Common use of Patent Enforcement Clause in Contracts

Patent Enforcement. Alibaba will have the sole control and discretion over the enforcement or defense of any Alipay-Related Patent and New FIG Business-Related Patent. In the event that Purchaser or its designated Subsidiary reasonably believes that any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent is being infringed by a third Person, Purchaser or its designated Subsidiary shall promptly notify Alibaba in writing, or in the event that a declaratory judgment action is brought against Purchaser or any of its Subsidiaries with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent (or a reexamination request or post-grant challenge is filed against an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent), it shall promptly notify Alibaba in writing. (a) As between the Parties hereto, Alibaba shall have the initial right (but not the obligation) to control the enforcement of the Alipay-Exclusive Patents and New FIG Business-Exclusive Patents, or defend any declaratory judgment action against Purchaser or any of its Subsidiaries (or reexamination request or post-grant challenge) with respect thereto (each, for purposes of this Section 6.2, an “Enforcement Action”). All recoveries obtained by Alibaba from an Enforcement Action pursuant to this Section 6.2(a) will be first used to reimburse Alibaba for its out-of-pocket litigation expenses (including but not limited to any attorneys’ fees and court costs) in connection with the Enforcement Action and one hundred percent (100%) of any remaining recoveries will go to Purchaser or its designated Subsidiary. For clarity, any such recoveries shall be included in the consolidated pre-tax income of the Purchaser Group for the applicable fiscal year in which they are accrued, and shall be taken into consideration in the calculation of the Alipay Royalty and New FIG Royalty pursuant to Article V. At the request of Purchaser or its designated Subsidiary, Alibaba shall keep Purchaser or its designated Subsidiary reasonably informed of the progress of any such Enforcement Action brought or defended by Alibaba pursuant to this Section 6.2(a). (b) In the event that Alibaba does not initiate an Enforcement Action to enforce the Alipay-Exclusive Patents or New FIG Business-Exclusive Patents against a commercially significant infringement by a third Person in the field of the FIG Holdco Business (“Qualifying Infringement”), within ninety (90) days after a formal, written request by Purchaser or its designated Subsidiary to initiate such Enforcement Action, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) may initiate an Enforcement Action against such infringement. In the event that Alibaba does not promptly undertake, at Alibaba’s expense, the defense of a declaratory judgment action against Purchaser or any of its Subsidiaries (or a reexamination request or post-grant challenge) with respect to any of the Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) shall have the right to do so at its own expense. Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary, as applicable, must consult with Alibaba prior to initiating any Enforcement Action or defending any declaratory judgment action (or reexamination) pursuant to this Section 6.2(b) with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, and shall not assert any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent against any third Person if, in the written opinion of outside patent counsel mutually agreed to by the Parties, it is more likely than not that such third Person is not infringing the Alipay-Exclusive Patent or New FIG Business-Exclusive Patent in the field of the FIG Holdco Business. Alibaba shall have the right (but not the obligation) to cooperate, at Alipay’s or its designated Subsidiary’s expense or Purchaser’s or its designated Subsidiary’s expense, in any Enforcement Action initiated or defended by Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary under this Section 6.2(b) (including joining such Enforcement Action as a party plaintiff if necessary or desirable for initiation or continuation of such Enforcement Action) and shall have the right (but not the obligation) to participate and be represented in any such Enforcement Action with counsel of its choice at Alibaba’s own expense. In any event, Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall keep Alibaba reasonably informed of the progress of any such Enforcement Action initiated or defended by Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary pursuant to this Section 6.2(b) and, upon Alibaba’s request, shall seek Alibaba’s input on any substantive submissions or positions it takes in the litigation regarding the scope, validity and enforceability of the Alipay-Exclusive Patents and New FIG Business-Exclusive Patents. Alipay or its designed Subsidiary or Purchaser or its designated Subsidiary, as applicable, shall have the right to enter into an agreement in settlement of any Enforcement Action brought or defended pursuant to this Section 6.2(b), including the grant of a license within the field of the Alipay Business (in the case of an Alipay-Exclusive Patent) or New FIG Business (in the case of a New FIG Business-Exclusive Patent), but shall not enter into any settlement agreement which would impose any obligation or cost on, or otherwise adversely affect, Alibaba or any of its Subsidiaries (for clarity, for purposes or the foregoing, the Parties acknowledge that a non-exclusive license consistent with this Amended IPLA that is granted to the defendant in any such Enforcement Action shall not be regarded as adversely affecting Alibaba or its Subsidiaries), or make any admission relating to the validity or enforceability of any Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, without the prior written consent of Alibaba, such consent not to be unreasonably withheld or delayed. All recoveries obtained by Purchaser or its designated Subsidiary from an Enforcement Action pursuant to this Section 6.2(b) will be first used to reimburse Alibaba for its out-of-pocket litigation-related expenses (including reasonable attorneys’ fees and court costs) in connection with the Enforcement Action and any remaining recoveries will be retained one hundred percent (100%) by Purchaser and/or its Subsidiaries (as designated by Purchaser) and included in the consolidated pre-tax income of the Purchaser Group in the fiscal year in which such recoveries are accrued. (c) Notwithstanding anything set forth in Section 6.2(b), Alibaba may, in its sole discretion, refuse to cooperate with Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary in connection with, or otherwise participate in, any Enforcement Action (“Right of Refusal”), and Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall not seek to join Alibaba or any Alibaba Subsidiary as a party in any Enforcement Action. In the event Alibaba exercises its Right of Refusal with respect to any Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, then, upon Alipay’s or its designated Subsidiary’s or Purchaser’s or its designated Subsidiary’s written request, Alibaba agrees to cooperate with Alipay or designated Subsidiary or Purchaser or its designated Subsidiary to determine if the assignment of any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, or waiver of Alibaba’s right to enforce the subject Alipay-Exclusive Patent or New FIG Business-Exclusive Patent would be necessary for the purposes of Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary to pursue or defend the applicable Enforcement Action. If Alibaba and Alipay or its designated Subsidiary, or Purchaser or its designated Subsidiary, determine that such an assignment of any Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), as applicable, or waiver of Alibaba’s rights is necessary, then Alibaba will elect, in its sole discretion and subject to the unanimous approval of the Alibaba Independent Committee as to which option to elect: (i) to join in the applicable Enforcement Action, (ii) file appropriate papers with the applicable court confirming that it waives its rights to enforce the applicable Alipay-Exclusive Patent or New FIG Business-Exclusive Patent and agrees that Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary may enforce such Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, as applicable, or (iii) to assign to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, at Alibaba’s sole cost and expense and subject to Section 2.7(a), Alibaba’s entire right, title and interest in and to such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), together with the right to recover any damages for past infringement of such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s). For clarity, any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent assigned to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, pursuant to this Section 6.2(c) will constitute Alipay-Retained IP licensed to Alibaba and its Subsidiaries pursuant to Section 2.7(a).

Patent Enforcement. Alibaba will have the sole control and discretion over the enforcement or defense 5.2.1 If either party should become aware of any Alipay-Related infringement or misappropriation or threatened infringement or misappropriation of the Patent and New FIG Business-Related Patent. In the event that Purchaser or its designated Subsidiary reasonably believes that any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent is being infringed by a third Person, Purchaser or its designated Subsidiary shall promptly notify Alibaba in writing, or in the event that a declaratory judgment action is brought against Purchaser or any of its Subsidiaries with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent (or a reexamination request or post-grant challenge is filed against an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent)Rights, it shall promptly notify Alibaba the other party in writingwriting and provide any information available to that party relating to such alleged infringement or misappropriation. (a) As between the Parties hereto, Alibaba 5.2.2 Somaxon shall have the initial right (primary right, but not the obligation, to take action in its own name and its expense to secure the cessation of any infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Patent Rights in the Field. ProCom One agrees to assist Somaxon, at Somaxon’s expense, in the prosecution of any action or legal proceedings related to infringement or misappropriation of the Patent Rights in the Field. If requested by Somaxon, ProCom One agrees (a) to control join any action or legal proceeding to enforce the enforcement Patent Rights in the Field against any third party or (b) to bring such action or proceeding in its own name (at Somaxon’s expense and subject to Somaxon’s prosecution and control), if required by applicable law or regulation for such action or proceeding to be brought or continue. If Somaxon takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Alipay-Exclusive Patents and New FIG Business-Exclusive PatentsPatent Rights in the Field, or defend any declaratory judgment action against Purchaser or any after payment of its Subsidiaries (or reexamination request or post-grant challenge) with respect thereto (each, for purposes of this Section 6.2, an “Enforcement Action”). All recoveries obtained by Alibaba from an Enforcement Action pursuant to this Section 6.2(a) will be first used to reimburse Alibaba for its ProCom One’s out-of-pocket litigation expenses (including but not limited costs and Royalty due to ProCom One on any attorneys’ fees award of lost profits, all other damages and court costs) costs recovered in connection with the Enforcement Action and one hundred percent (100%) any action or proceedings or by way of any remaining recoveries will go settlement shall belong to Purchaser or its designated Subsidiary. For clarity, any such recoveries shall be included in the consolidated pre-tax income of the Purchaser Group for the applicable fiscal year in which they are accrued, and shall be taken into consideration in the calculation of the Alipay Royalty and New FIG Royalty pursuant to Article V. At the request of Purchaser or its designated Subsidiary, Alibaba shall keep Purchaser or its designated Subsidiary reasonably informed of the progress of any such Enforcement Action brought or defended by Alibaba pursuant to this Section 6.2(a)Somaxon. (b) 5.2.3 In the event that Alibaba does not initiate an Enforcement Action to enforce the Alipay-Exclusive Patents Somaxon takes no action within six (6) months of notice of any such infringement or New FIG Business-Exclusive Patents against a commercially significant infringement by a third Person in the field of the FIG Holdco Business (“Qualifying Infringement”)misappropriation, within ninety (90) days after a formal, written request by Purchaser or its designated Subsidiary to initiate such Enforcement Action, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) may initiate an Enforcement Action against such infringement. In the event that Alibaba does not promptly undertake, at Alibaba’s expense, the defense of a declaratory judgment action against Purchaser or any of its Subsidiaries (or a reexamination request or post-grant challenge) with respect to any of the Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) ProCom One shall have the right to do so at its own expense. Alipay or its designated Subsidiary or Purchaser or its designated Subsidiaryright, as applicable, must consult with Alibaba prior to initiating any Enforcement Action or defending any declaratory judgment action (or reexamination) pursuant to this Section 6.2(b) with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, and shall not assert any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent against any third Person if, in the written opinion of outside patent counsel mutually agreed to by the Parties, it is more likely than not that such third Person is not infringing the Alipay-Exclusive Patent or New FIG Business-Exclusive Patent in the field of the FIG Holdco Business. Alibaba shall have the right (but not the obligation) , to cooperate, at Alipay’s or take action in its designated Subsidiary’s own name and its expense or Purchaser’s or its designated Subsidiary’s expense, in any Enforcement Action initiated or defended by Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary under this Section 6.2(b) (including joining such Enforcement Action as a party plaintiff if necessary or desirable for initiation or continuation of such Enforcement Action) and shall have to secure the right (but not the obligation) to participate and be represented in any such Enforcement Action with counsel of its choice at Alibaba’s own expense. In any event, Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall keep Alibaba reasonably informed of the progress cessation of any such Enforcement Action initiated infringement or defended by Alipay misappropriation or its designated Subsidiary to institute, prosecute and control legal proceedings to prevent or Purchaser restrain such infringement or its designated Subsidiary pursuant to this Section 6.2(b) and, upon Alibaba’s request, shall seek Alibaba’s input on any substantive submissions or positions it takes misappropriation concerning the Patent Rights in the litigation regarding Field. If requested by ProCom One, Somaxon agrees to join any action or legal proceeding to enforce the scope, validity and enforceability of the Alipay-Exclusive Patents and New FIG Business-Exclusive Patents. Alipay or its designed Subsidiary or Purchaser or its designated Subsidiary, as applicable, shall have the right to enter into an agreement in settlement of any Enforcement Action brought or defended pursuant to this Section 6.2(b), including the grant of a license within the field of the Alipay Business (Patent Rights in the case of an Alipay-Exclusive Patent) Field against any third party. If ProCom One takes action or New FIG Business (in the case of a New FIG Business-Exclusive Patent), but shall not enter into any settlement agreement which would impose any obligation or cost on, or otherwise adversely affect, Alibaba or any of its Subsidiaries (for clarity, for purposes or the foregoing, the Parties acknowledge that a non-exclusive license consistent with this Amended IPLA that is granted to the defendant in any such Enforcement Action shall not be regarded as adversely affecting Alibaba or its Subsidiaries), or make any admission prosecutes legal proceedings relating to the validity infringement or enforceability misappropriation of any Alipay-Exclusive Patents or New FIG Business-Exclusive Patentsthe Patent Rights in the Field, without the prior written consent after payment of Alibaba, such consent not to be unreasonably withheld or delayed. All recoveries obtained by Purchaser or its designated Subsidiary from an Enforcement Action pursuant to this Section 6.2(b) will be first used to reimburse Alibaba for its Somaxon’s out-of-pocket litigation-related expenses (including reasonable attorneys’ fees costs, all other damages and court costs) in connection with the Enforcement Action and any remaining recoveries will be retained one hundred percent (100%) by Purchaser and/or its Subsidiaries (as designated by Purchaser) and included in the consolidated pre-tax income of the Purchaser Group in the fiscal year in which such recoveries are accrued. (c) Notwithstanding anything set forth in Section 6.2(b), Alibaba may, in its sole discretion, refuse to cooperate with Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary in connection with, or otherwise participate in, any Enforcement Action (“Right of Refusal”), and Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall not seek to join Alibaba or any Alibaba Subsidiary as a party costs recovered in any Enforcement Action. In the event Alibaba exercises its Right action or proceedings or by way of Refusal with respect settlement shall belong to any Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, then, upon Alipay’s or its designated Subsidiary’s or Purchaser’s or its designated Subsidiary’s written request, Alibaba agrees to cooperate with Alipay or designated Subsidiary or Purchaser or its designated Subsidiary to determine if the assignment of any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, or waiver of Alibaba’s right to enforce the subject Alipay-Exclusive Patent or New FIG Business-Exclusive Patent would be necessary for the purposes of Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary to pursue or defend the applicable Enforcement Action. If Alibaba and Alipay or its designated Subsidiary, or Purchaser or its designated Subsidiary, determine that such an assignment of any Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), as applicable, or waiver of Alibaba’s rights is necessary, then Alibaba will elect, in its sole discretion and subject to the unanimous approval of the Alibaba Independent Committee as to which option to elect: (i) to join in the applicable Enforcement Action, (ii) file appropriate papers with the applicable court confirming that it waives its rights to enforce the applicable Alipay-Exclusive Patent or New FIG Business-Exclusive Patent and agrees that Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary may enforce such Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, as applicable, or (iii) to assign to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, at Alibaba’s sole cost and expense and subject to Section 2.7(a), Alibaba’s entire right, title and interest in and to such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), together with the right to recover any damages for past infringement of such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s). For clarity, any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent assigned to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, pursuant to this Section 6.2(c) will constitute Alipay-Retained IP licensed to Alibaba and its Subsidiaries pursuant to Section 2.7(a)ProCom One.

Patent Enforcement. Alibaba will have the sole control and discretion over the enforcement or defense 5.2.1 If either party should become aware of any Alipay-Related infringement or misappropriation or threatened infringement or misappropriation of the Patent and New FIG Business-Related Patent. In the event that Purchaser or its designated Subsidiary reasonably believes that any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent is being infringed by a third Person, Purchaser or its designated Subsidiary shall promptly notify Alibaba in writing, or in the event that a declaratory judgment action is brought against Purchaser or any of its Subsidiaries with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent (or a reexamination request or post-grant challenge is filed against an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent)Rights, it shall promptly notify Alibaba the other party in writingwriting and provide any information available to that party relating to such alleged infringement or misappropriation. (a) As between the Parties hereto, Alibaba 5.2.2 Somaxon shall have the initial right (primary right, but not the obligation) , to take action in its own name and its expense to secure the cessation of any infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the enforcement Patent Rights in the Field. ProCom One agrees to assist Somaxon, at Somaxon's expense, in the prosecution of any action or legal proceedings related to infringement or misappropriation of the Alipay-Exclusive Patents and New FIG Business-Exclusive PatentsPatent Rights in the Field. If requested by Somaxon, ProCom One agrees to join any action or defend legal proceeding to enforce the Patent Rights in the Field against any declaratory judgment third party. If Somaxon takes action against Purchaser or any prosecutes legal proceedings relating to the infringement or misappropriation of its Subsidiaries (or reexamination request or post-grant challenge) with respect thereto (eachthe Patent Rights in the Field, for purposes after payment of this Section 6.2, an “Enforcement Action”). All recoveries obtained by Alibaba from an Enforcement Action pursuant to this Section 6.2(a) will be first used to reimburse Alibaba for its ProCom One's out-of-pocket litigation expenses (including but not limited costs and Royalty due to ProCom One on any attorneys’ fees award of lost profits, all other damages and court costs) costs recovered in connection with the Enforcement Action and one hundred percent (100%) any action or proceedings or by way of any remaining recoveries will go settlement shall belong to Purchaser or its designated Subsidiary. For clarity, any such recoveries shall be included in the consolidated pre-tax income of the Purchaser Group for the applicable fiscal year in which they are accrued, and shall be taken into consideration in the calculation of the Alipay Royalty and New FIG Royalty pursuant to Article V. At the request of Purchaser or its designated Subsidiary, Alibaba shall keep Purchaser or its designated Subsidiary reasonably informed of the progress of any such Enforcement Action brought or defended by Alibaba pursuant to this Section 6.2(a)Somaxon. (b) 5.2.3 In the event that Alibaba does not initiate an Enforcement Action to enforce the Alipay-Exclusive Patents Somaxon takes no action within six (6) months of notice of any such infringement or New FIG Business-Exclusive Patents against a commercially significant infringement by a third Person in the field of the FIG Holdco Business (“Qualifying Infringement”)misappropriation, within ninety (90) days after a formal, written request by Purchaser or its designated Subsidiary to initiate such Enforcement Action, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) may initiate an Enforcement Action against such infringement. In the event that Alibaba does not promptly undertake, at Alibaba’s expense, the defense of a declaratory judgment action against Purchaser or any of its Subsidiaries (or a reexamination request or post-grant challenge) with respect to any of the Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) ProCom One shall have the right to do so at its own expense. Alipay or its designated Subsidiary or Purchaser or its designated Subsidiaryright, as applicable, must consult with Alibaba prior to initiating any Enforcement Action or defending any declaratory judgment action (or reexamination) pursuant to this Section 6.2(b) with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, and shall not assert any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent against any third Person if, in the written opinion of outside patent counsel mutually agreed to by the Parties, it is more likely than not that such third Person is not infringing the Alipay-Exclusive Patent or New FIG Business-Exclusive Patent in the field of the FIG Holdco Business. Alibaba shall have the right (but not the obligation) , to cooperate, at Alipay’s or take action in its designated Subsidiary’s own name and its expense or Purchaser’s or its designated Subsidiary’s expense, in any Enforcement Action initiated or defended by Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary under this Section 6.2(b) (including joining such Enforcement Action as a party plaintiff if necessary or desirable for initiation or continuation of such Enforcement Action) and shall have to secure the right (but not the obligation) to participate and be represented in any such Enforcement Action with counsel of its choice at Alibaba’s own expense. In any event, Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall keep Alibaba reasonably informed of the progress cessation of any such Enforcement Action initiated infringement or defended by Alipay misappropriation or its designated Subsidiary to institute, prosecute and control legal proceedings to prevent or Purchaser restrain such infringement or its designated Subsidiary pursuant to this Section 6.2(b) and, upon Alibaba’s request, shall seek Alibaba’s input on any substantive submissions or positions it takes misappropriation concerning the Patent Rights in the litigation regarding field. If requested by ProCom One, Somaxon agrees to join any action or legal proceeding to enforce the scope, validity and enforceability of the Alipay-Exclusive Patents and New FIG Business-Exclusive Patents. Alipay or its designed Subsidiary or Purchaser or its designated Subsidiary, as applicable, shall have the right to enter into an agreement in settlement of any Enforcement Action brought or defended pursuant to this Section 6.2(b), including the grant of a license within the field of the Alipay Business (Patent Rights in the case of an Alipay-Exclusive Patent) Field against any third party. If ProCom One takes action or New FIG Business (in the case of a New FIG Business-Exclusive Patent), but shall not enter into any settlement agreement which would impose any obligation or cost on, or otherwise adversely affect, Alibaba or any of its Subsidiaries (for clarity, for purposes or the foregoing, the Parties acknowledge that a non-exclusive license consistent with this Amended IPLA that is granted to the defendant in any such Enforcement Action shall not be regarded as adversely affecting Alibaba or its Subsidiaries), or make any admission prosecutes legal proceedings relating to the validity infringement or enforceability misappropriation of any Alipay-Exclusive Patents or New FIG Business-Exclusive Patentsthe Patent Rights in the Field, without the prior written consent after payment of Alibaba, such consent not to be unreasonably withheld or delayed. All recoveries obtained by Purchaser or its designated Subsidiary from an Enforcement Action pursuant to this Section 6.2(b) will be first used to reimburse Alibaba for its Somaxon's out-of-pocket litigation-related expenses (including reasonable attorneys’ fees costs, all other damages and court costs) in connection with the Enforcement Action and any remaining recoveries will be retained one hundred percent (100%) by Purchaser and/or its Subsidiaries (as designated by Purchaser) and included in the consolidated pre-tax income of the Purchaser Group in the fiscal year in which such recoveries are accrued. (c) Notwithstanding anything set forth in Section 6.2(b), Alibaba may, in its sole discretion, refuse to cooperate with Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary in connection with, or otherwise participate in, any Enforcement Action (“Right of Refusal”), and Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall not seek to join Alibaba or any Alibaba Subsidiary as a party costs recovered in any Enforcement Action. In the event Alibaba exercises its Right action or proceedings or by way of Refusal with respect settlement shall belong to any Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, then, upon Alipay’s or its designated Subsidiary’s or Purchaser’s or its designated Subsidiary’s written request, Alibaba agrees to cooperate with Alipay or designated Subsidiary or Purchaser or its designated Subsidiary to determine if the assignment of any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, or waiver of Alibaba’s right to enforce the subject Alipay-Exclusive Patent or New FIG Business-Exclusive Patent would be necessary for the purposes of Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary to pursue or defend the applicable Enforcement Action. If Alibaba and Alipay or its designated Subsidiary, or Purchaser or its designated Subsidiary, determine that such an assignment of any Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), as applicable, or waiver of Alibaba’s rights is necessary, then Alibaba will elect, in its sole discretion and subject to the unanimous approval of the Alibaba Independent Committee as to which option to elect: (i) to join in the applicable Enforcement Action, (ii) file appropriate papers with the applicable court confirming that it waives its rights to enforce the applicable Alipay-Exclusive Patent or New FIG Business-Exclusive Patent and agrees that Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary may enforce such Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, as applicable, or (iii) to assign to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, at Alibaba’s sole cost and expense and subject to Section 2.7(a), Alibaba’s entire right, title and interest in and to such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), together with the right to recover any damages for past infringement of such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s). For clarity, any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent assigned to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, pursuant to this Section 6.2(c) will constitute Alipay-Retained IP licensed to Alibaba and its Subsidiaries pursuant to Section 2.7(a)ProCom One.

Patent Enforcement. Alibaba will have the sole control and discretion over the enforcement or defense 5.2.1 If either party should become aware of any Alipay-Related Patent and New FIG Business-Related Patent. In infringement or misappropriation or threatened infringement or misappropriation of the event that Purchaser or its designated Subsidiary reasonably believes that any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent is being infringed Licensed IP by a third Person, Purchaser or its designated Subsidiary shall promptly notify Alibaba in writing, or in the event that a declaratory judgment action is brought against Purchaser or any of its Subsidiaries with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent (or a reexamination request or post-grant challenge is filed against an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent)party, it shall promptly notify Alibaba the other party in writingwriting and provide any information available to that party relating to such alleged infringement or misappropriation. (a) As between the Parties hereto, Alibaba 5.2.2 Somaxon shall have the initial right (first right, but not the obligation) , to take action in Synchroneuron's name and Somaxon's own expense to secure the cessation of any infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the enforcement Licensed IP. Synchroneuron agrees to assist Somaxon, at Somaxon's expense, in the prosecution of any action or legal proceedings related to infringement or misappropriation of the Alipay-Exclusive Patents and New FIG Business-Exclusive PatentsLicensed IP. If requested by Somaxon, Synchroneuron agrees to join any action or defend legal proceeding to enforce the Licensed IP against any declaratory judgment third party. If Somaxon takes action against Purchaser or any prosecutes legal proceedings relating to the infringement or misappropriation of its Subsidiaries the Licensed IP, Somaxon shall (or reexamination request or post-grant challengea) with respect thereto (each, for purposes of this Section 6.2, an “Enforcement Action”). All recoveries obtained by Alibaba from an Enforcement Action pursuant to this Section 6.2(a) will be first used to reimburse Alibaba Synchroneuron for its reasonable out-of-pocket litigation expenses costs associated with its assistance under this Section 5.2.2; and (including but not limited b) within thirty (30) days of receipt of any damages or costs in any such action or proceeding, pay to any attorneys’ fees and court costs) in connection with the Enforcement Action and one hundred Synchroneuron five percent (1005%) of any remaining recoveries will go such damages or costs, after deduction of Somaxon's applicable legal fees and related costs directly attributable to Purchaser the action for infringement of misappropriation. All other damages and costs recovered in any action or its designated Subsidiaryproceedings or by way of settlement shall belong to Somaxon. For claritythe avoidance of doubt, (i) to the extent that Somaxon enters into a sublicense agreement with a formerly infringing party to permit such party to continue to sell Licensed Products, any amounts paid thereafter by such recoveries party to Somaxon pursuant to the sublicense agreement shall be included in considered "Sublicense Fees" for purposes of Section 4.12 and (ii) to the consolidated pre-tax income extent that Somaxon receives any amounts from a sublicensee representing damages recovered by the sublicense attributable to an action for infringement of misappropriation of the Purchaser Group for the applicable fiscal year in which they are accruedLicensed IP, and such amounts shall be taken into consideration in the calculation considered "Sublicense Fees" for purposes of the Alipay Royalty and New FIG Royalty pursuant to Article V. At the request of Purchaser or its designated Subsidiary, Alibaba shall keep Purchaser or its designated Subsidiary reasonably informed of the progress of any such Enforcement Action brought or defended by Alibaba pursuant to this Section 6.2(a)4.12. (b) 5.2.3 In the event that Alibaba Somaxon does not initiate an Enforcement Action to enforce the Alipay-Exclusive Patents pursue any such infringement or New FIG Business-Exclusive Patents against a commercially significant misappropriation within six (6) months of notice of any such infringement by a third Person in the field of the FIG Holdco Business (“Qualifying Infringement”)or misappropriation, within ninety (90) days after a formal, written request by Purchaser or its designated Subsidiary to initiate such Enforcement Action, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) may initiate an Enforcement Action against such infringement. In the event that Alibaba does not promptly undertake, at Alibaba’s expense, the defense of a declaratory judgment action against Purchaser or any of its Subsidiaries (or a reexamination request or post-grant challenge) with respect to any of the Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) Synchroneuron shall have the right to do so at its own expense. Alipay or its designated Subsidiary or Purchaser or its designated Subsidiaryright, as applicable, must consult with Alibaba prior to initiating any Enforcement Action or defending any declaratory judgment action (or reexamination) pursuant to this Section 6.2(b) with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, and shall not assert any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent against any third Person if, in the written opinion of outside patent counsel mutually agreed to by the Parties, it is more likely than not that such third Person is not infringing the Alipay-Exclusive Patent or New FIG Business-Exclusive Patent in the field of the FIG Holdco Business. Alibaba shall have the right (but not the obligation) , to cooperate, at Alipay’s or take action in its designated Subsidiary’s own name and its expense or Purchaser’s or its designated Subsidiary’s expense, in any Enforcement Action initiated or defended by Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary under this Section 6.2(b) (including joining such Enforcement Action as a party plaintiff if necessary or desirable for initiation or continuation of such Enforcement Action) and shall have to secure the right (but not the obligation) to participate and be represented in any such Enforcement Action with counsel of its choice at Alibaba’s own expense. In any event, Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall keep Alibaba reasonably informed of the progress cessation of any such Enforcement Action initiated infringement or defended misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Licensed IP. If requested by Alipay Synchroneuron, Somaxon agrees to join any action or its designated Subsidiary legal proceeding to enforce the Licensed IP against any third party. If Synchroneuron takes action or Purchaser or its designated Subsidiary pursuant to this Section 6.2(b) and, upon Alibaba’s request, shall seek Alibaba’s input on any substantive submissions or positions it takes in the litigation regarding the scope, validity and enforceability of the Alipay-Exclusive Patents and New FIG Business-Exclusive Patents. Alipay or its designed Subsidiary or Purchaser or its designated Subsidiary, as applicable, shall have the right to enter into an agreement in settlement of any Enforcement Action brought or defended pursuant to this Section 6.2(b), including the grant of a license within the field of the Alipay Business (in the case of an Alipay-Exclusive Patent) or New FIG Business (in the case of a New FIG Business-Exclusive Patent), but shall not enter into any settlement agreement which would impose any obligation or cost on, or otherwise adversely affect, Alibaba or any of its Subsidiaries (for clarity, for purposes or the foregoing, the Parties acknowledge that a non-exclusive license consistent with this Amended IPLA that is granted to the defendant in any such Enforcement Action shall not be regarded as adversely affecting Alibaba or its Subsidiaries), or make any admission prosecutes legal proceedings relating to the validity infringement or enforceability misappropriation of any Alipay-Exclusive Patents or New FIG Business-Exclusive Patentsthe Licensed IP, without the prior written consent after payment of Alibaba, such consent not to be unreasonably withheld or delayed. All recoveries obtained by Purchaser or its designated Subsidiary from an Enforcement Action pursuant to this Section 6.2(b) will be first used to reimburse Alibaba for its Somaxon's reasonable out-of-pocket litigation-related expenses (including reasonable attorneys’ fees costs, all other damages and court costs) in connection with the Enforcement Action and any remaining recoveries will be retained one hundred percent (100%) by Purchaser and/or its Subsidiaries (as designated by Purchaser) and included in the consolidated pre-tax income of the Purchaser Group in the fiscal year in which such recoveries are accrued. (c) Notwithstanding anything set forth in Section 6.2(b), Alibaba may, in its sole discretion, refuse to cooperate with Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary in connection with, or otherwise participate in, any Enforcement Action (“Right of Refusal”), and Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall not seek to join Alibaba or any Alibaba Subsidiary as a party costs recovered in any Enforcement Actionaction or proceedings or by way of settlement shall belong to Synchroneuron. In the event Alibaba exercises its Right of Refusal with respect to any Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, then, upon Alipay’s or its designated Subsidiary’s or Purchaser’s or its designated Subsidiary’s written request, Alibaba agrees to cooperate with Alipay or designated Subsidiary or Purchaser or its designated Subsidiary to determine if the assignment If Synchroneuron assumes control of any Alipay-Exclusive Patent infringement or New FIG Business-Exclusive Patent to Alipay or its designated Subsidiarymisappropriation action hereunder, or to Purchaser or its designated Subsidiary, as applicable, or waiver of Alibaba’s right to enforce Synchroneuron may terminate certain Somaxon rights under the subject Alipay-Exclusive Patent or New FIG Business-Exclusive Patent would be necessary for the purposes of Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary to pursue or defend the applicable Enforcement Action. If Alibaba and Alipay or its designated Subsidiary, or Purchaser or its designated Subsidiary, determine that such an assignment of any Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), as applicable, or waiver of Alibaba’s rights is necessary, then Alibaba will elect, in its sole discretion and subject to the unanimous approval of the Alibaba Independent Committee as to which option to elect: (i) to join in the applicable Enforcement Action, (ii) file appropriate papers with the applicable court confirming that it waives its rights to enforce the applicable Alipay-Exclusive Patent or New FIG Business-Exclusive Patent and agrees that Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary may enforce such Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, as applicable, or (iii) to assign to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, at Alibaba’s sole cost and expense and subject to Section 2.7(a), Alibaba’s entire right, title and interest in and to such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), together with the right to recover any damages for past infringement of such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s). For clarity, any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent assigned to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, pursuant to this Section 6.2(c) will constitute Alipay-Retained IP licensed to Alibaba and its Subsidiaries License pursuant to Section 2.7(a)9.4.2 hereof.

Patent Enforcement. Alibaba will (a) Each Party shall notify the other promptly after such Party becomes aware of any alleged infringement of any Patent licensed to VIACELL under this Agreement in any country in the Territory. Except as provided in Section 11.3, VIACELL shall have the sole control and discretion over first right, but not the enforcement or defense of any Alipay-Related Patent and New FIG Business-Related Patent. In the event that Purchaser or its designated Subsidiary reasonably believes that any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent is being infringed by a third Personduty, Purchaser or its designated Subsidiary shall promptly notify Alibaba in writing, or in the event that a declaratory judgment action is brought to institute patent infringement actions against Purchaser or any of its Subsidiaries Third Parties with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent any such alleged infringement. VIACELL shall take all such actions under this Section 11.1(a) (or a reexamination request or post-grant challenge is filed against an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent), it shall promptly notify Alibaba in writing. (a) As between the Parties hereto, Alibaba shall have the initial right (but not the obligation) to control the enforcement of the Alipay-Exclusive Patents and New FIG Business-Exclusive Patents, or defend any declaratory judgment action against Purchaser or any of its Subsidiaries (or reexamination request or post-grant challenge) other than with respect thereto (each, for purposes of this Section 6.2, an “Enforcement Action”). All recoveries obtained by Alibaba from an Enforcement Action pursuant to this Section 6.2(a) will be first used to reimburse Alibaba for its out-of-pocket litigation expenses (including but not limited to any attorneys’ fees and court costsa Patent included solely in the VIACELL Development Technology) in connection reasonable consultation with the Enforcement Action and one hundred percent (100%) of any remaining recoveries will go to Purchaser or its designated Subsidiary. For clarity, any such recoveries shall be included in the consolidated pre-tax income of the Purchaser Group for the applicable fiscal year in which they are accrued, GAMETE and shall be taken into consideration in keep GAMETE apprised as to the calculation of the Alipay Royalty and New FIG Royalty pursuant to Article V. At the request of Purchaser or its designated Subsidiary, Alibaba shall keep Purchaser or its designated Subsidiary reasonably informed of the progress status of any such Enforcement Action brought or defended by Alibaba pursuant infringement action VIACELL institutes. GAMETE shall execute all reasonable, necessary and proper documents and take such actions as shall be appropriate to allow VIACELL to institute and prosecute infringement actions under this Section 6.2(a11.1(a). (b) In The costs and expenses of bringing and maintaining any infringement action under Section 11.1(a) shall be borne solely by VIACELL. (c) Any award or compensation (including the fair market value of non-monetary compensation) paid by Third Parties as a result of any infringement action brought by VIACELL under Section 11.1(a) (whether by way of settlement or otherwise) shall be allocated first to reimbursement of VIACELL and GAMETE for all expenses incurred by it in connection with such action. VIACELL shall then pay GAMETE the royalty it would have been entitled to receive had the balance of such recovery or damages, to the extent attributable to sales of such infringing products, been attributable to sales of Covered Products by VIACELL hereunder. VIACELL shall be entitled to retain the remainder of any such recovery or damages. (d) Except as provided in Section 11.3, in the event that Alibaba does VIACELL elects not initiate an Enforcement Action to enforce the Alipay-Exclusive Patents to, or New FIG Business-Exclusive Patents against a commercially significant infringement by a third Person in the field of the FIG Holdco Business (“Qualifying Infringement”)fails to, within ninety (90) days after a formal, written request by Purchaser or exercise its designated Subsidiary to initiate such Enforcement Action, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) may initiate an Enforcement Action against such infringement. In the event that Alibaba does not promptly undertake, at Alibaba’s expense, the defense of a declaratory judgment action against Purchaser or any of its Subsidiaries (or a reexamination request or post-grant challengerights under Section 11.1(a) with respect to any alleged infringement of the Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, Alipay or its designated Subsidiary a Patent licensed to VIACELL under this Agreement (excluding any Patent included solely in the case of an Alipay-Exclusive PatentVIACELL Development Technology) or Purchaser or its designated Subsidiary within one hundred twenty (in the case of a New FIG Business-Exclusive Patent120) days after receiving notice thereof, GAMETE shall have the right to do so at its own expense. Alipay or its designated Subsidiary or Purchaser or its designated Subsidiaryright, as applicable, must consult with Alibaba prior to initiating any Enforcement Action or defending any declaratory judgment action (or reexamination) pursuant to this Section 6.2(b) with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, and shall not assert any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent against any third Person if, in the written opinion of outside patent counsel mutually agreed to by the Parties, it is more likely than not that such third Person is not infringing the Alipay-Exclusive Patent or New FIG Business-Exclusive Patent in the field of the FIG Holdco Business. Alibaba shall have the right (but not the obligation) duty, to cooperate, at Alipay’s or its designated Subsidiary’s expense or Purchaser’s or its designated Subsidiary’s expense, in any Enforcement Action initiated or defended by Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary under this Section 6.2(b) (including joining such Enforcement Action as a party plaintiff if necessary or desirable for initiation or continuation of such Enforcement Action) and shall have the right (but not the obligation) to participate and be represented in any such Enforcement Action with counsel of its choice at Alibaba’s own expense. In any event, Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall keep Alibaba reasonably informed of the progress of any such Enforcement Action initiated or defended by Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary pursuant to this Section 6.2(b) and, upon Alibaba’s request, shall seek Alibaba’s input on any substantive submissions or positions it takes in the litigation regarding the scope, validity and enforceability of the Alipay-Exclusive Patents and New FIG Business-Exclusive Patents. Alipay or its designed Subsidiary or Purchaser or its designated Subsidiary, as applicable, shall have the right to enter into an agreement in settlement of any Enforcement Action brought or defended pursuant to this Section 6.2(b), including the grant of a license within the field of the Alipay Business (in the case of an Alipay-Exclusive Patent) or New FIG Business (in the case of a New FIG Business-Exclusive Patent), but shall not enter into any settlement agreement which would impose any obligation or cost on, or otherwise adversely affect, Alibaba or any of its Subsidiaries (for clarity, for purposes or the foregoing, the institute patent infringement actions against Third Parties acknowledge that a non-exclusive license consistent with this Amended IPLA that is granted to the defendant in any such Enforcement Action shall not be regarded as adversely affecting Alibaba or its Subsidiaries), or make any admission relating to the validity or enforceability of any Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, without the prior written consent of Alibaba, such consent not to be unreasonably withheld or delayed. All recoveries obtained by Purchaser or its designated Subsidiary from an Enforcement Action pursuant to this Section 6.2(b) will be first used to reimburse Alibaba for its out-of-pocket litigation-related expenses (including reasonable attorneys’ fees and court costs) in connection with the Enforcement Action and any remaining recoveries will be retained one hundred percent (100%) by Purchaser and/or its Subsidiaries (as designated by Purchaser) and included in the consolidated pre-tax income of the Purchaser Group in the fiscal year in which such recoveries are accrued. (c) Notwithstanding anything set forth in Section 6.2(b), Alibaba may, in its sole discretion, refuse to cooperate with Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary in connection with, or otherwise participate in, any Enforcement Action (“Right of Refusal”), and Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall not seek to join Alibaba or any Alibaba Subsidiary as a party in any Enforcement Action. In the event Alibaba exercises its Right of Refusal with respect to any Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, then, upon Alipay’s or its designated Subsidiary’s or Purchaser’s or its designated Subsidiary’s written request, Alibaba agrees such alleged infringement. GAMETE shall take all such actions under this Section 11.1(d) in reasonable consultation with VIACELL and shall keep VIACELL apprised as to cooperate with Alipay or designated Subsidiary or Purchaser or its designated Subsidiary to determine if the assignment status of any Alipaysuch infringement action GAMETE institutes. VIACELL shall execute all reasonable, necessary and proper documents and take such actions as shall be appropriate to allow GAMETE to institute and prosecute infringement actions under this Section 12.1(d). Any award or compensation (including the fair market value of non-Exclusive Patent or New FIG Business-Exclusive Patent to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, monetary compensation) paid by Third Parties as applicable, or waiver of Alibaba’s right to enforce the subject Alipay-Exclusive Patent or New FIG Business-Exclusive Patent would be necessary for the purposes of Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary to pursue or defend the applicable Enforcement Action. If Alibaba and Alipay or its designated Subsidiary, or Purchaser or its designated Subsidiary, determine that such an assignment a result of any Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), as applicable, or waiver of Alibaba’s rights is necessary, then Alibaba will elect, in its sole discretion and subject to the unanimous approval of the Alibaba Independent Committee as to which option to elect: (i) to join in the applicable Enforcement Action, (ii) file appropriate papers with the applicable court confirming that it waives its rights to enforce the applicable Alipay-Exclusive Patent or New FIG Business-Exclusive Patent and agrees that Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary may enforce such Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, as applicable, or (iii) to assign to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, at Alibaba’s sole cost and expense and subject to Section 2.7(a), Alibaba’s entire right, title and interest in and to such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), together with the right to recover any damages for past infringement of such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s). For clarity, any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent assigned to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, pursuant to action brought by GAMETE under this Section 6.2(c11.1(d) will constitute Alipay-Retained IP licensed (whether by way of settlement or otherwise) shall be allocated first to Alibaba reimbursement of GAMETE and its Subsidiaries pursuant to Section 2.7(a)VIACELL for all expenses incurred by them in connection with such action. Any remaining award or compensation shall be retained by GAMETE.