Enforcement and Defense. (a) Each Party shall promptly notify the other of any knowledge it acquires of any potential infringement of the Collaboration Patents by a Third Party.
(b) If any Patent within the Collaboration Patents is infringed by a Third Party in any country in the Territory in connection with the manufacture, use and sale of a product the same as or substantially similar to a Product in the Field in such country, TESARO shall have the primary right, but not the obligation, to institute, prosecute, and control any action or proceeding with respect to such infringement of such Patent, by counsel of its own choice, and AnaptysBio shall have the right, at its own expense, to be represented in that action by counsel of its own choice. If TESARO fails to bring an action or proceeding within a period of one hundred twenty (120) days after a request by AnaptysBio to do so, AnaptysBio shall have the right to bring and control any such action by counsel of its own choice, and TESARO shall have the right to be represented in any such action by counsel of its own choice at its own expense.
(c) If one Party brings an action or proceeding in accordance with Section 9.3(b), the second Party agrees to be joined as a party plaintiff if necessary and to give the first Party reasonable assistance and authority to file and prosecute the suit. The costs and expenses of the Party bringing suit under this Section shall be borne by such Party, and any damages or other monetary awards recovered shall be shared as follows: The amount of such recovery actually received by the Party controlling such action shall first be applied to the out-of- pocket costs of such action, and then (i) if TESARO is the Party that brings such action or proceeding, then AnaptysBio shall be paid an amount equal to the royalties, if any, that would have been due upon sales of the infringing product as if such infringing sales had been Net Sales of a Product sold by or under the authority of TESARO, and the remaining portion of such recovery shall be paid to TESARO, or (ii) if AnaptysBio is the Party that brings such action or proceeding, then the remaining portion of such recovery shall be retained by AnaptysBio. A settlement or consent judgment or other voluntary final disposition of a suit under this Section 9.3 may be entered into without the consent of the Party not bringing the suit. Neither Party shall, however, have the right to enter into any settlement or consent to any claim to the effect that the patent...
Enforcement and Defense. 7.3.1 [****]
7.3.2 The Party having the first right to initiate and prosecute legal action pursuant to Section 7.3.1 shall promptly inform the other Party if it elects not to exercise its first right under Section 7.3.1 to initiate and prosecute legal action, and the other Party shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in its name and, if necessary, the name of the other Party. The costs of any agreed-upon course of action to terminate infringement of Company Patent Rights or Joint Patent Rights or misappropriation or misuse of Company Know-How, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be paid by the Party initiating and/or prosecuting the action. Each Party shall have the right to be represented by counsel of its own choice.
7.3.3 For any action to terminate any infringement of Company Patent Rights or Joint Patent Rights or any misappropriation or misuse of Company Know-How pursuant to Section 7.3.1, in the event that a Party is unable to initiate or prosecute such action solely in its own name, the other Party will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for the Party to initiate litigation to prosecute and maintain such action under this Section 7.3. In connection with any action or potential action, Merck and Company will cooperate fully and will provide each other with any information or assistance that either may reasonably request, including cooperating with regard to any pre-litigation review of the Company Patent Rights and Joint Patent Rights. Each Party shall keep the other informed of developments in any action or proceeding. For any proceeding not controlled by Merck, Company shall obtain prior approval from Merck of any settlement offer or settlement agreement. For any proceeding specifically related to Platform Information and Inventions not controlled by Company, Merck shall obtain prior approval from Company of any settlement offer or settlement agreement.
7.3.4 Any recovery obtained by either or both Merck and Company in connection with or as a result of any action contemplated by this Section 7.3, whether by settlement or otherwise, shall be shared in order as follows:
(a) the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the a...
Enforcement and Defense. (i) Each party shall have the exclusive right, but not the obligation, to enforce at its sole expense the Assigned Patents in its respective Exclusive Area, and the other party shall TECHNOLOGY DONATION AGREEMENT have no right to enforce any of the Assigned Patents in the other party’s Exclusive Area. Each party shall retain all recoveries resulting from its enforcement activities.
(ii) In the event that a third party challenges the validity or enforceability of any Assigned Patent(s) (other than by way of interference, opposition, reissue proceeding or reexamination, which is addressed in Article 6.1(a), or as a counterclaim or otherwise in connection with a proceeding related to the enforcement by BMS within the scope of the Grant-back Licenses, which shall be addressed by reversal of the roles of University and BMS in the remainder of this Article 6.1(b)(ii)), then University shall have the first right, but not the obligation, to take such action, under its control and at its sole expense, as University deems reasonably necessary to defend the validity or enforceability of such Assigned Patent(s). If University elects not to take such action, University shall provide at least fifteen (15) days notice to BMS prior to any material litigation deadline, and BMS may then, at BMS’s option, assume control and defense of such action at BMS’s sole expense.
(iii) With respect to the foregoing activities under this Article 6.1(b):
(1) Neither party shall settle any action or admit as to invalidity or unenforceability or otherwise disclaim a patent right that could materially impair the other party’s rights in the Assigned Patents without the other party’s prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, either party granting rights to a third party within the scope of such party’s rights under this Agreement (such as a Licensee Entity granting a sublicense within the scope of the license under the applicable Assigned Patents granted to it by University in conformance with this Agreement, or BMS granting a sublicense under the Grant-back License in conformance with this Agreement) shall not be deemed to impair in a material fashion such other party’s rights in the Assigned Patents hereunder and thus shall not require such other party’s consent.
(2) Each party shall cooperate with the other party in any such activities by the other party, including University agreeing, at the request of BMS, to be a named party or being...
Enforcement and Defense. 4.3.1 Each Party shall promptly give the other Party notice of any infringement in the Territory of any patent application or patent included in the Patent Rights that comes to such Party’s attention. The Parties will thereafter consult and cooperate fully to determine a course of action, including, without limitation, the commencement of legal action by either Party. Rosetta, upon notice to Hadasit, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Hadasit and Rosetta, as applicable, or to control the defense of any declaratory judgment action relating to the Patent Rights. Rosetta shall promptly inform Hadasit if Rosetta elects not to exercise such first right, and Hadasit thereafter shall have the right, in its discretion, to initiate and prosecute such action or to control the defense of such declaratory judgment action (“Manage Proceedings”) in the name of Hadasit and Rosetta. In the event that Rosetta elects not to Manage Proceedings and Hadasit elects to Manage Proceedings, Rosetta shall have no rights to any such patent/patent application and any license granted to it for such patent/patent application shall terminate. Provided however that in the event elected not to Manage Proceedings only with regard to certain patent applications and/or certain countries, and Hadasit Managed Proceedings for such patent applications and/or in such countries, then the license will terminate only with regard to those patent assets and/or in these countries. In no event shall Rosetta enter into any settlement that would adversely affect the Patent Rights in any material respect without the prior written consent of Hadasit.
4.3.2 For any such legal action or defense, in the event that any Party is unable to initiate, prosecute, or defend such action solely in its own name, the other Party shall join such action voluntarily and shall execute all documents reasonably necessary for the Party to prosecute, defend and maintain such action. In connection with any such action, the Parties will cooperate and will provide each other with any information or assistance that either reasonably may request. Each Party shall keep the other informed of developments in any such action or proceeding, including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto.
4.3.3 Any recovery obtained by Rosetta or Hadasit in any such action or proceeding shall be shared...
Enforcement and Defense. (a) Each party shall give the other notice of either (x) any infringement of ARRIS Patents or Collaboration Patents in the Field, or (y) any misappropriation or misuse of ARRIS Know-How, that may come to ARRIS’s attention. MERCK and ARRIS thereafter shall consult and cooperate fully to determine a course of action including, without limitation, the commencement of legal action by either or both of MERCK and ARRIS, to terminate any infringement of such patent rights in the Field or any misappropriation or misuse of ARRIS Know-How in the Field. However, ARRIS, upon notice to MERCK, shall have the first right to initiate and prosecute such legal action [***] in the name of ARRIS (and, if appropriate, MERCK), or to control the defense of [***] indicates material that has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. any declaratory judgment action relating to ARRIS Patents, Collaboration Patents or ARRIS Know-How. ARRIS promptly shall inform MERCK if it elects not to exercise such first right, and if such infringement or misuse materially adversely affects MERCK’s efforts under this Agreement, MERCK thereafter shall have the right either to initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of MERCK and, if necessary, ARRIS.
(b) If ARRIS elects not to initiate and prosecute an action as provided in Subsection 7.4(a), and, due to material adverse effect on MERCK, MERCK has the right and chose to prosecute an action, the cost of any agreed-upon course of action to terminate infringement of ARRIS Patents or Collaboration Patents, misappropriation or misuse of ARRIS Know-How, including the costs of any legal action commenced or the defense of any declaratory judgment, [***]. Any proceeds from such action [***] will be [***].
(c) For any action to terminate any infringement of ARRIS Patents or Collaboration Patents or any misappropriation or misuse of ARRIS Know-How, in the event that either MERCK or ARRIS is unable to initiate or prosecute such action solely in its own name as provided herein, the other party will join such action voluntarily and will execute and cause its Affiliates under its control to execute all documents necessary for the party seeking to initiate litigation to prosecute and maintain such action. In connection with any such action, MERCK and ARRIS will cooperate fully and will p...
Enforcement and Defense. (a) As soon as practicable, each of Licensor and Licensee shall give the other party notice of (i) any infringement of the Patent Rights, (ii) any claim of invalidity, unenforceability, or non-infringement of the Patent Rights or (iii) any misappropriation or misuse of the Know-How that may come to such party’s attention. Licensee and Licensor shall thereafter consult and cooperate fully to determine a course of action, including but not limited to the commencement of legal action by either or both Licensee and Licensor, to terminate any infringement, or claim of invalidity, unenforceability, or non-infringement, of the Patent Rights or any misappropriation or misuse of the Know-How. However, Licensor, upon notice to Licensee, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Licensor and Licensee, or to control the defense of any declaratory judgment action relating to the Patent Rights or the Know-How. Licensor shall promptly inform Licensee if it elects not to exercise such first right and Licensee shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Licensee and, if necessary, Licensor; provided that Licensee shall not admit the invalidity or fail to defend the validity of any the Patent Right without Licensor’s prior consent which shall not be unreasonably withheld. Each party shall have the right to be represented by counsel of its own choice. In connection with any action, Licensee and Licensor will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto.
(b) In the event that Licensor elects not to initiate and prosecute an action as provided in Section 6.1(a), and Licensee elects to do so, the costs of any agreed-upon course of action, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Licensor and Licensee; provided, that in the event that Licensee is unable to initiate or prosecute such action solely in its own name, Licensor will join such action voluntarily and will execute and cause its Affiliates to...
Enforcement and Defense. (i) With respect to any Infringement that involves activity other than a [***] or with respect to any Patent Challenge not covered in Section 10.3(b)(iv), [***] will have the sole right (but not the obligation) to take the appropriate steps to enforce any Patent within the [***] against such Infringement or to defend such Patent Challenge (as applicable), at its sole cost and discretion. [***] may, in any such instance, take steps including the initiation, prosecution and control any suit, proceeding or other legal action by counsel of its own choice. [***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(ii) To the extent any Infringement involves the [***], [***] will have the first right (but not the obligation), at its [***], to take the appropriate steps to enforce any Patent within the [***] against [***], including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceeding, or action by counsel of its own choice.
(iii) If [***] fails to take the appropriate steps to enforce any applicable [***] within [***] after the date one Party has provided notice to the other Party of a Field Infringement, then [***] will have the right (but not the obligation), at its sole expense, to take the appropriate steps to enforce such Patent(s), including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceeding, or action by counsel of its own choice.
(iv) The Party controlling any suit, action or proceeding against a [***] pursuant to Section 10.3(b)(ii) or 10.3(b)(iii) shall also have the right to control the response to any Patent Challenge asserted by the alleged infringer(s) as a counterclaim or affirmative defense in such suit, proceeding, or action.
Enforcement and Defense. 7.5.1 Each Party shall give the other Party notice of either (i) any infringement of Arvinas Patent Rights or Joint Patent Rights, or (ii) any misappropriation or misuse of Arvinas Know-How, in each case that is reasonably relevant to the Development or Commercialization of any Compound or Product exclusively licensed by Pfizer hereunder and that comes to such Party’s attention. Pfizer and Arvinas shall thereafter consult and cooperate fully to determine a course of action, including the commencement of legal action by either or both Pfizer and Arvinas, to terminate any such infringement of Arvinas Patent Rights or Joint Patent Rights or any misappropriation or misuse of Arvinas Know-How, subject to the provisions set forth below.
7.5.2 Except as provided under Section 7.6 or any mutually agreed amendment made in accordance with Section 7.2.2(f), Arvinas, upon notice to Pfizer, shall have the first right to initiate and prosecute any such legal action at its own expense, or to control the defense of any declaratory judgment action, relating to Arvinas Patent Rights or Arvinas Know-How. Pfizer shall have the right to join any such action initiated by Arvinas to the extent permissible by law. With respect to any such legal action regarding an infringement of any Arvinas Patent Right that directly impacts any exclusive rights of Pfizer hereunder regarding any Compound or Product, if Arvinas does not initiate any such legal action, at least [**] prior to the deadline for bringing an action without resulting loss of rights, of any written request by Pfizer for Arvinas to do so following consultation in accordance with Section 7.5.1, Pfizer shall have the right, but shall not be obligated, to bring an infringement action with respect to such infringement solely to the extent directly related to Pfizer’s exclusive rights hereunder (i.e., not related to any PROTACs directed to any target other than a Target) at its own expense, and under its own direction and control, or settle any such action, proceeding or dispute by license, subject to the following. Arvinas shall have the right to participate and be represented in any such suit by its own counsel at its own expense, provided that Pfizer shall retain overall responsibility for the prosecution of such suit or proceedings in such event. No settlement of any such action or proceeding which restricts the scope, or adversely affects the enforceability, of an Arvinas Patent Right, or which could be reasonably expecte...
Enforcement and Defense. (a) Varex shall advise Varian reasonably promptly if (and in no event later than ten (10) business days after) Varex or any member of its Group becomes aware of any unauthorized Third-Party use of the Licensed Marks. Neither Varex nor any member of its Group shall take any steps to contact any Third Party with respect to any such unauthorized use.
(b) As between the Parties, Varian shall have the sole right, but not any obligation, to determine whether and in what manner to respond to any unauthorized Third-Party use of the Licensed Marks and shall be exclusively entitled to any remedies, including monetary damages, related thereto or resulting therefrom. As between the Parties, Varian shall have the sole right, but not any obligation, to defend and control the defense of the validity and enforceability of the Licensed Marks. If reasonably requested by Varian, Varex and the other members of its Group shall reasonably cooperate with Varian in connection with any such activities, at Varian’s cost and expense.
Enforcement and Defense. Upon becoming aware of a conflicting use or an act of infringement, and communicating about the same pursuant to Section 6.2 above, Licensee shall discuss with Licensor the nature of and circumstances surrounding such conflicting use or act of infringement. Subject to the consent of Licensor, which consent shall not be unreasonably withheld, Licensee shall thereafter, at its own expense, have the right but not the obligation to initiate actions and take steps relating to such conflicting use or act of infringement. Licensee may settle any dispute with a Third Party regarding such conflicting use or act of infringement; provided that Licensee shall not have the right to settle, compromise or take any action in any dispute which diminishes, limits or inhibits the scope, validity or enforceability of the Patent Rights without the express written consent of Licensor. In the event that Licensee exercises its rights under this Section 6.3, Licensee agrees to keep Licensor fully informed of all developments in connection with any settlements and negotiations and to consult with Licensor prior to making any final settlement, consent judgment or other voluntary disposition of the matter. If Licensee chooses not to take or continue any action or step relating to such conflicting use or act of infringement, Licensor shall have the right to engage in negotiations and proceedings relating to such conflicting use or act of infringement solely at its own expense; provided that it keeps Licensee fully informed of the progress of such negotiations and proceedings and consults with Licensee prior to making any final settlement, consent judgment or other voluntary disposition of the matter. Each party agrees to cooperate with the other to the fullest extent possible with respect to any negotiations or proceedings under this Section 6.3.
