Common use of Right to Control a Defensive Action Clause in Contracts

Right to Control a Defensive Action. Lxxxx shall have the initial right, but not the obligation, to defend and control the defense of any Defensive Licensed Patent Action. If Lxxxx does not intend to exercise its first right to defend a Defensive Licensed Patent Action within the earlier of (1) [**] of receipt of notice of the applicable Licensed Patent Challenge and (2) [**] before the deadline for filing of a response to the notice of the applicable Licensed Patent Challenge (including any extensions that Lxxxx has obtained), it shall within [**] notify Telix in writing and Telix may, by written notice to Lxxxx, defend and control such Defensive Licensed Patent Action (either such Party who defends such action or defense under this sentence, the “Licensed Patent Defending Party”). At the Licensed Patent Defending Party’s request, the non-Licensed Patent Defending Party shall provide the Licensed Patent Defending Party with all relevant documentation (as may be requested by the Licensed Patent Defending Party) evidencing that the Licensed Patent Defending Party is validly empowered by the non-Licensed Patent Defending Party to defend such Defensive Licensed Patent Action. The non-Licensed Patent Defending Party shall join the Licensed Patent Defending Party in its such Defensive Licensed Patent Action if the Licensed Patent Defending Party reasonably determines that this is necessary to demonstrate “standing to defend” at the Licensed Patent Defending Party’s cost and expense. Where one Party is the Licensed Patent Defending Party in a Defensive Licensed Patent Action which has arisen as a counterclaim in an Offensive Licensed Patent Infringement Action for which the other Party is the Licensed Patent Commencing Party, the Parties shall use Commercially Reasonable Efforts in good faith to work closely together and consult with each other as to strategy in such proceedings. The Licensed Patent Defending Party shall have the sole and exclusive right to select counsel for any claim defended by it pursuant to this Section 11.4(a)(iii) (but not the non-Licensed Patent Defending Party’s counsel).