Common use of Infringement by Third Parties Clause in Contracts

Infringement by Third Parties. Each Party shall promptly notify the other Party in writing of any alleged or threatened infringement by a Third Party of any Tularik Patent, Roche Bioscience Patent or Joint Patent of which they become aware and provide the other Party with all evidence in its possession supporting said infringement. The Parties agree to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Product against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any such action. If, within [ * ] following learning of the infringement by a Third Party, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, have the right to take such action in such country as it deems warranted in its own name and/or in the name of the other Party; the Party maintaining such action shall be responsible for [ * ] and shall be entitled to receive [ * ]. If more than one Party wishes to participate in taking action to protect the commercial interests of the Parties in the Product against infringement, then an authorized representative of each Party shall control such action; the costs of maintaining such action shall be [ * ], and the damages recovered from such action for the past infringement shall be [ * ]. Each Party shall render such reasonable assistance as the prosecuting Party may request.

Infringement by Third Parties. Each Party 7.1 LICENSEE shall promptly notify have the other Party in writing obligation of enforcing at its expense any alleged or threatened infringement by a Third Party of any Tularik Patent, Roche Bioscience Patent or Joint Patent of which they become aware and provide the other Party with all evidence in its possession supporting said infringement. The Parties agree to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Product patent exclusively licensed hereunder against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any such action. If, within [ * ] following learning of the infringement by a Third Party, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, have the right to take such action in such country as it deems warranted in its own name and/or in the name of the other Party; the Party maintaining such action shall be responsible for [ * ] third parties and shall be entitled to receive [ * ]retain recovery from such enforcement. If more than one Party wishes LICENSEE shall pay MDA a royalty on any monetary recovery to participate the extent that such monetary recovery by LICENSEE is held to be damages or a reasonable royalty in taking action lieu thereof. In the event that LICENSEE does not file suit against a substantial infringer of such patents within six (6) months of knowledge thereof, then BOARD and MDA shall have the right to protect enforce any patent licensed hereunder on behalf of itself and LICENSEE, with MDA retaining all recoveries from such enforcement. 7.2 In any suit or dispute involving an infringer, the commercial interests parties shall cooperate fully, and upon the request and at the expense of the Parties in party bringing suit, the Product against infringementother party shall make available to the party bringing suit at reasonable times and under appropriate conditions all relevant personnel, then an authorized representative of each Party shall control such action; the costs of maintaining such action shall be [ * ]records, papers, information, samples, specimens, and the damages recovered from such like which are in its possession. 7.3 In the event that an action for the past infringement is brought against LICENSEE, its AFFILIATES or sublicensees by a third party because of manufacture, use or sale of LICENSED PRODUCTS, LICENSEE shall be [ * ]defend, at its own cost, any such third party claim or action. Each Party MDA shall render cooperate fully in such reasonable assistance as the prosecuting Party may requestdefense and furnish to LICENSEE all evidence and assistance.

Infringement by Third Parties. Each Party shall promptly notify the other Party in writing of any alleged or threatened infringement by a Third Party of any Tularik Patent, Roche Bioscience RPI Patent Rights or Joint LILLY Patent Rights of which they become aware and provide the other Party with all evidence in its possession supporting said infringement. The Parties agree to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Ribozyme Product against infringement by Third Parties. The Filing Party having responsibility for Patent Management shall take the lead in any such action. If, within [ * ] following learning of the infringement by a Third Party and after a written request by the other Party, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, have the right but not the obligation to take such action in such country as it deems warranted in its own name and/or in the name of the other Party; the Party maintaining such action shall be responsible for [ * ] the costs of maintaining the action and shall be entitled to receive [ * ]all damages recovered from the action for the past infringement. If more than one Party wishes to participate in taking action to protect the commercial interests of the Parties in the Ribozyme Product against infringement, then an authorized representative of each Party shall control such action; the costs of maintaining such action shall be [ * ]shared equally by the Parties, and the damages recovered from such action for the past infringement shall be [ * ]first used to pay all costs of each Party, compensatory damages for LILLY's lost sales shall be treated as Net Sales and any other damages will be shared equally by the both Parties. Each Party shall render such reasonable assistance as the prosecuting Party may request.

Infringement by Third Parties. Each (i) 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 sale of a Licensed Product in such country, the Party to this Agreement first having knowledge of such infringement shall promptly notify the other Party in writing writing. The notice shall set forth the known facts of that infringement in reasonable detail. (ii) ANIKA shall have the primary right, but not the obligation, to institute, prosecute, and control any alleged action or threatened proceeding with respect to such infringement by a Third Party of any Tularik the Joint Patent, Roche Bioscience Patent or Joint Patent by counsel of which they become aware its own choice, and provide the other Party with all evidence in at its possession supporting said infringementown expense. The Parties agree to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Product against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any such action. If, within [ * ] following learning of the infringement by a Third Party, such Party If ANIKA fails to take commercially reasonable bring an action against the Third Party or proceeding within a period of one hundred eighty (180) days after a request by MITEK to [ * ] = Certain confidential information contained in this documentdo so, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, MITEK shall have the right to take bring and control any such action in such country as it deems warranted in by counsel of its own name and/or in choice, and at its own expense. (iii) The Party bringing suit under this Paragraph 8.5 regarding a Joint Patent shall bear all costs and expenses of the name 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 a Party related to a joint patent under this Paragraph 8.5 may be entered into without the consent of the other Party; provided that such settlement, consent judgment or other disposition does not admit the Party maintaining invalidity or unenforceability of any Joint Patent; and provided further that any rights to continue the infringing activity in such action settlement, consent judgment or other disposition shall be responsible for [ * ] and shall be entitled limited to receive [ * ]. If more than one Party wishes to participate in taking action to protect the commercial interests product or activity that was the subject of the Parties in the Product against infringement, then an authorized representative of each Party shall control such action; the costs of maintaining such action shall be [ * ], and the damages recovered from such action for the past infringement shall be [ * ]. suit. (v) Each Party shall render such reasonable assistance as have the prosecuting Party may requestsole and exclusive right, but no obligation, to enforce any Patent that it solely owns against infringement or alleged infringement thereof by a Third Party.

Infringement by Third Parties. Each Party 7.1 LICENSEE shall promptly notify have the other Party in writing first right, but not the obligation, to enforce, [***] any patent exclusively licensed hereunder against infringement by third parties. After reimbursement of LICENSEE’s [***] legal costs and expenses related to such enforcement, the balance of any alleged or threatened infringement recovery shall be distributed as follows: in any suit initiated by LICENSEE, any recovery in excess of litigation costs shall be [***]. If LICENSEE does not file suit against a Third Party substantial infringer within [***] of having firm evidence of any Tularik Patentsuch infringement, Roche Bioscience Patent then FHCRC may, at its sole discretion [***], enforce any patent licensed hereunder on behalf of itself and LICENSEE, and after reimbursement of reasonable legal costs and expenses related to such enforcement, the balance of any recovery shall be distributed as follows: [***] to FHCRC and [***] to LICENSEE. 7.2 In any suit or Joint Patent dispute involving an infringer of which they become aware and provide the other Party with all evidence in its possession supporting said infringement. The Parties PATENT RIGHTS, the parties agree to cooperate fully with each other. At the request and expense of the party bringing suit, the other party will permit access during regular business hours, to all relevant personnel, records, papers, information, samples, specimens, and the like in taking commercially reasonable legal actions to protect its possession. In any suit, action or other proceeding in connection with the commercial enforcement and/or defense of the licensed PATENT RIGHTS, the non-controlling party shall, at the expense of the controlling party, cooperate fully, including, without limitation, by joining as a party and executing such documents as the controlling party may reasonably request. 7.3 Neither party shall settle any patent infringement claims against a third party in a manner that diminishes the rights or interests of the Parties in other party without the Research Collaboration, Research Compounds, Development Compounds or a Product against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any such action. If, within [ * ] following learning of the infringement by a Third Party, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, have the right to take such action in such country as it deems warranted in its own name and/or in the name prior written consent of the other Party; the Party maintaining such action shall be responsible for [ * ] and shall be entitled to receive [ * ]. If more than one Party wishes to participate in taking action to protect the commercial interests of the Parties in the Product against infringement, then an authorized representative of each Party shall control such action; the costs of maintaining such action shall be [ * ], and the damages recovered from such action for the past infringement shall be [ * ]. Each Party shall render such reasonable assistance as the prosecuting Party may requestparty.

Infringement by Third Parties. Each Party shall promptly notify the other Party in writing promptly upon learning of any actual or alleged or threatened infringement by a Third Party of any Tularik Patent, Roche Bioscience Patent or Joint Patent Trademarks relating to Licensed Product of which they become aware and provide aware. The Party owning such Trademark shall have the first right, but not the obligation, to control the prosecution of any such infringement. If the Party having the first right to control the prosecution of any such infringement does not initiate an infringement action within [*] of learning of the infringement, then the other Party with all evidence in its possession supporting said infringement. The Parties agree shall have the right, but not the obligation, to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Product against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any bring such an action. If, within [ * ] following learning of the infringement by a Third Party, such Neither Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, shall have the right to take such settle any infringement action under this Section 11.9(c) in such country as it deems warranted in its own name and/or in a manner that diminishes the name of the other Party; the Party maintaining such action shall be responsible for [ * ] and shall be entitled to receive [ * ]. If more than one Party wishes to participate in taking action to protect the commercial rights or interests of the Parties Party or imposes any liability on the other Party without the consent of such other Party. The expenses of defense, settlement and judgments in actions governed by this Section 11.9(c) shall be: (i) borne [*] in the Product against infringement, then an authorized representative Royalty Territory; and (ii) [*] in the Co-Promotion Territory. The costs and expenses of each the Party bringing suit under this Section 11.9(c) shall control be reimbursed first out of any damages or other monetary awards recovered in favor of Corgentech and/or BMS (if such recovery is less than the Parties' aggregate costs and expenses incurred in such action; the costs of maintaining , such action recovery shall be [ * allocated between the Parties [*], and the . Any remaining damages recovered from such action for the past infringement shall be [ * allocated: (i) on the same pro rata basis within the Royalty Territory; and (ii) [*] with respect to infringement of Trademarks within the Co-Promotion Territory. Any recovery shall be allocated as provided in this Section, shall [*]. Each Party shall render such reasonable assistance as the prosecuting Party may request.