Common use of Infringement by Third Parties Clause in Contracts

Infringement by Third Parties. (a) Curis and Genentech shall promptly notify the other in writing of any alleged or threatened infringement of any Curis Patent, Genentech Patent or Joint Patent of which they become aware. (b) Genentech shall have the first right, but not the obligation, to bring and control any action or proceeding, at its own expense and by counsel of its own choice, with respect to infringement of any Genentech Patent. (c) The enforcement of any Curis Patent that is subject to the provisions of Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b). (d) Curis shall have the first right, but not the obligation, to bring and control any action or proceeding with respect to infringements of any Curis Patent other than those subject to Section 10.2(b). (e) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 shall have the right, at its own expense and by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party or jointly by the Parties. If Curis fails to bring an action or proceeding with respect to a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: (i) sixty (60) days following the notice of alleged infringement; or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis shall have the right, at its own expense and by counsel of its own choice, to be represented in any such action. In the event a Party brings an infringement action, the other Party shall cooperate fully, including if required to bring such action, the furnishing of a power of attorney. Neither Party shall have the right to settle any patent infringement action under this Section 10.4 in a manner that diminishes the rights or interests of the other Party without the consent of such other Party. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreements. Except as provided in the preceding sentence or otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of the Parties, shall be: (i) shared equally by the Parties in the case of litigation pursuant to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%).

Infringement by Third Parties. (a) Curis Genetronics and Genentech Ethicon shall promptly notify the other in writing of any alleged or threatened infringement of any Curis Patent, Genentech patent included in the Genetronics Patent Rights or the Joint Patent Rights of which they become aware. (b) Genentech . Both parties shall cooperate with each other to terminate such infringement without litigation. Genetronics shall have the first right, but not the obligation, right to bring and control any action or proceedingproceeding with respect to infringement of any patent included in the Genetronics Patent Rights, at its own expense and by counsel of its own choice, with respect to infringement of any Genentech Patent. (c) The enforcement of any Curis Patent that is subject to the provisions of Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b). (d) Curis and Ethicon shall have the first right, but not the obligation, right to bring and control be represented in any action or proceeding with respect to infringements of any Curis Patent other than those subject to Section 10.2(b). (e) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 shall have the rightsuch action, at its own expense and by counsel of its own choice. In the event any patent included in the Joint Patent Rights is infringed by a Third Party, the party responsible for prosecution and maintenance of the applicable Joint Patent Rights under Section 10.2(b) shall have the right to bring and control any action or proceeding with respect to such patent, and the other party shall have the right to be represented in any such action involving by counsel of its own choice, and the parties shall share equally in the expenses thereof. With respect to infringement of any patent owned solely by such Party or jointly by included in the Parties. If Curis Genetronics Patent Rights, if Genetronics fails to bring an action or proceeding with respect to a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: within (ia) sixty (60) 90 days following the notice of alleged infringement; infringement or (iib) ten (10) 10 days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech Ethicon shall have the right to bring and control any such action action, at its own expense and by counsel of its own choice, and Curis Genetronics shall have the rightright to be represented in any such action, at its own expense and by counsel of its own choice, to be represented in any such action. In the event a Party party brings an infringement action, the other Party party shall cooperate fully, including if required to bring such action, the furnishing of a power of attorney. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.4 10.5 in a manner that diminishes the rights or interests of the other Party party without the consent of such other Partyparty. Both In the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreements. Except as provided in the preceding sentence or otherwise agreed to by the Parties as part of a cost-sharing arrangementevent Genetronics brings such action, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of the PartiesGenetronics and Ethicon, shall be: (i) shared equally by the Parties in the case of litigation pursuant belong to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%)Genetronics.

Infringement by Third Parties. (a) Curis Renovis and Genentech shall promptly notify the other in writing of any alleged or threatened infringement (where such infringement relates to the Collaboration) of any Curis Renovis Patent, Genentech Patent or Joint Patent of which they become aware. (b) Subject to the rights of the Existing Licensors pursuant to the Existing License Agreements, as between the Parties, Genentech shall have the first right, but not the obligation, to bring and control any action or proceeding, at its own expense and by counsel of its own choice, with respect to infringement of any Genentech Patent. (c) The enforcement of any Curis Renovis Patent that is subject to the provisions of Section 10.2(b10.2(c) against any Third Party shall be governed by such Section 10.2(b10.2(c). (d) Curis Renovis shall have the first right, but not the obligation, to bring and control any action or proceeding with respect to infringements of any Curis Renovis Patent other than those subject to Section 10.2(b10.2(c). (e) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d10.2(b). (f) The Party not bringing an action under this Section 10.4 shall have the right, at its own expense and by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party or jointly by the Parties. If Curis Renovis fails to bring an action or proceeding with respect to a patent that is owned or Controlled by Curis Renovis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: (i) sixty (60) days following the notice of alleged infringement; or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis Renovis shall have the right, at its own expense and by counsel of its own choice, to be represented in any such action. In the event a Party brings an infringement action, the other Party shall cooperate fully, including if required to bring such action, the furnishing of a power of attorney. Neither Party shall have the right to settle any patent infringement action under this Section 10.4 in a manner that diminishes the rights or interests of the other Party Party, or imposes any additional obligation on the other Party, without the consent of such other Party. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreements. Except as provided in the preceding sentence or otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of the Parties, shall be: (i) shared equally by the Parties in the case of litigation pursuant to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Genentech Product shall be treated as Net Sales of such Lead Product or Collaboration Genentech Product for purposes of this Agreement. IfIn the event that Renovis brings an infringement action under this Section 10.4, within ninety (90) days following notice from Curis any portion of evidence any recovery that Renovis acquires hereunder shall be first applied to reimburse Renovis’ direct costs of an unabated infringing act such litigation and then to cover Genentech’s damages, if any, attributable to such infringement, and any portion of such recovery that is attributable to lost sales of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual treated as Net Sales of such Curis Genentech Product for purposes of this Agreement. To the extent that Renovis is unable to grant Genentech the prosecution rights set forth in each country this Section 10.4 as a result of restrictions contained in the Territory in which Existing License Agreements, Renovis shall use all diligent efforts to secure such Third Party’s infringing act results in rights for Genentech promptly following the marketing and sale execution of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%)this Agreement.

Infringement by Third Parties. (a) Curis ACADIA and Genentech Allergan shall promptly notify the other in writing of any alleged or threatened infringement of any Curis Patentpatent included in the Allergan Patents, Genentech Patent ACADIA Patents or Joint Patent Collaboration Patents of which they become aware. In the event any alleged or threatened infringement of any patent included in the Allergan Patents, ACADIA Patents or Collaboration Patents by a Third Party cannot be terminated without litigation, the provisions of Section 10.4(b) or (c), as applicable, and Section 10.4(d) shall apply. (b) Genentech Allergan shall have the first right, but not the obligation, to bring and control any action or proceeding, at its own expense and by counsel of its own choice, with respect to infringement of any Genentech Patenta patent (i) included in the Allergan Patents, unless such Allergan Patents are then subject to an exclusive license granted to ACADIA under Section 7.5(b), or (ii) included in the Collaboration Patents or ACADIA Patents to which Allergan then has an exclusive license under Section 7.2, to the extent the claims in such Collaboration Patents or ACADIA Patents are limited to Licensed Target/Chemistries or Designated Target/Chemistries in the Field. (c) The enforcement of any Curis Patent that is subject to the provisions of Except as provided in Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b10.4(b). (d) Curis , ACADIA shall have the first right, but not the obligation, right to bring and control any action or proceeding with respect to infringements of any Curis Patent other than those subject a patent (i) included in the ACADIA Patents or the Collaboration Patents or (ii) included in the Allergan Patents to which ACADIA then has an exclusive license under Section 10.2(b7.5(b). (ed) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party party not bringing an the action under this Section 10.4 shall have the right, at its own expense and by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party party or jointly by the Partiesparties. If Curis a party fails to bring an action or proceeding with respect to a patent that is owned by, or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentechto, Genentech the other party within: (i) sixty (60) days following the notice of alleged infringement; or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech such other party shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis the party initially declining to bring such action shall have the right, at its own expense and by counsel of its own choice, to be represented in any such action. In the event a Party party brings an infringement action, the other Party party shall cooperate fully, including if required to to 23. bring such action, the furnishing of a power of attorney. Neither Party party shall have the right to settle any patent infringement action under this Section 10.4 in a manner that diminishes the rights or interests of the other Party party without the consent of such other Party. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreementsparty. Except as provided in the preceding sentence or otherwise agreed to by the Parties parties as part of a cost-cost sharing arrangement, any recovery realized as a result of such litigationaction, after reimbursement of any litigation out-of-pocket expenses of the PartiesAllergan and ACADIA in connection with such action, shall be: (i) shared equally by be divided between the Parties parties in accordance with their relative economic interests as directly related to the case of litigation pursuant to royalty payments described in Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%)8.6 hereof.

Infringement by Third Parties. (a) Curis ACADIA and Genentech Allergan shall promptly notify the other in writing of any alleged or threatened infringement of any Curis Patentpatent included in the Allergan Patents, Genentech Patent ACADIA Patents or Joint Patent Collaboration Patents of which they become aware. In the event any alleged or threatened infringement of any patent included in the Allergan Patents, ACADIA Patents or Collaboration Patents by a Third Party cannot be terminated without litigation, the provisions of Section 10.4(b) or (c), as applicable, and Section 10.4(d) shall apply. (b) Genentech Allergan shall have the first right, but not the obligation, to bring and control any action or proceeding, at its own expense and by counsel of its own choice, with respect to infringement of any Genentech Patenta patent (i) included in the Allergan Patents, unless such Allergan Patents are then subject to an exclusive license granted to ACADIA under Section 7.5(b), or (ii) included in the Collaboration Patents or ACADIA Patents to which Allergan then has an exclusive license under Section 7.2, to the extent the claims in such Collaboration Patents or ACADIA Patents are limited to Licensed Target/Chemistries or Designated Target/Chemistries in the Field. (c) The enforcement of any Curis Patent that is subject to the provisions of Except as provided in Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b10.4(b). (d) Curis , ACADIA shall have the first right, but not the obligation, right to bring and control any action or proceeding with respect to infringements of any Curis Patent other than those subject a patent (i) included in the ACADIA Patents or the Collaboration Patents or (ii) included in the Allergan Patents to which ACADIA then has an exclusive license under Section 10.2(b7.5(b). (ed) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party party not bringing an the action under this Section 10.4 shall have the right, at its own expense and by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party party or jointly by the Partiesparties. If Curis a party fails to bring an action or proceeding with respect to a patent that is owned by, or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentechto, Genentech the other party within: (i) sixty (60) days following the notice of alleged infringement; or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech such other party shall have the right to bring and control any such action at its own expense and by counsel of its own own 23. choice, and Curis the party initially declining to bring such action shall have the right, at its own expense and by counsel of its own choice, to be represented in any such action. In the event a Party party brings an infringement action, the other Party party shall cooperate fully, including if required to bring such action, the furnishing of a power of attorney. Neither Party party shall have the right to settle any patent infringement action under this Section 10.4 in a manner that diminishes the rights or interests of the other Party party without the consent of such other Party. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreementsparty. Except as provided in the preceding sentence or otherwise agreed to by the Parties parties as part of a cost-cost sharing arrangement, any recovery realized as a result of such litigationaction, after reimbursement of any litigation out-of-pocket expenses of the PartiesAllergan and ACADIA in connection with such action, shall be: (i) shared equally by be divided between the Parties parties in accordance with their relative economic interests as directly related to the case of litigation pursuant to royalty payments described in Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%)8.6 hereof.

Infringement by Third Parties. (a) Curis BMS and Genentech COLLABORATOR shall promptly notify the other in writing of any alleged or threatened infringement of any Curis PatentBMS Patents, Genentech Patent COLLABORATOR Patents or Joint Patent Jointly Funded Patents relating to the Collaboration Compounds or Products in the Territory of which they become aware. (b. The Party owning or Controlling any such BMS Patent or COLLABORATOR Patent and any Party controlling the enforcement of any such Jointly Funded Patent pursuant to Section 9.5(a) Genentech shall have the first right, but not the obligation, to bring enforce such Patent against any infringement described in this Section 9.5. The Party having any such first right shall notify the other Party in writing as to whether it intends to enforce any such Patent against the infringement as soon as reasonably practicable to allow the other Party sufficient time (if the first Party elects not to initiate an action) to initiate an action and control preserve all remedies, including temporary or preliminary relief, if the other Party elects to do so as provided below. In the case of infringement actions under the ▇▇▇▇▇-▇▇▇▇▇▇ Act or in Canada under the PM(NOC) Regulations (or any action other foreign counterpart), where a legal proceeding must be initiated within forty-five (45) days (or foreign counterpart period) after the initial notice to the patentee, the Party receiving such notice shall notify the other Party within five (5) days of such receipt and provide the paragraph (IV) notice letter (or the applicable foreign equivalent thereof), and the Party having the first right to enforce shall notify the other Party within twenty-one (21) days of such receipt as to whether it chooses to enforce the patent against the infringement. If the Party having the first right to enforce any Patent covered by this Section 9.5, against the infringement chooses not to initiate a legal proceeding, at its own expense and by counsel of its own choice, with respect to infringement of any Genentech Patent. (c) The enforcement of any Curis Patent that is subject to the provisions of Section 10.2(b) against any Third other Party shall be governed by such Section 10.2(b). (d) Curis shall have the first right, but not the obligation, to bring initiate such a proceeding, provided that, where the patent is a BMS Patent, the prior Party Written Consent of BMS, and control any where the patent is a COLLABORATOR Patent, the prior Party Written Consent of COLLABORATOR (in each case, not to be unreasonably withheld [*] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Securities and Exchange Commission. or delayed) shall be obtained prior to initiation of such a proceeding by the other Party. The Party controlling the enforcement action or proceeding shall consult with the non-controlling Party on litigation strategy and choice of counsel, and shall make all decisions regarding, and take all actions with respect to, such infringement action in the reasonable best interests of the Collaboration Compounds and Products; provided, that if both Parties’ Patents (and/or one or more Jointly Funded Patents) are involved in any litigation or other action relating to infringements the ▇▇▇▇▇-▇▇▇▇▇▇ Act (or any foreign counterpart), then the Party having control over the composition of matter patent will have the right to determine any Curis Patent other than those subject to Section 10.2(b). (e) litigation strategy and any decisions regarding such infringement. The enforcement of any Joint Patent against any Third non-controlling Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 shall have the right, at its own expense and right to be represented by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party or jointly by the Parties. If Curis fails to bring an action or proceeding with respect to a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: (i) sixty (60) days following the notice of alleged infringement; or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis shall have the right, at its own expense and by counsel of its own choice, to be represented in any such action. In the event a Party brings an infringement action, the other Party shall cooperate fully, including if required to bring such action, the furnishing of a power of attorney. Neither Party shall have the right to settle any patent infringement action under this Section 10.4 in a manner that diminishes the rights or interests of the other Party without the consent of such other Party. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreements. Except as provided in the preceding sentence or otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of the Parties, shall be: (i) shared equally by the Parties in the case of litigation pursuant to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%).

Infringement by Third Parties. (a) Curis BioAlliance and Genentech PAR shall promptly notify the other in writing of any alleged or threatened infringement or any challenge to the validity of the Trademark or any Curis Patent, Genentech Patent challenge to BioAlliance’s ownership of or Joint Patent PAR’ s right to use the Trademark in the Territory of which they become aware. (b) Genentech . Both parties shall use their reasonable efforts in cooperating with each other to terminate such infringement without litigation. BioAlliance shall have the first right, but not the obligation, sole right to bring and control any action or proceeding, proceeding with respect to infringement of any of the Trademark at its own expense and by counsel of its own choice, with subject to the following provisions. With respect to infringement of any Genentech Patent. (c) The enforcement of any Curis Patent that is subject to the provisions of Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b). (d) Curis shall have Trademark in the first rightTerritory, but not the obligation, to bring and control any action or proceeding with respect to infringements of any Curis Patent other than those subject to Section 10.2(b). (e) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 shall have the right, at its own expense and by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party or jointly by the Parties. If Curis if BioAlliance fails to bring an action or proceeding with respect to a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: within (ia) sixty (60) days following the notice of alleged infringement; infringement or (iib) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech PAR shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis BioAlliance shall have the right, at its own expense and by counsel of its own choiceexpense, to be represented in any such actionaction by counsel of its own choice. In the event a Party party brings an infringement action, the other Party party shall cooperate fully, including if required to bring such action, the furnishing of a power of attorneyattorney or being named as a party. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.4 6.4(a) relating to the Trademark in a manner that diminishes the rights or interests of the other Party party without the prior written consent of such the other Party. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 party, which shall not be subject to the rights of applicable Existing Licensors under applicable Existing License Agreementsunreasonably withheld, delayed or conditioned. Except as provided in the preceding sentence or otherwise agreed to by the Parties parties as part of a cost-sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of the PartiesBioAlliance and PAR, shall be: (i) shared equally by the Parties in the case of litigation pursuant to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%).

Infringement by Third Parties. (a) Curis BI and Genentech Vion shall promptly notify the each other in writing of any alleged or threatened infringement of any Curis Patent, Genentech Patent the Trademarks or Joint Patent the BI or Vion Technology of which they become aware. Both parties shall cooperate with each other in the defense or prosecution of infringement matters, including if required to bring such action, the furnishing of a power of attorney. (b) Genentech Vion shall have the first right, but not the obligation, right to bring and control any action or proceeding, proceeding with respect to any alleged or threatened infringement of the Vion Trademarks or the Vion Technology at its own expense and by counsel of its own choice, with respect and BI shall have the right, at its own expense, to infringement be represented in any such action by counsel of any Genentech Patent. (c) The enforcement of any Curis Patent that is subject to the provisions of Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b). (d) Curis its own choice. BI shall have the first right, but not the obligation, right to bring and control any action or proceeding with respect to infringements any alleged or threatened infringement of any Curis Patent other than those subject to Section 10.2(b). (e) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 shall have the right, BI Trademarks or BI Technology at its own expense and by counsel of its own choice, and Vion shall have the right, at its own expense, to be represented in any such action involving any patent owned solely by such Party or jointly by counsel of its own choice. (c) If either party with the Parties. If Curis first right as provided herein fails to bring an action or proceeding with respect to a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: within (i) sixty ninety (6090) days following the notice of alleged infringement; infringement or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech the other party shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis the party with the first right shall have the right, at its own expense and by counsel of its own choiceexpense, to be represented in any such action. action by counsel of its own choice; provided, however, that Vion shall not have the right to bring or control any such action with respect to the alleged infringement of a BI Trademark. (d) In the event a Party brings an infringement action, that the other Party shall cooperate fully, including if required party with the second right elects to bring an action as provided in Section 6.2(c), such party shall be entitled to: (i) reimbursement of fifty percent (50%) of its costs and expenses, or (ii) offset fifty percent (50%) of its costs and expenses against Royalties due hereunder (in the event that BI brings such action), but in no event shall the furnishing Royalty to Vion be reduced by more than fifty percent (50%) of a power the amount due in any given calendar quarter; provided, however, that in the event that the party with the second right elects to bring an action as provided in Section 6.2(c) with respect to any alleged or threatened infringement of attorney. any of the Trademarks, such party shall be entitled to reimbursement of all of its costs and expenses. (e) Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.4 6.2 in a manner that diminishes the rights or interests of the other Party party without the consent of such other Party. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreementsparty. Except as provided in the preceding sentence or otherwise agreed to by the Parties parties as part of a cost-cost sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of BI and Vion (including, any offset Royalties) shall belong to the Parties, shall be: (i) shared equally by party who brought the Parties in the case of litigation pursuant to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%)action.

Infringement by Third Parties. (a) Curis Kureha and Genentech Ocera shall promptly notify the other in writing of any alleged or threatened infringement of any Curis Patent, Genentech Patent or Joint Kureha Patent of which they become aware. (b) Genentech . Both parties shall use their commercially reasonable efforts in cooperating with each other to terminate such infringement without litigation. Kureha shall have the first right, but not the obligation, right to bring and control any action or proceedingproceeding with respect to infringement of any of the Kureha Patents, including, without limitation, any action or proceeding filed in connection with an abbreviated new drug application filed by a Third Party, in the Licensed Territory at its own expense and by counsel of its own choice, with respect to infringement of any Genentech Patent. (c) The enforcement of any Curis Patent that is subject to the provisions of Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b). (d) Curis shall have the first right, but not the obligation, to bring and control any action or proceeding with respect to infringements of any Curis Patent other than those subject to Section 10.2(b). (e) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 Ocera shall have the right, at its own expense and expense, to be represented in any such action by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party or jointly by the Parties. If Curis Kureha fails to bring an action or proceeding with respect to a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: within (ia) sixty (60) 120 days following the notice of alleged infringement; infringement or (iib) ten (10) 10 days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech Ocera shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis Kureha shall have the right, at its own expense and by counsel of its own choiceexpense, to be represented in any such actionaction by counsel of its own choice. In the event that a Party brings party brings, or wishes to bring, an infringement action, the other Party party shall cooperate fullyfully (including, including if legally required to bring such action, the joining as a party to such action or furnishing of a power of attorney); provided that the costs incurred by the other party for such cooperation (including reasonable attorney's fees) shall be borne by the party who wishes to bring such action. The party that brings and controls such action or proceeding shall keep the other parties updated regarding the status and costs of such action or proceeding. In no event shall either party admit the invalidity of, or after exercising its right to bring and control an action under this Section 7.3, fail to defend the validity of, any Kureha Patent without the other party’s prior written consent. Neither Party party shall have the right to settle any patent infringement action litigation under this Section 10.4 in a manner that diminishes 7.3 relating to any Kureha Patent without the rights or interests prior written consent of the other Party without the consent of such other Party. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 party, which shall not be subject to the rights of applicable Existing Licensors under applicable Existing License Agreementsunreasonably withheld. Except as provided in the preceding sentence or otherwise agreed to by the Parties parties as part of a cost-sharing arrangement, any recovery realized obtained by either party in connection with or as a result of such litigationany action contemplated by Sections 7.3, after reimbursement of any litigation expenses of the Partieswhether by settlement or otherwise, shall bebe shared in order as follows: (i) shared equally by the Parties party that initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the case of litigation pursuant to Section 10.4(c) or 10.4(e)action; or (ii) retained by Genentechthe other party shall then, except to the extent possible, recover its costs and expenses incurred in connection with the action; (iii) any remaining amounts after such reimbursement of the parties’ costs and expenses that any portion of such recovery that is are attributable to lost sales of a Lead Product or Collaboration Product lost profits with respect to Products shall be treated as Net Sales of such Lead Product or Collaboration Product Products for purposes of this Agreement. If, within ninety ; and (90iv) days following notice from Curis any other remaining amounts after such reimbursement of evidence of an unabated infringing act of a Third Party with respect the parties’ costs and expenses shall belong to a Genentech Patent the party that brought and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against controlled such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%)action.

Infringement by Third Parties. (a) Curis If any ▇▇▇▇▇▇▇ X-Patent, Neurocrine X-Patent, and/or DPC X-Patent is infringed by a Third Party in any country in connection with the manufacture, use and Genentech sale of a X-Product in such country, the Party to this Agreement first having knowledge of such infringement shall promptly notify the other others in writing writing. The notice shall set forth the known facts of any alleged or threatened that infringement of any Curis Patent, Genentech in reasonable detail. The Party owning such Patent or Joint Patent of which they become aware. (b) Genentech shall have the first primary right, but not the obligation, to bring and control any action or proceedinginstitute, at its own expense and by counsel of its own choiceprosecute, with respect to infringement of any Genentech Patent. (c) The enforcement of any Curis Patent that is subject to the provisions of Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b). (d) Curis shall have the first right, but not the obligation, to bring and control any action or proceeding with respect to infringements of any Curis Patent other than those subject to Section 10.2(b). (e) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 shall have the rightsuch infringement, at its own expense and by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party or jointly by the Partiesand at its own expense. If Curis the owning Party fails to bring an action or proceeding with respect to within a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: period of one hundred eighty (i) sixty (60180) days following after a request by the notice exclusively licensed Party of alleged infringement; or (ii) ten (10) days before the time limitinfringed subject matter to do so, if any, set forth in the appropriate laws and regulations for exclusively licensed Party of the filing of such actions, whichever comes first, Genentech infringed subject matter shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis shall have the right, at its own expense expense. The Party bringing suit under this Paragraph shall bear all costs and by counsel expenses of its own choice, to be represented in the suit and shall retain any such actiondamages or other monetary awards recovered. In the event a Party brings an infringement action, the A settlement or consent judgment or other Party shall cooperate fully, including if required to bring such action, the furnishing voluntary final disposition of a power of attorney. Neither suit brought by such exclusively licensed Party shall have the right to settle any patent infringement action under this Section 10.4 in a manner that diminishes the rights or interests of the other Party Paragraph may be entered into without the consent of the owning Party; provided that such settlement, consent judgment or other Partydisposition does not admit the invalidity or unenforceability of any Patent; and provided further, that any rights to continue the infringing activity in such settlement, consent judgment or other disposition shall be limited to the Product or activity that was the subject of the suit. Both A settlement or consent judgment or other voluntary final disposition of a suit brought by the right of Genentech to bring infringement actions owning Party under this Section 10.4 and Paragraph may be entered into only with the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreements. Except as provided in the preceding sentence or otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery realized as a result consent of such litigation, after reimbursement of any litigation expenses of the Parties, shall be: (i) shared equally by the Parties in the case of litigation pursuant to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third exclusively licensed Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%).

Infringement by Third Parties. (a) Curis and Genentech Each Party shall promptly notify the other in writing of any alleged alleged, suspected or threatened infringement of any Curis Patent, Genentech Patent or Joint Patent of which they become awareaware of any Axys Patents, or any PPGx Patent Rights. (b) Genentech PPGx shall have the first right, but not the obligation, right to bring and control any action or proceeding, proceeding with respect to infringement of any PPGx Patent Rights at its own expense and by counsel of its own choice, with respect to infringement of any Genentech Patent. (c) The enforcement of any Curis Patent that is subject to the provisions of Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b). (d) Curis shall have the first right, but not the obligation, to bring and control . In any action or proceeding with respect to infringements an infringement outside the field of Pharmacogenomics of any Curis PPGx Patent other than those subject to Section 10.2(bRights (a "Non-Field Infringement"). (e) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 , Axys shall have the right, at its own expense and by counsel of its own choiceexpense, to be represented in any action involving any patent owned solely by such Party or jointly by the PartiesNon-Field Infringement action. If Curis PPGx fails to bring an action or proceeding with respect to a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: such Non-Field Infringement within (i) sixty (60) days following the notice of alleged infringement; Non-Field Infringement or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech Axys shall have the right to bring and control any such Non-Field Infringement action at its own expense and by counsel of its own choice, and Curis PPGx shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. (c) Axys shall have the first right to bring and control any action or proceeding with respect to infringement of any Axys Patents at its own expense and by counsel of its own choice. In any action or proceeding with respect to an infringement in the field of Pharmacogenomics of an Axys Patent necessary to make, have made, use, offer to sell or sell any Product (a "Field Infringement"), PPGx shall have the right, at its own expense, to be represented in such Field Infringement action. If Axys fails to bring an action or proceeding with respect to any Field Infringement within (i) sixty (60) days following the notice or alleged Field Infringement or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, PPGx shall have the right to bring and control any such Field Infringement action at its own expense and by counsel of its own choice, and Axys shall have the right, at its own expense, to be represented in any such action. Field Infringement action by counsel of its own choice. (▇) ▇▇ the event of any infringement of a Patent Right jointly-owned hereunder, the Parties shall promptly discuss and decide the best way to carry out any action or proceeding. (e) In the event a either Party brings an infringement action, the other Party shall cooperate fully, including if required to bring such action, the furnishing of a power of attorney. Neither Party shall have the right to settle any patent infringement action litigation under this Section 10.4 4.3 in a manner that diminishes the rights or interests interest of the other Party without the consent of such other Party. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreements. Except as provided in the preceding sentence or otherwise agreed to by the Parties as part of a cost-cost sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of the PartiesPPGx and Axys, shall be: (i) shared equally by belong to the Parties in Party who brought the case of litigation pursuant to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%)action.

Infringement by Third Parties. (ai) Curis If any ANIKA, MITEK or a Joint Patent covering a Licensed Product is infringed by a Third Party in any country in connection with the manufacture, use and Genentech sale of a Licensed Product in such country, the Party to this Agreement first having knowledge of such infringement shall promptly notify the other in writing writing. The notice shall set forth the known facts of any alleged or threatened that infringement of any Curis Patent, Genentech Patent or Joint Patent of which they become awarein reasonable detail. (bii) Genentech ANIKA shall have the first primary right, but not the obligation, to bring and control any action or proceedinginstitute, at its own expense and by counsel of its own choiceprosecute, with respect to infringement of any Genentech Patent. (c) The enforcement of any Curis Patent that is subject to the provisions of Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b). (d) Curis shall have the first right, but not the obligation, to bring and control any action or proceeding with respect to infringements such infringement of any Curis Patent other than those subject to Section 10.2(b). (e) The enforcement of any the Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 shall have the rightPatent, at its own expense and by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party or jointly by the Partiesand at its own expense. If Curis ANIKA fails to bring an action or proceeding with respect to within a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: period of one hundred eighty (i) sixty (60180) days following the notice of alleged infringement; or (ii) ten (10) days before the time limitafter a request by MITEK to do so, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech MITEK shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis shall have the right, at its own expense expense. (iii) The Party bringing suit under this Paragraph 8.5 regarding a Joint Patent shall bear all costs and expenses of the suit, with any damages or other monetary awards recovered being split with [***] to MITEK and [***] to ANIKA after costs of the prosecuting Party are reimbursed. (iv) A settlement or consent judgment or other voluntary final disposition of a suit brought by counsel of its own choice, to be represented in any such action. In the event a Party brings an infringement action, related to a joint patent under this Paragraph 8.5 may be entered into without the consent of the other Party Party; provided that such settlement, consent judgment or other disposition does not admit the invalidity or unenforceability of any Joint Patent; and provided further that any rights to continue the infringing activity in such settlement, consent judgment or other disposition shall cooperate fully, including if required be limited to bring such action, the furnishing product or activity that was the subject of a power of attorney. Neither the suit. (v) Each Party shall have the right sole and exclusive right, but no obligation, to settle enforce any patent Patent that it solely owns against infringement action under this Section 10.4 in a manner that diminishes the rights or interests of the other Party without the consent of such other Party. Both the right of Genentech to bring alleged infringement actions under this Section 10.4 and the distribution of any recovery received as a result of an action brought pursuant to this Section 10.4 shall be subject to the rights of applicable Existing Licensors under applicable Existing License Agreements. Except as provided in the preceding sentence or otherwise agreed to thereof by the Parties as part of a cost-sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of the Parties, shall be: (i) shared equally by the Parties in the case of litigation pursuant to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is attributable to lost sales of a Lead Product or Collaboration Product shall be treated as Net Sales of such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent shall be reduced by an amount equal to [**] percent ([**]%) of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; provided, however, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%).

Infringement by Third Parties. (a) Curis Schering and Genentech Millennium shall promptly notify the other in writing of any alleged or threatened infringement of any Curis PatentMillennium Patents or Schering Patents, Genentech Patent or Joint Patent of which they become aware. (b) Genentech . Schering, subject to any prior rights of Third Party licensee or licensors under agreements entered into pursuant to Section 8.7(a), shall have the first right, but not the obligation, to bring and control any action or proceeding, at its own expense and by counsel of its own choice, with respect to infringement the prosecution of any Genentech Patent. infringement described in this Section 9.4. If Schering does not initiate an infringement action within one hundred and twenty (c120) The enforcement days of any Curis Patent that is subject to learning of the provisions of Section 10.2(b) against any Third Party shall be governed by such Section 10.2(b). (d) Curis infringement, Millennium shall have the first right, but not the obligation, to bring such an action, and control any Schering shall not hinder the prosecution of such action or proceeding with respect to infringements of any Curis Patent other than those subject to Section 10.2(b). (e) The enforcement of any Joint Patent against any Third Party shall be governed by Section 10.2(d). (f) The Party not bringing an action under this Section 10.4 shall have the right, at its own expense and by counsel of its own choice, to be represented in any action involving any patent owned solely by such Party or jointly by the Parties. If Curis fails to bring an action or proceeding with respect to a patent that is owned or Controlled by Curis and that is subject to an exclusive license granted under this Agreement to Genentech, Genentech within: (i) sixty (60) days following the notice of alleged infringement; or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Genentech shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Curis shall have the right, at its own expense and by counsel of its own choice, to be represented in any such actionway. In the event a either Party brings an infringement actionaction in accordance with this Section 9.4, the other Party shall cooperate fully, including including, if required to bring such action, the furnishing of a power of attorney. Neither attorney and the granting of any cross licenses under the Millennium Patents or the Schering Patents; PROVIDED, that neither Party shall have the right be required to settle grant any patent infringement action under this Section 10.4 in a manner that diminishes the rights or interests of the other Party such license with respect to its Patents without the its consent, such consent of such other Partyto be promptly considered and not unreasonably withheld. Both the right of Genentech to bring infringement actions under this Section 10.4 and the distribution The costs of any recovery received as a result of an action brought litigation commenced pursuant to this Section 10.4 9.4, including attorneys' fees and expenses, but excluding any allocation for internal resources devoted to the litigation, shall be subject borne solely by the Party assuming the right to bring suit, and reimbursed to the rights of applicable Existing Licensors under applicable Existing License Agreementsother Party to the extent the other Party incurs such expense. Except as provided in the preceding sentence or otherwise agreed to by the Parties as part of a cost-sharing arrangement, any Any recovery realized as a result of such litigationlitigation shall be paid to Schering and, after reimbursement of any litigation expenses of to the Parties, shall be: (i) shared equally by the Parties in the case of litigation pursuant to Section 10.4(c) or 10.4(e); or (ii) retained by Genentech, except that any portion of such recovery that is extent specifically attributable to lost sales sales, shall be deemed to be Net Sales after deducting any expenses incurred by the Party assuming the right to bring suit, including any expenses reimbursed to the other Party, and to the extent recovered by or on behalf of Millennium, shall be paid to Schering. No settlement or consent judgment or other voluntary final disposition of a Lead Product or Collaboration Product suit under this Section 9.4 may be entered into without the joint consent of Millennium and Schering, which shall be treated as Net Sales of promptly considered and not unreasonably withheld. In countries other than the United States, such Lead Product or Collaboration Product for purposes of this Agreement. If, within ninety (90) days following notice from Curis of evidence of an unabated infringing act of a Third Party with respect to a Genentech Patent and that is subject to an exclusive license granted under this Agreement to Curis, Genentech fails to bring an action or proceeding against such Third Party for such infringing act, then Curis’ total royalty obligation to Genentech with respect to any Curis Product covered by a Valid Claim in such infringed Genentech Patent consent shall be reduced by considered PER SE reasonable if the settlement does not impose an amount equal to [**] percent ([**]%) admission of annual Net Sales of such Curis Product in each country in the Territory in which such Third Party’s infringing act results in the marketing and sale of an approved pharmaceutical product that directly competes with the Curis Products in question; providedguilt, howeverfinancial obligation, that no royalty due to Genentech with respect to any Curis Product shall be reduced by more than [**] percent ([**]%)injunction against or other restriction upon Millennium.