Exchange Commission (iii) For any enforcement action against a Product Infringement in the United States on account of a Third Party’s manufacture, use or sale of an HCM1 Product or an HCM2 Product, the Remainder shall be retained by MyoKardia and deemed Net Sales in the United States and subject to a royalty payment to Sanofi in accordance with Section 9.6. (iv) For any enforcement action against a Product Infringement on account of a Third Party’s manufacture, use or sale of an Expanded Use Product, the Remainder shall be allocated as agreed by the Parties pursuant to Section 4.8.

Patent Enforcement and Defense. (a) Each Party shall will promptly notify the other Party (but in any case no later than [***] after becoming aware) of any alleged infringement, misappropriation, or threatened infringement other violation by a Third Party of any of the RevMed Licensed Patents or Joint Program MPAG Products Patents, and RevMed shall promptly notify Sanofi (but in the MPAG Products Know-How, or any case no later than [***] after becoming aware) of any alleged Joint IP, New Manufacturing IP or threatened infringement by a Third Party of any of the Sanofi Sole Program Patents, in each case including (i) any such alleged or threatened infringement on account of a Third Party’s manufacture, use or sale of a Product Option Period Manufacturing IP in the Field or (ii) in the Territory of which it becomes aware, including any “patent certification” filed in the United States under 21 42 U.S.C. §355(b)(2262(i)(2) or 21 U.S.C. §355(j)(2262(k) or similar provisions in other jurisdictions in connection with an ANDA (an Abbreviated New Drug Application in the United States and of any request for declaratory judgment, opposition, nullity action, interference, inter-partes reexamination, inter-partes review, post-grant review, derivation proceeding, or a comparable application for Regulatory Approval under Applicable Law in any country other than the United States) or other MAA for a Product in the Field and (iii) any declaratory judgment similar action filed by a Third Party that is developing, manufacturing or commercializing a Product in the Field alleging the invalidity, unenforceability or non-infringement of any of the RevMed Licensed Patents, Joint Program MPAG Products Patents or Sanofi Sole Program Patents Patent Rights included in the Joint IP, New Manufacturing IP or Option Period Manufacturing IP ((i)-(iii), collectively, collectively “Product Third Party Infringement”). (b) Sanofi, at its sole cost and expense, shall [***] will have the sole and exclusive right, but not the obligation, first right to bring (or defend) and control any legal action in connection with any Third Party Infringement to the extent the applicable MPAG Products Patents, MPAG Products Know-How, Joint IP, New Manufacturing IP or Option Period Manufacturing IP (i) relate exclusively to the MPAG Compounds or Products or (ii) do not primarily relate to the [***] or a designed ankyrin repeat protein product other than a Product Infringement at its own expense, as it reasonably determines appropriate. (c) RevMed, at its sole cost and expense, shall have the sole and exclusive “[***] Third Party Infringement”). [***] right to enforce the RevMed Licensed Patents for any infringement that is not a Product Infringement control such legal action shall be at its own expense as it reasonably determines appropriate. Each Party appropriate (including deciding on any litigation strategy), and [***] shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. If [***] fails to bring an action or proceeding with respect to, or to terminate, infringement of any [***] Third Party Infringement (1) within [***] following the notice of alleged infringement or (2) prior to [***] before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, [***] shall have the right, to bring and control any such action at its own expense and by counsel of its own choice, and [***] shall have the right, at its own expense, to be represented in any such action by counsel of its own choice; provided, however, that if [***] notifies [***] in writing prior to [***] before such time limit for the filing of any such action that [***] intends to file such action before the time limit, then [***] shall be obligated to file such action before the time limit. (c) [***] will have the first right to enforce the Joint Program Patents for bring and control any infringement legal action in connection with any Third Party Infringement that is not a Product [***] Third Party Infringement (“[***] Third Party Infringement”). [***] right to control such legal action shall be at its own expense as it 264813180 v3 reasonably determines appropriate. Sanofi appropriate (including deciding on any litigation strategy), and [***] shall have the sole and exclusive right to enforce the Sanofi Sole Program Patents right, at its sole cost own expense, to be represented in any such action by counsel of its own choice. If [***] fails to bring an action or proceeding with respect to, or to terminate, infringement of any [***] Third Party Infringement (i) within [***] following the notice of alleged infringement or (ii) prior to [***] before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, [***] shall have the right, to bring and control any such action at its own expense and by counsel of its own choice, and [***] shall have the right, at its own expense, to be represented in any such action by counsel of its own choice; provided, however, that if [***] notifies [***] in writing prior to [***] before such time limit for the filing of any such action that [***] intends to file such action before the time limit, then [***] shall be obligated to file such action before the time limit. (d) If a Party initiates proceedings in accordance with this Section 10.6, the other Party agrees to be joined as a party plaintiff where necessary and to give the first Party reasonable assistance and authority to file and prosecute the proceedings. The costs and expenses of each Party incurred pursuant to this Section 10.6 will be borne by the Party initiating such proceedings. If one Party initiates proceedings in accordance with this Section 10.6, the other Party may join such proceedings as a party plaintiff where necessary for such other Party to seek lost profits or other appropriate damages or compensation with respect to such infringement. (e) Any damages or other monetary awards recovered with respect to a Third Party Infringement brought pursuant to this Section 10.6 will be shared as follows: (i) the amount of such recovery will first be applied to the Parties’ reasonable out-of-pocket expenses incurred in connection with such Third Party Infringement legal action (which amounts will be allocated pro rata if insufficient to cover the totality of such expenses); then (ii) any remaining proceeds constituting direct or actual damages for acts of infringement will be paid to, or retained by, MPAG in respect of any Third Party Infringement brought and controlled by MPAG, and Novartis in respect of any Third Party Infringement brought and controlled by Novartis; provided that any amounts received by Novartis will be included in Net Sales for the Calendar Quarter in which such amounts are received by Novartis; and (iii) any remaining proceeds constituting punitive or treble damages will be allocated between the Parties as follows: the Party that brought and controlled the Third Party Infringement action will retain [***] (e) At ] of such proceeds and the request other Party will receive [***] of Sanofi, RevMed shall provide reasonable assistance in connection with any such suit or action, including by executing reasonably appropriate documents, cooperating in discovery and joining as a party to the action if required (at Sanofi’s expense). In connection with a proceeding with respect to a Product Infringement covered by this Section 10.4, Sanofi shall not enter into any settlement admitting the invalidity of, or otherwise impairing RevMed’s rights in, the RevMed Licensed Patents or Joint Program Patents without the prior written consent of RevMedproceeds. (f) Any recoveries resulting from an enforcement action relating Notwithstanding anything to the contrary under this Section 10.6, neither Party may enter a claim settlement, consent judgment or other voluntary final disposition of Product Infringement a suit under this Section 10.6 that disclaims, limits the scope of, admits the invalidity or unenforceability of, or grants a license, covenant not to sue or similar immunity under any Patent Rights Controlled by the other Party or its Affiliates without first obtaining the written consent of the Party that Controls the relevant Patent Rights; provided, that either Party shall be first applied against payment entitled, without the consent of each the other Party’s costs and expenses in connection therewith. Any such recoveries in excess , to enter into a settlement, consent judgment or other voluntary final disposition of such costs and expenses (a suit that primarily relates to the “Remainder”) shall establishment of a date by which the a generic or biosimilar product will be shared by the Parties as follows. The Remainder shall, [***]permitted to be Commercialized.

Patent Enforcement and Defense. (a) Each Party shall will promptly notify the other Party (but in any case no later than [***] after becoming aware) of any alleged infringement, misappropriation, or threatened infringement other violation by a Third Party of any of the RevMed Licensed Patents or Joint Program MPAG Products Patents, and RevMed shall promptly notify Sanofi (but in the MPAG Products Know-How, or any case no later than [***] after becoming aware) of any alleged Joint IP, New Manufacturing IP or threatened infringement by a Third Party of any of the Sanofi Sole Program Patents, in each case including (i) any such alleged or threatened infringement on account of a Third Party’s manufacture, use or sale of a Product Option Period Manufacturing IP in the Field or (ii) in the Territory of which it becomes aware, including any “patent certification” filed in the United States under 21 42 U.S.C. §355(b)(2262(i)(2) or 21 U.S.C. §355(j)(2262(k) or similar provisions in other jurisdictions in connection with an ANDA (an Abbreviated New Drug Application in the United States and of any request for declaratory judgment, opposition, nullity action, interference, inter-partes reexamination, inter-partes review, post-grant review, derivation proceeding, or a comparable application for Regulatory Approval under Applicable Law in any country other than the United States) or other MAA for a Product in the Field and (iii) any declaratory judgment similar action filed by a Third Party that is developing, manufacturing or commercializing a Product in the Field alleging the invalidity, unenforceability or non-infringement of any of the RevMed Licensed Patents, Joint Program MPAG Products Patents or Sanofi Sole Program Patents Patent Rights included in the Joint IP, New Manufacturing IP or Option Period Manufacturing IP ((i)-(iii), collectively, collectively “Product Third Party Infringement”). (b) Sanofi, at its sole cost and expense, shall [***] will have the sole and exclusive right, but not the obligation, first right to bring (or defend) and control any legal action in connection with any Third Party Infringement to the extent the applicable MPAG Products Patents, MPAG Products Know-How, Joint IP, New Manufacturing IP or Option Period Manufacturing IP (i) relate exclusively to the MPAG Compounds or Products or (ii) do not primarily relate to the [***] or a designed ankyrin repeat protein product other than a Product Infringement at its own expense, as it reasonably determines appropriate. (c) RevMed, at its sole cost and expense, shall have the sole and exclusive “[***] Third Party Infringement”). [***] right to enforce the RevMed Licensed Patents for any infringement that is not a Product Infringement control such legal action shall be at its own expense as it reasonably determines appropriate. Each Party appropriate (including deciding on any litigation strategy), and [***] shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. If [***] fails to bring an action or proceeding with respect to, or to terminate, infringement of any [***] Third Party Infringement (1) within [***] following the notice of alleged infringement or (2) prior to [***] before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, [***] shall have the right, to bring and control any such action at its own expense and by counsel of its own choice, and [***] shall have the right, at its own expense, to be represented in any such action by counsel of its own choice; provided, however, that if [***] notifies [***] in writing prior to [***] before such time limit for the filing of any such action that [***] intends to file such action before the time limit, then [***] shall be obligated to file such action before the time limit. (c) [***] will have the first right to enforce the Joint Program Patents for bring and control any infringement legal action in connection with any Third Party Infringement that is not a Product [***] Third Party Infringement (“[***] Third Party Infringement”). [***] right to control such legal action shall be at its own expense as it 264813180 v3 reasonably determines appropriate. Sanofi appropriate (including deciding on any litigation strategy), and [***] shall have the sole and exclusive right to enforce the Sanofi Sole Program Patents right, at its sole cost own expense, to be represented in any such action by counsel of its own choice. If [***] fails to bring an action or proceeding with respect to, or to terminate, infringement of any [***] Third Party Infringement (i) within [***] following the notice of alleged infringement or (ii) prior to [***] before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, [***] shall have the right, to bring and control any such action at its own expense and by counsel of its own choice, and [***] shall have the right, at its own expense, to be represented in any such action by counsel of its own choice; provided, however, that if [***] notifies [***] in writing prior to [***] before such time limit for the filing of any such action that [***] intends to file such action before the time limit, then [***] shall be obligated to file such action before the time limit. (d) If a Party initiates proceedings in accordance with this Section 10.6, the other Party agrees to be joined as a party plaintiff where necessary and to give the first Party reasonable assistance and authority to file and prosecute the proceedings. The costs and expenses of each Party incurred pursuant to this Section 10.6 will be borne by the Party initiating such proceedings. If one Party initiates proceedings in accordance with this Section 10.6, the other Party may join such proceedings as a party plaintiff where necessary for such other Party to seek lost profits or other appropriate damages or compensation with respect to such infringement. (e) Any damages or other monetary awards recovered with respect to a Third Party Infringement brought pursuant to this Section 10.6 will be shared as follows: (i) the amount of such recovery will first be applied to the Parties’ reasonable out-of-pocket expenses incurred in connection with such Third Party Infringement legal action (which amounts will be allocated pro rata if insufficient to cover the totality of such expenses); then (ii) any remaining proceeds constituting direct or actual damages for acts of infringement will be paid to, or retained by, MPAG in respect of any Third Party Infringement brought and controlled by MPAG, and Novartis in respect of any Third Party Infringement brought and controlled by Novartis; provided that any amounts received by Novartis will be included in Net Sales for the Calendar Quarter in which such amounts are received by Novartis; and (iii) any remaining proceeds constituting punitive or treble damages will be allocated between the Parties as follows: the Party that brought and controlled the Third Party Infringement action will retain [***] (e) At ] of such proceeds and the request other Party will receive [***] of Sanofi, RevMed shall provide reasonable assistance in connection with any such suit or action, including by executing reasonably appropriate documents, cooperating in discovery and joining as a party to the action if required (at Sanofi’s expense). In connection with a proceeding with respect to a Product Infringement covered by this Section 10.4, Sanofi shall not enter into any settlement admitting the invalidity of, or otherwise impairing RevMed’s rights in, the RevMed Licensed Patents or Joint Program Patents without the prior written consent of RevMedproceeds. (f) Any recoveries resulting from an enforcement action relating Notwithstanding anything to the contrary under this Section 10.6, neither Party may enter a claim settlement, consent judgment or other voluntary final disposition of Product Infringement a suit under this Section 10.6 that disclaims, limits the scope of, admits the invalidity or unenforceability of, or grants a license, covenant not to xxx or similar immunity under any Patent Rights Controlled by the other Party or its Affiliates without first obtaining the written consent of the Party that Controls the relevant Patent Rights; provided, that either Party shall be first applied against payment entitled, without the consent of each the other Party’s costs and expenses in connection therewith. Any such recoveries in excess , to enter into a settlement, consent judgment or other voluntary final disposition of such costs and expenses (a suit that primarily relates to the “Remainder”) shall establishment of a date by which the a generic or biosimilar product will be shared by the Parties as follows. The Remainder shall, [***]permitted to be Commercialized.