Common use of PATENT ENFORCEMENT AND MAINTENANCE Clause in Contracts

PATENT ENFORCEMENT AND MAINTENANCE. 9.1 EVERGREEN shall maintain all patents of the Licensed Patents which have Valid Claims, except as limited in Article 9.2, and shall have all access and control of the patent files of the Licensed Patents at a law firm of EVERGREEN's choosing. 9.2 EVERGREEN shall have the option to waive rights to any of the Licensed Patents, and shall provide three months prior written notice to SACHS if it does not intend to maintain further any of such Licensed Patents, or of any such maintenance fees, annual tax or other government fees which it does not intend to timely pay, in order to allow SACHX xx decide whether to make such payments on his own behalf. 9.3 In the event that either SACHX xx EVERGREEN shall become informed of, or have reason to believe that, any patent included in the Licensed Patents is being infringed or potentially infringed by any unlicensed third-party, it shall promptly notify the other party in writing. 9.4 EVERGREEN shall have the right, but not the obligation, to (i) bring suit or other necessary and appropriate legal action, including, without limitation, counterclaims and cross- claims (the "Infringement Action"), at EVERGREEN's own expense, joining SACHS as a party if necessary or desirable, to terminate or prevent the infringement or potential infringement of any patent included in the Licensed Patents, and (ii) to negotiate with the alleged infringer (the "Infringement Negotiation") and to effect such settlement consistent with the terms of this Agreement as EVERGREEN may deem proper. All proceeds of any award, settlement or judgment resulting from such Infringement Action or Infringement Negotiation (the "Recovery") shall be divided between EVERGREEN and SACHS as follows: EVERGREEN shall receive the aggregate amount of the Recovery, and shall pay to SACHS from such Recovery the amount that is equal to the royalties, if any, that SACHS would have received under this Agreement for sales of EVERGREEN products of similar type and in equivalent amounts to the sales of the infringing or allegedly infringing products from which the Recovery was derived. SACHX xxxees to cooperate fully with EVERGREEN in providing documentation, witnesses and any other assistance reasonably required to bring about a favorable result with respect to any Infringement Action or Infringement Negotiation, and shall be paid by EVERGREEN for such cooperation at a rate equal to the consulting rate set forth in this Agreement. SACHX xxxll be kept fully informed by EVERGREEN or its representatives of all legal actions taken by EVERGREEN in connection with any Infringement Action or Infringement Negotiation. SACHX xxx be represented at any such legal proceedings by counsel selected and retained by SACHX xx his sole direction and expense. 9.5 EVERGREEN shall defend, at EVERGREEN's own expense, except as provided for in Article 6.1, and joining SACHS as a party if necessary or desirable, all suits and legal actions arising from the use, development, manufacture, and sale of the Technology; and EVERGREEN shall have the right to negotiate with the opposing party, and to effect such settlement consistent with the terms of this Agreement, as EVERGREEN may deem proper. SACHX xxxees to cooperate fully with EVERGREEN in providing documentation, witnesses and any other assistance reasonably required to bring about a favorable result and shall be paid by EVERGREEN for such cooperation at a rate equal to the consulting rate set forth in this Agreement; and SACHS shall be kept fully informed by EVERGREEN or its representatives of all such legal proceedings taken by EVERGREEN. SACHX xxx be represented at such legal proceedings by counsel selected and retained by SACHX xx his sole direction and expense. 9.6 EVERGREEN shall have the right, but not the obligation, to file additional patent applications describing and claiming the Technology which EVERGREEN, in its sole discretion shall deem reasonably necessary to protect its rights, through an attorney of EVERGREEN's choosing, and in such event shall assume the timely payment of any and all maintenance fees, annual taxes or other government fees assessed as a condition of keeping such patent applications in full force and effect. In the event that SACHX xx an inventor on such patent applications, EVERXXXXX xxxees to give SACHS three months prior written notice if it does not intend to prosecute or maintain further any of such patent applications, or of any such maintenance fees, annual tax or other government fees which it does not intend to timely pay, in order to allow SACHX xx decide whether to make such payment on his own behalf.