Common use of Defense of Third Party Action Clause in Contracts

Defense of Third Party Action. If a Third Party institutes any action to have any patent within the Patents within the Licensed Technology other than Enabling Technology held invalid, non-infringed or unenforceable, the Parties agree to discuss, in good faith with each other (and with the owner of the applicable Patents if these are not owned by Maxygen or its Affiliates, and any Third Parties to whom Maxygen or its Affiliates has granted rights regarding enforcement or defense of such Patents prior to the Effective Date), which Party (or Third Party) should control the defense of such action. All of the out-of-pocket costs and legal fees relative to such defense shall be shared if and to the extent agreed by the Parties (and applicable Third Parties). If there is any recovery of out-of-pocket costs and legal fees, the recovery shall, unless otherwise agreed, be used to reimburse the Parties (and applicable Third Parties) according to the proportion of out-of-pocket costs and legal fees each Party (or applicable Third Party) paid, and the remaining recovery will be split according to the proportion of out-of-pocket costs and legal fees each Party (or applicable Third Party) paid. If the Parties cannot agree on which Party will prosecute a suit or the sharing of the costs, then as between the Parties, (i) Maxygen shall have the right to determine whether and, if so, how to prosecute or defend such suit and will be entitled to name CPC as a party in such suit if CPC is a necessary or indispensable party, and (ii) Maxygen shall be responsible for all of the out-of-pocket costs and legal fees of Maxygen and CPC relative to such suit Maxygen prosecutes or defends, and any recoveries from such suit shall belong exclusively to Maxygen.

Defense of Third Party Action. If a Third Party institutes any action to have any patent within the Patents Patent Rights within the Licensed Technology other than Enabling Technology held invalid, non-infringed or and/or unenforceable, the Parties agree to discuss, in good faith with each other (and with the owner of the applicable Patents Patent Rights if these are not owned by Maxygen or and/or its Affiliates, and any Third Parties to whom Maxygen or and/or its Affiliates has granted rights regarding enforcement or and/or defense of such Patents Patent Rights prior to the Effective Closing Date), which Party (or and/or Third Party) should control the defense of such action. All of the out-of-pocket costs and legal fees relative to such defense shall be shared if and to the extent as agreed by the Parties (and applicable Third Parties). If there is any recovery of out-of-pocket costs and legal fees, the recovery shall, unless otherwise agreed, be used to reimburse the Parties (and applicable Third Parties) according to the proportion of out-of-pocket costs and legal fees each Party (or and/or applicable Third Party) paid, and the remaining recovery will be split according to the proportion of out-of-pocket costs and legal fees each Party (or and/or applicable Third Party) paid. If the Parties cannot agree on which Party will prosecute a suit or and/or the sharing of the costs, then as between the Parties, (i) Maxygen and its Affiliates shall have the right to determine whether and, if so, how to prosecute or and/or defend such suit and will be entitled to name CPC Bayer as a party in such suit if CPC Bayer is a necessary or and/or indispensable party, and (ii) Maxygen shall be responsible for all of the out-of-pocket costs and legal fees of Maxygen and CPC relative to such suit Maxygen prosecutes or defendsand/or any of its Affiliates files, and any recoveries from such suit shall belong exclusively to MaxygenMaxygen and its Affiliates.