Common use of Infringement Action by a Third Party Clause in Contracts

Infringement Action by a Third Party. In the event of the institution of any suit by a third party against Somaxon for patent infringement arising from the manufacture, use, sale, distribution or marketing of any Licensed Product, Somaxon shall promptly notify ProCom One in writing of such suit. Somaxon shall have the sole right to defend such suit at its own cost and expense, and ProCom One shall, at Somaxon’s expense, assist and cooperate with Somaxon in the defense of such suit. If a judgment is rendered against Somaxon in such suit and Somaxon is required to pay any monies or royalty for past or future use (“Third Party Expense”) based solely upon use of the Compounds both (i) in the Field, and (ii) within the Ranges, Somaxon may deduct the Third Party Expense (and its cost of defense of such action) from its future royalty payment obligations to ProCom One pursuant to Section 4.3 up to an amount not to exceed one-half (1/2) of such future Royalty payment obligations to ProCom One pursuant to such Section 4.2. Such deductions shall further not exceed one-half (1/2) of each quarterly Royalty payment made by Somaxon to ProCom One pursuant to Section 4.2 hereof.

Infringement Action by a Third Party. In the event of the institution of any suit by a third party against Somaxon for patent infringement arising from the manufacture, use, sale, distribution or marketing of any Licensed Product, Somaxon shall promptly notify ProCom One in writing of such suit. Somaxon shall have the sole right to defend such suit at its own cost and expense, and ProCom One shall, at Somaxon’s 's expense, assist and cooperate with Somaxon in the defense of such suit. If a judgment is rendered against Somaxon in such suit and Somaxon is required to pay any monies or royalty for past or future use (“"Third Party Expense”") based solely upon use of the Compounds both (i) in the Field, and (ii) within the Ranges, Somaxon may deduct the Third Party Expense (and its cost of defense of such action) from its future royalty payment obligations to ProCom One pursuant to Section 4.3 up to an amount not to exceed one-half (1/2) of such future Royalty payment obligations to ProCom One pursuant to such Section 4.2. Such deductions shall further not exceed one-half (1/2) of each quarterly Royalty payment made by Somaxon to ProCom One pursuant to Section 4.2 hereof.