Common use of Filing and Prosecution Clause in Contracts

Filing and Prosecution. Prior to the exercise of Merrimack’s option to obtain a Commercial License as set forth in Section 3.1(b), Merrimack may wish to file or to have Dyax file (as set forth below) a provisional application. Prior to filing a provisional application, Merrimack shall provide a draft of each such proposed provisional application to Dyax for review and comment and discussion related to inventorship [**] days prior to filing. During the [**] day review period: (i) Dyax may review and comment upon any such provisional patent application and Merrimack shall incorporate Dyax’s reasonable comments; and (ii) Merrimack and Dyax shall use reasonable and good faith efforts to reach a common understanding of inventorship of claims. (A) If Merrimack and Dyax agree that the inventions claimed in the provisional application are Dyax Inventions as defined in Section 5.2(b)(i)(A) or Joint Inventions as defined in Section 5.2(b)(iii), then Dyax will, at Merrimack’s request and expense, file and prosecute any Patent Rights in any country requested by Merrimack with a patent counsel reasonably acceptable to Merrimack. For clarity, this means that Dyax will also file and prosecute any nonprovisional Patent Rights based on such provisional applications prior to Merrimack exercising its right to obtain a Commercial License as set forth in Section 3.1(b). Thereafter, Dyax’s Patent Rights in such Dyax Inventions or Joint Inventions shall be deemed to be included in the rights licensed to Merrimack under Section 3.1. Dyax shall (i) keep Merrimack fully informed as to the filing, prosecution and maintenance of such Patent Rights, (ii) furnish to Merrimack copies of all documents relevant to any such filing, prosecution and maintenance, and (iii) allow Merrimack [**] days to review and comment upon, and to incorporate Merrimack’s reasonable comments into, any such document filed with any patent office with respect to such Patent Rights prior to filing such documents. (B) If the inventions described in the provisional application are mutually agreed to be Merrimack Inventions or determined to be Merrimack Inventions pursuant to Section 5.3(a)(ii)(C) below, then Merrimack shall have the sole and exclusive right to file and prosecute any Patent Rights based on such provisional application in any country, at Merrimack’s expense. (C) If Merrimack and Dyax cannot, despite reasonable and good faith efforts, reach a common understanding of inventorship of claims of any such draft provisional application, then Dyax shall file the provisional patent application. Merrimack and Dyax [**] reasonably acceptable to both Parties prior to the [**], who shall make a final determination of inventorship (in accordance with [**]) as to the [**] which was [**] to such [**]. Such [**] shall be [**] upon the [**] and their respective [**]. If the [**] is [**] to be a [**] under Section [**] or a [**] under Section [**] then [**] shall continue to [**] in any country requested by [**] at [**] expense. Thereafter, such [**] in such [**] or [**] shall be deemed to be included in the rights licensed to Merrimack under Section 3.1. Dyax shall (i) keep Merrimack fully informed as to the filing, prosecution and maintenance of such Patent Rights, (ii) furnish to Merrimack copies of all documents relevant to any such filing, prosecution and maintenance, and (iii) allow Merrimack [**] days to review and comment upon, and to incorporate Merrimack’s reasonable comments into, any such document filed with any patent office with respect to such Patent Rights prior to filing such documents.

Filing and Prosecution. Prior to the exercise of Merrimack’s its option to obtain a Commercial License as set forth in Section 3.1(b), Merrimack may wish to file or to have Dyax file (as set forth below) a provisional application. Prior to filing a provisional application, Merrimack shall provide a draft of each such proposed provisional application to Dyax for review and comment and discussion related to inventorship [**] days prior to filing. During the [**] day review period: (i) Dyax may review and comment upon any such provisional patent application and Merrimack shall incorporate Dyax’s reasonable comments; and (ii) Merrimack and Dyax shall use reasonable and good faith efforts to reach a common understanding of inventorship of claims. (A) If Merrimack and Dyax agree that the inventions claimed in the provisional application are Dyax Inventions as defined in Section 5.2(b)(i)(A) or Joint Inventions as defined in Section 5.2(b)(iii), then Dyax will, will at Merrimack’s request and expense, expense file and prosecute any Patent Rights in any country requested for any invention solely owned by Merrimack with Dyax which is directed or relating to any Antibody that are identified, generated, developed, produced, optimized, or obtained by Dyax from a patent counsel reasonably acceptable to Merrimack. For clarity, this means Dyax Library that is delivered by Dyax will also file and prosecute any nonprovisional Patent Rights based on such provisional applications prior to Merrimack exercising its right to obtain a Commercial License as set forth in Section 3.1(b)connection with the Research Program. Thereafter, Dyax’s such Patent Rights in such Dyax Inventions or Joint Inventions shall be deemed to be included in the rights licensed to Merrimack under Section 3.1. Dyax shall (i) keep Merrimack fully informed as to the filing, prosecution and maintenance of such Patent Rights, (ii) furnish to Merrimack copies of all documents relevant to any such filing, prosecution and maintenance, and (iii) allow Merrimack [**] days to review and comment upon, and to incorporate Merrimack’s reasonable comments into, any such document filed with any patent office with respect to such Patent Rights prior to filing such documents. (B) If the inventions described . Upon exercise of its option to obtain a Commercial License with respect to a Dyax Antibody, as set forth in the provisional application are mutually agreed to be Section 3.1(b), Merrimack Inventions or determined to be Merrimack Inventions pursuant to Section 5.3(a)(ii)(C) below, then Merrimack shall have the sole and exclusive right to file and prosecute any Patent Rights based on such provisional application in any countrymay, at Merrimack’s expense. expense (Ci) If Merrimack in Dyax’s name, file, maintain, defend and enforce Patent Rights for any invention solely owned by Dyax cannot, despite reasonable which is directed or relating to such Dyax Antibody and good faith efforts, reach a common understanding of inventorship of claims assume the prosecution of any such draft provisional applicationPatent Rights filed by Dyax pursuant to this Section 5.3, then or (ii) require Dyax shall file the provisional patent application. to assign to Merrimack and any Patent Rights for any invention solely owned by Dyax [**] reasonably acceptable to both Parties prior to the [**], who shall make a final determination of inventorship (in accordance with [**]) as to the [**] which was [**] is directed or relating to such [**]Dyax Antibody. Such [**] shall be [**] upon the [**] and their respective [**]. If the [**] is [**] Dyax will use reasonable efforts to be a [**] under Section [**] or a [**] under Section [**] then [**] shall continue to [**] in any country requested by [**] at [**] expense. Thereafter, such [**] cooperate with Merrimack in such [**] or [**] shall be deemed to be included in the rights licensed to Merrimack under Section 3.1activities. Dyax shall (i) keep Merrimack fully informed as to the filing, prosecution and maintenance of such Patent Rights, (ii) furnish to Merrimack copies of all documents relevant to any such filing, prosecution and maintenance, and (iii) allow Merrimack have [**] days to review and comment uponupon any patent application before it is filed by Merrimack pursuant to this Section 5.3, and to Merrimack shall incorporate Dyax’s reasonable comments. For the avoidance of doubt, Dyax acknowledges and agrees that if, upon Merrimack’s reasonable comments into, any such document filed with any patent office election to obtain a Commercial License with respect to a Dyax Antibody, Dyax is unable to obtain a CAT Product License with respect to the Target against which such Dyax Antibody is directed because Dyax no longer has any CAT Product License options available to it under the terms of the CAT Agreement, Merrimack’s rights under clauses (i) and (ii) of this paragraph above shall apply notwithstanding such inability by Dyax to obtain a CAT Product License and Merrimack may, at Merrimack’s expense, require Dyax to assign to Merrimack any Patent Rights prior for any invention solely owned by Dyax which is directed or relating to filing such documentsDyax Antibody.

Filing and Prosecution. Prior to the exercise of Merrimack’s its option to obtain a Commercial License as set forth in Section 3.1(b), Merrimack may wish to file or to have Dyax file (as set forth below) a provisional application. Prior to filing a provisional application, Merrimack shall provide a draft of each such proposed provisional application to Dyax for review and comment and discussion related to inventorship [**] days prior to filing. During the [**] day review period: (i) Dyax may review and comment upon any such provisional patent application and Merrimack shall incorporate Dyax’s reasonable comments; and (ii) Merrimack and Dyax shall use reasonable and good faith efforts to reach a common understanding of inventorship of claims. (A) If Merrimack and Dyax agree that the inventions claimed in the provisional application are Dyax Inventions as defined in Section 5.2(b)(i)(A) or Joint Inventions as defined in Section 5.2(b)(iii), then Dyax will, will at Merrimack’s request and expense, expense file and prosecute any Patent Rights in any country requested for any invention solely owned by Merrimack with Dyax which is directed or relating to any Antibody that are identified, generated, developed, produced, optimized, or obtained by Dyax from a patent counsel reasonably acceptable to Merrimack. For clarity, this means Dyax Library that is delivered by Dyax will also file and prosecute any nonprovisional Patent Rights based on such provisional applications prior to Merrimack exercising its right to obtain a Commercial License as set forth in Section 3.1(b)connection with the Research Program. Thereafter, Dyax’s such Patent Rights in such Dyax Inventions or Joint Inventions shall be deemed to be included in the rights licensed to Merrimack under Section 3.1. Dyax shall (i) keep Merrimack fully informed as to the filing, prosecution and maintenance of such Patent Rights, (ii) furnish to Merrimack copies of all documents relevant to any such filing, prosecution and maintenance, and (iii) allow Merrimack [**] days to review and comment upon, and to incorporate Merrimack’s reasonable comments into, any such document filed with any patent office with respect to such Patent Rights prior to filing such documents. (B) If the inventions described . Upon exercise of its option to obtain a Commercial License with respect to a Dyax Antibody, as set forth in the provisional application are mutually agreed to be Section 3.1(b), Merrimack Inventions or determined to be Merrimack Inventions pursuant to Section 5.3(a)(ii)(C) below, then Merrimack shall have the sole and exclusive right to file and prosecute any Patent Rights based on such provisional application in any countrymay, at Merrimack’s expense. expense (Ci) If Merrimack in Dyax’s name, file, maintain, defend and enforce Patent Rights for any invention solely owned by Dyax cannot, despite reasonable which is directed or relating to such Dyax Antibody and good faith efforts, reach a common understanding of inventorship of claims assume the prosecution of any such draft provisional applicationPatent Rights filed by Dyax pursuant to this Section 5.3, then or (ii) require Dyax shall file the provisional patent application. to assign to Merrimack and any Patent Rights for any invention solely owned by Dyax [**] reasonably acceptable to both Parties prior to the [**], who shall make a final determination of inventorship (in accordance with [**]) as to the [**] which was [**] is directed or relating to such [**]Dyax Antibody. Such [**] shall be [**] upon the [**] and their respective [**]. If the [**] is [**] Dyax will use reasonable efforts to be a [**] under Section [**] or a [**] under Section [**] then [**] shall continue to [**] in any country requested by [**] at [**] expense. Thereafter, such [**] cooperate with Merrimack in such [**] or [**] shall be deemed to be included in the rights licensed to Merrimack under Section 3.1activities. Dyax shall (i) keep Merrimack fully informed as to the filing, prosecution and maintenance of such Patent Rights, (ii) furnish to Merrimack copies of all documents relevant to any such filing, prosecution and maintenance, and (iii) allow Merrimack have [**] days to review and comment uponupon any patent application before it is filed by Merrimack pursuant to this Section 5.3, and to Merrimack shall incorporate Dyax’s reasonable comments. For the avoidance of doubt, Dyax acknowledges and agrees that if, upon Merrimack’s reasonable comments into, any such document filed with any patent office election to obtain a Commercial License with respect to a Dyax Antibody, Dyax is unable to obtain a CAT Product License with respect to the Target against which such Dyax Antibody is directed because Dyax no longer has any CAT Product License options available to it under the terms of the CAT Agreement, Merrimack’s rights under clauses (i) and (ii) of this paragraph above shall apply notwithstanding such inability by Dyax to obtain a CAT Product License and Merrimack may, at Merrimack’s expense, require Dyax to assign to Merrimack any Patent Rights prior for any invention solely owned by Dyax which is directed or relating to filing such documentsDyax Antibody.

Filing and Prosecution. Prior to the exercise of Merrimack’s option to obtain a Commercial License as set forth in Section 3.1(b), Merrimack may wish to file or to have Dyax file (as set forth below) a provisional application. Prior to filing a provisional application, Merrimack shall provide a draft of each such proposed provisional application to Dyax for review and comment and discussion related to inventorship [**] days prior to filing. During the [**] day review period: (i) Dyax may review and comment upon any such provisional patent application and Merrimack shall incorporate Dyax’s reasonable comments; and (ii) Merrimack and Dyax shall use reasonable and good faith efforts to reach a common understanding of inventorship of claims. (A) If Merrimack and Dyax agree that the inventions claimed in the provisional application are Dyax Inventions as defined in Section 5.2(b)(i)(A) or Joint Inventions as defined in Section 5.2(b)(iii), then Dyax will, at Merrimack’s request and expense, file and prosecute any Patent Rights in any country requested by Merrimack with a patent counsel reasonably acceptable to Merrimack. For clarity, this means that Dyax will also file and prosecute any nonprovisional Patent Rights based on such provisional applications prior to Merrimack exercising its right to obtain a Commercial License as set forth in Section 3.1(b). Thereafter, Dyax’s Patent Rights in such Dyax Inventions or Joint Inventions shall be deemed to be included in the rights licensed to Merrimack under Section 3.1. Dyax shall (i) keep Merrimack fully informed as to the filing, prosecution and maintenance of such Patent Rights, (ii) furnish to Merrimack copies of all documents relevant to any such filing, prosecution and maintenance, and (iii) allow Merrimack [**] days to review and comment upon, and to incorporate Merrimack’s reasonable comments into, any such document filed with any patent office with respect to such Patent Rights prior to filing such documents. (B) If the inventions described in the provisional application are mutually agreed to be Merrimack Inventions or determined to be Merrimack Inventions pursuant to Section 5.3(a)(ii)(C) below, then Merrimack shall have the sole and exclusive right to file and prosecute any Patent Rights based on such provisional application in any country, at Merrimack’s expense. (C) If Merrimack and Dyax cannot, despite reasonable and good faith efforts, reach a common understanding of inventorship of claims of any such draft provisional application, then Dyax shall file the provisional patent application. Merrimack and Dyax [**] ]reasonably acceptable to both Parties prior to the [**], who shall make a final determination of inventorship (in accordance with [**]) as to the [**] which was [**] to such [**]. Such [**] shall be [**] upon the [**] and their respective [**]. If the [**] is [**] to be a [*] under Section [*] or a [*] under Section [**] or a [**] under Section [**] ], then [**] ]shall continue to [**] in any country requested by [**] at [**] expense. Thereafter, such [**] in such [**] or [**] shall be deemed to be included in the rights licensed to Merrimack under Section 3.1. Dyax shall (i) keep Merrimack fully informed as to the filing, prosecution and maintenance of such Patent Rights, (ii) furnish to Merrimack copies of all documents relevant to any such filing, prosecution and maintenance, and (iii) allow Merrimack [**] days to review and comment upon, and to incorporate Merrimack’s reasonable comments into, any such document filed with any patent office with respect to such Patent Rights prior to filing such documents.