Common use of Invalidity or Unenforceability Defences or Actions Clause in Contracts

Invalidity or Unenforceability Defences or Actions. 16.2.1 In the event that a Third Party or Sublicensee asserts, as a defence or as a counterclaim in any infringement action under Section 15.1, that any Licensed Patent or Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, at its sole cost and expense through counsel of its choosing, to respond to such defence or defend against such counterclaim (as applicable) and, if Neoprobe is pursuing the applicable infringement action under Section 15.1, Neoprobe shall allow AstraZeneca to control such response or defence (as applicable). The Parties shall each bear fifty percent (50%) of any costs and expenses with respect to such response or defence against such counterclaim (as applicable). If AstraZeneca determines not to respond to such defence or defend against such counterclaim (as applicable), Neoprobe shall, at its sole cost and expense, have the right to respond to such defence or defend against such counterclaim (as applicable). 16.2.2 Similarly, if a Third Party or Sublicensee asserts, in a declaratory judgment action or similar action or claim filed by such Third Party, that any Licensed Patent or Joint Patent is invalid or unenforceable, then the Party first becoming aware of such action or claim shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, at its sole cost and expense, through counsel of its choosing, to defend against such action or claim. The Parties shall each bear fifty percent (50%) of any costs and expenses with respect to such defence. If AstraZeneca determines not to assume such defence, Neoprobe shall, at its sole cost and expense, have the right to defend against such action or claim. Confidential Treatment – Asterisked material has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 16.2.3 Neoprobe shall provide to AstraZeneca all reasonable assistance requested by AstraZeneca in connection with any action, claim or suit under this Section 16.2, including allowing AstraZeneca access to Neoprobe’s files and documents and to Neoprobe’s personnel who may have possession of relevant information. In particular Neoprobe shall promptly make available to AstraZeneca, free of charge, all information in its possession or control that it is aware will assist AstraZeneca in responding to any such action, claim or suit.

Invalidity or Unenforceability Defences or Actions. 16.2.1 20.2.1 In the event that a Third Party or Sublicensee asserts, as a defence or as a counterclaim in any infringement action under Section 15.119.1, that any Licensed Patent, Joint Patent or Joint AstraZeneca Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, at its sole cost and expense through counsel of its choosing, to respond to such defence or defend against such counterclaim (as applicable) and), if Neoprobe is pursuing including the applicable infringement action under Section 15.1, Neoprobe shall allow AstraZeneca right to control settle or otherwise compromise such response or defence (as applicable). The Parties shall each bear fifty percent (50%) of any costs and expenses with respect to such response or defence against such counterclaim (as applicable)claim. If AstraZeneca determines notifies Avanir in writing that it does not wish to respond to such defence or defend against against, or settle, such counterclaim (as applicable), Neoprobe Avanir shall, at its sole cost and expense, have the right to respond to such defence or defend against such counterclaim (as applicable); provided, however, that Avanir shall obtain the written consent of AstraZeneca prior to ceasing to defend, settling or otherwise compromising such defence or counterclaim. 16.2.2 20.2.2 Similarly, if a Third Party or Sublicensee asserts, in a declaratory judgment action or similar action or claim filed by such Third PartyParty or Sublicensee, that any Licensed Patent, Joint Patent or Joint AstraZeneca Patent is invalid or unenforceable, then the Party first becoming aware of such action or claim shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, at its sole cost and expense, through counsel of its choosing, to defend against such action or claim. The Parties shall each bear fifty percent (50%) of any costs and expenses with respect , including the right to settle or otherwise compromise such defenceclaim. If AstraZeneca determines notifies Avanir in writing that it does not wish to assume respond to or defend against or settle such defenceaction or claim, Neoprobe Avanir shall, at its sole cost and expense, have the right to defend against such action or claim. Confidential Treatment – Asterisked material has been omitted and filed separately with ; provided, however, CONFIDENTIAL TREATMENT REQUESTED that Avanir shall obtain the Securities and Exchange Commission pursuant written consent of AstraZeneca prior to a request for confidential treatment. 16.2.3 Neoprobe shall provide ceasing to AstraZeneca all reasonable assistance requested by AstraZeneca in connection with any actiondefend, claim settling or suit under this Section 16.2, including allowing AstraZeneca access to Neoprobe’s files and documents and to Neoprobe’s personnel who may have possession of relevant information. In particular Neoprobe shall promptly make available to AstraZeneca, free of charge, all information in its possession or control that it is aware will assist AstraZeneca in responding to otherwise compromising any such action, claim action or suitclaim.