Common use of Patent Enforcement Clause in Contracts

Patent Enforcement. (a) OXiGENE shall have the right, but not the duty, to institute patent infringement actions against third parties with respect to any alleged infringement of the Licensed Patents. BMS shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE to institute and prosecute infringement actions under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENE. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties as a result of any infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated first to reimbursement of OXiGENE for all expenses incurred by it in connection with such action. Any remaining award or compensation shall be allocated to OXiGENE; provided, however, that to the extent any such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty to be calculated in a manner agreed upon by the parties.

Patent Enforcement. (a) OXiGENE 8.8.1 If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim by a Third Party with respect to the Product within the Territory, such Party shall promptly notify the other Party in writing and shall promptly provide such other Party with available evidence of such Infringement. 8.8.2 Echo shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on any Echo IP or Inventions in the Territory. If Echo (or its designee), as the case may be, does not secure actual cessation of such infringement (except by granting said Third Party a license under the infringed Patents) or institute an infringement proceeding against an offending Third Party within one hundred twenty (120) days of learning of such infringement, MTIA shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEincluding, without limitation, consenting to being named as a nominal party thereto). To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse both Parties for all costs and expenses incurred by it in connection with such action. Any remaining award or compensation shall be allocated to OXiGENE; provided, however, that to the extent any such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits Parties with respect to such action on a pro rata basis and, if after such reimbursement any Licensed Product)funds shall remain from such award, then OXiGENE Echo and MTIA shall pay BMS a royalty thereon divide the remaining funds between them in substantial accordance with Section 3.7, proportion to the exact amount economic losses suffered by each of such royalty to be calculated in a manner agreed upon by the partiesthem.

Patent Enforcement. (a) OXiGENE Each Party shall notify the other promptly after such Party becomes aware of any alleged infringement of any Patent covering a Product in any country. The Party that is developing or marketing a Product that will compete or does, in fact, compete in the applicable Territory with the allegedly infringing product shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties. If the Party with respect the first right to institute patent infringement actions does not institute an infringement proceeding against an offending Third Party within 90 days after becoming aware or receiving notice of any alleged infringement infringement, then the other Party shall have the right, but not the duty, to institute such an action. (b) The Parties shall provide reasonable assistance to each other in connection with the enforcement of the Licensed Patentssuch Patents pursuant to Section 9.1. BMS Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate reasonably requested to allow OXiGENE assist the Party enforcing the Patent. Neither Party shall enter into a settlement with respect to institute and prosecute infringement actions any such action without the prior consent of the other Party (if the other Party either owns the Patent or holds a license under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENE. To the extent BMS agrees to take any action such Patent pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money5.2), OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties as a result of any infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall which will not be allocated first to reimbursement of OXiGENE for all expenses incurred by it in connection with such actionunreasonably withheld. Any remaining award or compensation shall be allocated to OXiGENE; provided, however, that to the extent any such award or compensation (including the fair market value of non-monetary compensation) paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall relate be applied as follows: (i) first, to reimbursement of the Parties, on a pro rata basis, for all reasonable out-of-pocket expenses to other persons or entities incurred by each in connection with such action, and (ii) second, any remaining balance shall be allocated [**]% to the sale Party enforcing the Patent and [**]% to the other Party. (c) The costs and expenses of any compounds or products action instituted pursuant to this Section 9.1 (including reasonable fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. (d) Notwithstanding anything to the contrary in this Section 9.1, if the Party controlling a Patent does not have the right to allow the Party that infringe upon any Licensed Patent (and/or is granted the right to lost revenue or profits with respect pursue infringers to any Licensed Productenforce such Patent(s), then OXiGENE no such right shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty be considered to be calculated in a manner agreed upon by the partieshave been granted hereunder.

Patent Enforcement. (a) OXiGENE CpG and/or Sublicensee(s) shall have the first right, but not the dutyobligation, to institute patent infringement actions against third parties based on any Patent Right licensed under this Agreement. If CpG and/or any Sublicensee does not institute an infringement proceeding against an offending third party, or enter into good faith negotiations regarding a sublicense under such Patent Right with such third party, within one hundred eighty (180) days after receipt of notice from LOEB, (i) with respect to inventions owned solely by LOEB, LOEB shall have the right, but not the obligation, to institute an infringement proceeding, and (ii) with respect to Joint Invention, shall have such rights as are mutually agreed by the other owners of such Joint Invention as appropriate. The costs and expenses of any alleged infringement such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty and/or parties instituting the action. BMS Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party (or, for certain Joint Inventions, other co-owners) to institute and prosecute such infringement actions under this Section 3.10. (b) The costs and such expenses of bringing and maintaining any infringement action under Section 3.10(a) shall will be borne solely by OXiGENEthe instituting party. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated first applied to reimbursement reimburse the costs and expenses (including attorney’s fees) of OXiGENE for all the Party bringing suit, or to reimburse the costs and expenses (including attorney’s fees) incurred by it the Parties if the suit is brought jointly and to reimburse any additional costs and expenses including attorney’s fees incurred by LOEB in connection cooperating with CpG in such actionsuits. Any remaining amount of the award or compensation shall be allocated to OXiGENE; provided, however, that regarded as Sublicense Income and an amount shall be paid to the extent LOEB pursuant to Section 4.1(c). Notwithstanding the foregoing, for suits involving Joint Inventions with co-owners who are not Parties, awards shall be shared as mutually agreed, provided that CpG’s share of any such award recovery shall be treated as set forth above. (b) Notwithstanding the foregoing, neither Party shall be entitled to settle or compensation (including the fair market value of non-monetary compensation) shall relate to the sale otherwise dispose of any compounds or products that infringe upon any Licensed Patent (and/or suit brought pursuant to lost revenue or profits with respect to any Licensed Product)provisions of Section 6.4(a) without the approval of the other Party, then OXiGENE which approval shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty to not be calculated in a manner agreed upon by the partiesunreasonably withheld.

Patent Enforcement. (a) OXiGENE As soon as it shall have knowledge thereof, each Party shall promptly advise the other Party of any infringement of the Patents in the Territory by a Third Party. With respect to any Patent that is licensed to SGI exclusively under this Agreement, SGI shall have the first right, but not the duty, to institute infringement actions against Third Parties. With respect to any Patent that is licensed to SGI partially exclusively or non-exclusively under this Agreement, BMS shall have the first right, but not the duty, to institute infringement actions against Third Parties; provided, however, that SGI shall have the right, at its sole discretion, to participate therein at its own expense. For so long as SGI shall continue to participate materially in any such action, BMS shall consult with SGI and take into account each Party's relative interests in such Patent and such infringement action before entering into any settlement arrangement or other amicable arrangement with respect thereto. If the Party having the first right to institute an infringement proceeding against an offending Third Party does not do so within 90 days after receipt of notice from the other Party, such other Party shall have the right, but not the duty, to institute patent infringement actions against third parties with respect such an action. The costs and expenses of any such action (including reasonable fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to any alleged infringement of cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Licensed PatentsParties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEactions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated first paid to reimbursement of OXiGENE for all expenses incurred by it in connection with the Party who instituted and maintained such action. Any remaining , or, if both parties instituted and maintained such action, such award or compensation shall be allocated among the Parties in proportion to OXiGENE; provided, however, that their respective contributions to the extent any costs and expenses incurred in such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an "infringement") by a Third Party with respect to any Licensed Technology within the Territory, such Party shall promptly notify the other Party and shall provide such other Party with available evidence of such infringement. (b) Inspire shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on any Licensed Technology in the Territory. If Inspire (or its designee) does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement, Santen shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEincluding, without limitation, consenting to being named as a nominal party thereto). To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse both Parties for all costs and expenses incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be allocated to OXiGENE; provided, however, that to the extent any such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty to be calculated in a manner agreed upon by the partiesas follows: [CONFIDENTIAL TREATMENT REQUESTED].

Patent Enforcement. (a) OXiGENE 11.1. If at any time during the TERM of this Agreement either party shall become aware of any infringement or threatened infringement of any of ASU's PATENT RIGHTS, such party shall give immediate notice of it to the other party. If the infringement relates to the TECHNOLOGY, then LICENSEE shall have the right, but not the duty, first right to institute patent infringement actions against third parties with respect to settle any alleged infringement of ASU's PATENT RIGHTS. ASU shall have the Licensed Patents. BMS first right to settle any alleged infringement of ASU's PATENT RIGHTS that does not relate to the TECHNOLOGY.. Each party shall execute all reasonable, necessary and proper documents and take such give reasonable actions (assistance to the other than allowing itself to be named as a party in connection with settling any litigation alleged infringement and shall have the right to join in any infringement or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE to institute and prosecute infringement actions under this Section 3.10enforcement action at its own expense. (b) The costs and expenses of bringing and maintaining any infringement 11.2. If the party having the first right to take action under Section 3.10(a) shall be borne solely by OXiGENE. To the extent BMS agrees 11.1 is not able or willing to take action against an infringer as set forth above, the other party shall have the right at any time following one hundred twenty (120) days of receipt of notice of the alleged infringement, to at its or their own expense take action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums against the infringer. ASU shall permit, if legally necessary, the use of money, OXiGENE its name and shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including execute any documents and do any acts as may be reasonably necessary for the fair market value purpose of any non-monetary compensation) paid by third parties as a result of any infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated first to reimbursement of OXiGENE for all expenses incurred by it in connection with such taking action. Any remaining award or compensation recovery received by the party taking action against an infringer pursuant to this Paragraph shall be allocated retained for the benefit of such party, provided that in the case of LICENSEE taking such action, royalties specified in Article 5 shall be paid to OXiGENE; providedASU on that portion of any recovery remaining after reimbursement of all of LICENSEE'S expenses hereunder and in the case of ASU taking such action, howeverASU shall pay to LICENSEE the amount of any damages for injury to LICENSEE or its SUBLICENSEES resulting from the infringement. 11.3. If LICENSEE, its AFFILIATES or SUB-LICENSEES must pay royalties or license fees in any country to third parties under one or more valid claims of a dominant patent to enable LICENSEE, its AFFILIATES or SUB-LICENSEES to use the inventions of the ASU's PATENT RIGHTS, those payments shall be credited against LICENSEE's royalty obligations to ASU hereunder for sales in that country where a valid claim of a dominant patent exists to the extent any such award of payments of royalties or compensation (including the fair market value of nonlicense fees actually made to third parties by LICENSEE, its AFFILIATES and SUB-monetary compensation) shall relate to the sale LICENSEES. 11.4. After an initial determination by a court or tribunal that a claim or claims of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product)of ASU's PATENT RIGHTS is invalid, then OXiGENE LICENSEE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount place all royalties due by virtue of such royalty ASU PATENT RIGHT in an interest-bearing escrow account until a decision by a court of last resort. If the court of last resort reverses the initial determination, LICENSEE shall cause to be calculated paid to ASU all amounts in escrow plus accrued interest within thirty (30) days after receipt of the determination of the court of last resort. If the court of last resort upholds the initial determination, LICENSEE shall receive all amounts in escrow, plus accrued interest. 11.5. Each party agrees to use its best efforts whenever a manner agreed upon by protective order is to be entered with a court of competent jurisdiction, to have the partiesorder permit at least one counsel from each party access to information provided under the protective order without restriction.

Patent Enforcement. (a) OXiGENE If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (an "infringement") by a Third Party with respect to any Licensed Technology within the Territory, such Party shall promptly notify the other Party in writing and shall promptly provide such other Party with available evidence of such infringement. In addition, Inspire shall promptly notify Genentech in writing when Inspire becomes aware of any infringement action involving any Product in any country outside the Territory. (b) Genentech shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on any Licensed Technology in the Territory. If Genentech does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within one hundred eighty (180) days of learning of such infringement, Inspire shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEactions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse both Parties for all costs and expenses incurred by it in connection with such action. Any remaining award or compensation shall be allocated to OXiGENE; provided, however, that to the extent any such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits Parties with respect to such action on a pro rata basis and, if after such reimbursement any Licensed Product)funds shall remain from such award, then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty to be calculated in a manner agreed upon by the parties[CONFIDENTIAL TREATMENT REQUESTED].

Patent Enforcement. (a) OXiGENE If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an "infringement") by a Third Party with respect to any Warp Technology within the Territory, such Party shall promptly notify the other Party and shall provide such other Party with available evidence of such infringement. (b) Genesis shall have the first right, but not the duty, to institute patent infringement actions against Third Parties based on any Patent, Technology or any Improvement owned solely by Genesis. SVI shall have the first right, but not the duty, to institute patent infringement actions against Third Parties based on any Improvement owned solely by SVI. Both Parties shall have the right, but not the duty, to institute patent infringement actions against third parties Third Parties based on any Joint Improvement owned by Genesis and SVI. If the Party with the first right does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement the other party shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENE. To the extent BMS agrees including, without limitation, consenting to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMSbeing named as a nominal party thereto). (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse both Parties for all costs and expenses incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be allocated as follows: (i) if Genesis has instituted and maintained such action alone, Genesis shall be entitled to OXiGENEretain such remaining funds; provided(ii) if SVI has instituted and maintained such action alone, however, that SVI shall be entitled to retain such remaining funds; or (iii) if the extent any Parties have cooperated in instituting and maintaining such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7action, the exact amount Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE As soon as it shall have knowledge thereof, each Party shall promptly advise the other Party of any infringement of the Patents in the Territory by a Third Party. With respect to any Patent that is licensed to SGI exclusively under this Agreement, SGI shall have the first right, but not the duty, to institute infringement actions against Third Parties. With respect to any Patent that is licensed to SGI partially exclusively or non-exclusively under this Agreement, BMS shall have the first right, but not the duty, to institute infringement actions against Third Parties; provided, however, that SGI shall have the right, at its sole discretion, to participate therein at its own expense. For so long as SGI shall continue to participate materially in any such action, BMS shall consult with SGI and take into account each Party’s relative interests in such Patent and such infringement action before entering into any settlement arrangement or other amicable arrangement with respect thereto. If the Party having the first right to institute an infringement proceeding against an offending Third Party does not do so within 90 days after receipt of notice from the other Party, such other Party shall have the right, but not the duty, to institute patent infringement actions against third parties with respect such an action. The costs and expenses of any such action (including reasonable fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to any alleged infringement of cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Licensed PatentsParties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEactions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated first paid to reimbursement of OXiGENE for all expenses incurred by it in connection with the Party who instituted and maintained such action. Any remaining , or, if both parties instituted and maintained such action, such award or compensation shall be allocated among the Parties in proportion to OXiGENE; provided, however, that their respective contributions to the extent any costs and expenses incurred in such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE As between DURECT and BioPartners, DURECT shall have the first right, but not the duty, to institute infringement actions against Third Parties based on any DURECT Patent Rights or DURECT Technology in the Territory. If DURECT does not institute an infringement proceeding against an offending Third Party based on DURECT’s Patent Rights or DURECT Technology in the Field in the Territory within [* * *] months after receipt of written notice from BioPartners, BioPartners shall have the right, but not the duty, to institute such an action, provided, however, that notwithstanding the foregoing, if DURECT notifies BioPartners during such four-month period that it disputes in good faith whether such Third Party is infringing DURECT Patent Rights or DURECT Technology in the Field in the Territory, then the Parties shall refer such matter to a mutually acceptable independent patent infringement actions counsel. The patent counsel will be asked to render his or her opinion on the matter within [* * *] days after referral. In the event the patent counsel renders an opinion, based on all facts available to him or her, that the Third Party is infringing the DURECT Technology and DURECT Patents in the Field in the Territory, then BioPartners may, at its election, initiate an action against third parties such Third Party. If the patent counsel renders an opinion, based on all facts available to him or her, that the Third Party is not infringing the DURECT Technology and DURECT Patents in the Field in the Territory, then BioPartners may not initiate an action against such Third Party. The Party against whom the opinion is rendered shall bear all costs associated with respect to any alleged infringement the use of the Licensed Patentspatent counsel. BMS The costs and expenses of any infringement action (including fees of attorneys and other professionals) brought against a Third Party under this Section 12.3 shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEactions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) ), shall be allocated first paid to reimbursement of OXiGENE for all expenses incurred by it in connection with such action. Any remaining award or compensation shall be allocated to OXiGENE; provided, however, that to the extent any such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty to be calculated in a manner agreed upon by the parties[* * *].

Patent Enforcement. (a) OXiGENE If any Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an "infringement") by a Third Party with respect to any Technology or any Trademark within the Territory, such Party shall promptly notify the other Parties and shall provide such other Parties with available evidence of such infringement. (b) The Company shall have the first right, but not the duty, to institute patent or trademark infringement actions against Third Parties based on any Technology or Trademark in the Territory. If the Company does not institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement or, in the event that a Third Party files a paragraph IV certification relating to any Patent pursuant to 21 U.S.C. ss.355(j)(2)(A)(vii)(IV) of the Hatch/Waxman Act (or any successor statute), if the Company does not institute an infringement proceeding against such Third Party within 30 days of receipt of notice of such paragraph IV certification, ERS shall have the right, but not the duty, to institute such an action with respect to any infringement by such Third Party; provided that ERS may not enter into any settlement, consent judgment or other voluntary final disposition of such action which adversely effects any Technology or Trademark without the prior written consent of the Company, which will not be unreasonably withheld. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all necessary and proper documents, take such actions as shall be appropriate to allow the other Party(ies) to institute and prosecute such infringement actions and shall otherwise cooperate in the institution and prosecution of such actions (including, without limitation, consenting to being named as a nominal party thereto). Each Party prosecuting any such infringement actions shall keep the other Parties reasonably informed as to the status of such actions. Any award paid by Third Parties as a result of such an Confidential treatment requested by ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Company, ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Biologics Company and ImClone Systems Incorporated. (i) if the Company has instituted and maintained such action alone, the Company shall be entitled to retain such remaining funds; (ii) if ERS and/or BMS has instituted and maintained such action alone, ERS and/or BMS, as the case may be, shall be entitled to retain such remaining funds; or (iii) if the Parties have cooperated in instituting and maintaining such action, the Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such action. (c) ERS shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on the use of ERS Inventions which are used in the development, use, manufacture, distribution, promotion and/or sale of Compounds and/or Products in the Field. If ERS does not institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement or, in the event that a Third Party files a paragraph IV certification relating to any ERS Inventions pursuant to 21 U.S.C. ss.355(j)(2)(A)(vii)(IV) of the Hatch/Waxman Act (or any successor statute), if ERS does not institute an infringement proceeding against such Third Party within 30 days of receipt of notice of such paragraph IV certification, the Company shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party; provided that the Company may not enter into any settlement, consent judgment or other voluntary final disposition of such action which adversely effects any ERS Inventions without the Licensed Patentsprior written consent of ERS, which will not be unreasonably withheld. BMS The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party(ies) to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (bincluding, without limitation, consenting to being named as a nominal party thereto). Each Party prosecuting any such infringement actions shall keep the other Party(ies) The costs and expenses reasonably informed as to the status of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEsuch actions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse the Parties for all costs and expenses incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be allocated as follows: (i) if ERS and/or BMS has instituted and maintained such action alone, ERS and/or BMS, as the case may be, shall be entitled to OXiGENEretain such remaining funds; provided, however, that to (ii) if the extent any Company has instituted and maintained such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7action alone, the exact amount Company shall be entitled to retain such remaining funds; or (iii) if the Parties have cooperated in instituting and maintaining such action, the Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an "infringement") by a Third Party with respect to any Licensed Technology within the Territory, such Party shall promptly notify the other Party and shall provide such other Party with available evidence of such infringement. (b) Inspire shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on any Licensed Technology in the Territory. If Inspire (or its designee) does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement, Kirin shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEincluding, without limitation, consenting to being named as a nominal party thereto). To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse both Parties for all costs and expenses (including fees of attorneys and other professionals) incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be allocated as follows: (i) if Inspire has instituted and maintained such action alone, Inspire shall be entitled to OXiGENEretain such remaining funds; provided(ii) if Kirin has instituted and maintained such action alone, however, that Kirin shall be entitled to retain such remaining funds; or (iii) if the extent any Parties have cooperated in instituting and maintaining such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7action, the exact amount Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE As between DURECT and PTI, DURECT shall have the first right, but not the duty, to institute infringement actions against Third Parties based on any DURECT Patent Rights or DURECT Technology in the Territory. If DURECT does not institute an infringement proceeding against an offending Third Party based on DURECT’s Patent Rights or DURECT Technology relating to the manufacture, use or sale of any products incorporating any Opioid Drug intended for the oral route comprising a Controlled Release Carrier in the Field in the Territory within [* * *] months after receipt of written notice from PTI, PTI shall have the right, but not the duty, to institute such an action, provided, however, that notwithstanding the foregoing, if DURECT notifies PTI during such [* * *] month period that it disputes in good faith whether such Third Party is infringing DURECT Patent Rights or DURECT Technology by the manufacture, use, sale or importation of products incorporating any Opioid Drug intended for the oral route comprising a Controlled Release Carrier in the Field in the Territory, then the Parties shall refer such matter to a mutually acceptable independent patent infringement actions counsel. The patent counsel will be asked to render his or her opinion on the matter within [* * *]days after referral. In the event the patent counsel renders an opinion, based on all facts available to him or her, that the Third Party is so infringing the DURECT Technology and DURECT Patents in the Field in the Territory, then PTI may, at its election, initiate an action against third parties with respect such Third Party. If the patent counsel renders an opinion, based on all facts available to any alleged infringement him or her, that the Third Party is not so infringing the DURECT Technology and DURECT Patents in the Field in the Territory, then PTI may not initiate an action against such Third Party. The Party against whom the opinion is rendered shall bear all costs of the Licensed Patentspatent counsel in rendering such opinion. BMS The costs and expenses of any infringement action (including fees of attorneys and other professionals) brought against a Third Party under this Section 12.3 shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEactions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) ), shall be allocated used first to reimbursement of OXiGENE reimburse the Party(ies) initiating and maintaining such action for all the costs and expenses (including attorneys’ and professional fees) incurred by it in connection with such action. Any remaining award or compensation , and the remainder of the recovery shall be allocated to OXiGENE; provided, however, that (to the extent the same represents damages from manufacture, use, sales or importation of products incorporating any such award Opioid Drug intended for the oral route comprising a Controlled Release Carrier within the Field) treated as Net Sales (i.e., paid to or compensation (including retained by PTI, as applicable, less the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a applicable royalty thereon as calculated in substantial accordance with Section 3.7, the exact amount of such royalty 9.5 to be calculated in retained by or paid to DURECT, as applicable) and any remainder (i.e., that remaining portion, if any, that does not represent damages from manufacture, use, sales or importation of products incorporating any Opioid Drug within the Field intended for the oral route comprising a manner agreed upon by the partiesControlled Release Carrier) shall be paid to DURECT.

Patent Enforcement. (a) OXiGENE If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an “infringement”) by a Third Party with respect to any Licensed Technology within the Territory, such Party shall promptly notify the other Party and shall provide such other Party with available evidence of such infringement. (b) Medistem shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on any Licensed Technology in the Territory. If Medistem (or its designee) does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement, Licensee shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEincluding, without limitation, consenting to being named as a nominal party thereto). To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse both Parties for all costs and expenses incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be allocated as follows: (i) if Medistem has instituted and maintained such action alone, Medistem shall be entitled to OXiGENEretain such remaining funds; provided(ii) if Licensee has instituted and maintained such action alone, howeverLicensee shall be entitled to retain such remaining funds, that to the extent any such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE but shall pay BMS Medistem a royalty thereon as if such remaining funds constituted Net Revenues; or (iii) if the Parties have cooperated in substantial accordance with Section 3.7instituting and maintaining such action, the exact amount Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE If any Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an "infringement") by a Third Party with respect to any Technology or any Trademark within the Territory, such Party shall promptly notify the other Parties and shall provide such other Parties with available evidence of such infringement. (b) The Company shall have the first right, but not the duty, to institute patent or trademark infringement actions against Third Parties based on any Technology or Trademark in the Territory. If the Company does not institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement or, in the event that a Third Party files a paragraph IV certification relating to any Patent pursuant to 21 U.S.C. ss.355(j)(2)(A)(vii)(IV) of the Hatch/Waxman Act (or any successor statute), if the Company does not institute an infringement proceeding against such Third Party within 30 days of receipt of notice of such paragraph IV certification, ERS shall have the right, but not the duty, to institute such an action with respect to any infringement by such Third Party; provided that ERS may not enter into any settlement, consent judgment or other voluntary final disposition of such action which adversely effects any Technology or Trademark without the prior written consent of the Company, which will not be unreasonably withheld. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all necessary and proper documents, take such actions as shall be appropriate to allow the other Party(ies) to institute and prosecute such infringement actions and shall otherwise cooperate in the institution and prosecution of such actions (including, without limitation, consenting to being named as a nominal party thereto). Each Party prosecuting any such infringement actions shall keep the other Parties reasonably informed as to the status of such actions. Any award paid by Third Parties as a result of such an Confidential treatment requested by Bristol-Myers Squibb Company, Bristol-Myers Squibb Biologics ▇▇▇▇▇▇▇ ▇▇▇ ▇mClone Systems Incorp▇▇▇▇▇▇. (i) if the Company has instituted and maintained such action alone, the Company shall be entitled to retain such remaining funds; (ii) if ERS and/or BMS has instituted and maintained such action alone, ERS and/or BMS, as the case may be, shall be entitled to retain such remaining funds; or (iii) if the Parties have cooperated in instituting and maintaining such action, the Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such action. (c) ERS shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on the use of ERS Inventions which are used in the development, use, manufacture, distribution, promotion and/or sale of Compounds and/or Products in the Field. If ERS does not institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement or, in the event that a Third Party files a paragraph IV certification relating to any ERS Inventions pursuant to 21 U.S.C. ss.355(j)(2)(A)(vii)(IV) of the Hatch/Waxman Act (or any successor statute), if ERS does not institute an infringement proceeding against such Third Party within 30 days of receipt of notice of such paragraph IV certification, the Company shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party; provided that the Company may not enter into any settlement, consent judgment or other voluntary final disposition of such action which adversely effects any ERS Inventions without the Licensed Patentsprior written consent of ERS, which will not be unreasonably withheld. BMS The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party(ies) to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (bincluding, without limitation, consenting to being named as a nominal party thereto). Each Party prosecuting any such infringement actions shall keep the other Party(ies) The costs and expenses reasonably informed as to the status of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEsuch actions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse the Parties for all costs and expenses incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be allocated as follows: (i) if ERS and/or BMS has instituted and maintained such action alone, ERS and/or BMS, as the case may be, shall be entitled to OXiGENEretain such remaining funds; provided, however, that to (ii) if the extent any Company has instituted and maintained such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7action alone, the exact amount Company shall be entitled to retain such remaining funds; or (iii) if the Parties have cooperated in instituting and maintaining such action, the Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE As soon as it shall have knowledge thereof, Alteon shall promptly advise Genentech of any infringement of the Licensed Patents in the Territory by a Third Party. Alteon shall have the first right, but not the duty, to institute patent infringement actions against third parties with respect Third Parties based on any Licensed Patent under this Agreement. If Alteon does not institute an infringement proceeding against an offending Third Party within ninety (90) days after receipt of notice from Genentech, Genentech shall have the right, but not the duty, to institute such an action. The costs and expenses of any alleged infringement such action (including fees of attorneys and other professionals) shall be borne by each Party to the Licensed Patentsextent of their participation therein, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10actions. (b) The costs and expenses of bringing and maintaining In any infringement action under Section 3.10(a) suit either Party may institute to enforce any Licensed Patents pursuant to this Agreement, the other Party shall, at the request of the Party initiating such suit, reasonably cooperate, including making available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with rendering cooperation requested hereunder shall be borne solely paid by OXiGENE. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMSParty requesting cooperation. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated first to reimbursement of OXiGENE for all expenses incurred shared by it in connection with such action. Any remaining award or compensation shall be allocated to OXiGENE; provided, however, that each Party to the extent any of their participation therein, or, if the Parties have elected to cooperate in instituting and maintaining such award or compensation (including action, in such proportions as the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon they may agree on in substantial accordance with Section 3.7, the exact amount of such royalty to be calculated in a manner agreed upon by the partieswriting.

Patent Enforcement. (a) OXiGENE If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an “infringement”) by a Third Party with respect to any Licensed Technology within the Territory, such Party shall promptly notify the other Party and shall provide such other Party with available evidence of such infringement. (b) Medistem shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on any Licensed Technology in the Territory. If Medistem (or its designee) does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement, Licensee shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEincluding, without limitation, consenting to being named as a nominal party thereto). To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse both Parties for all costs and expenses incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be allocated as follows: (i) if Medistem has instituted and maintained such action alone, Medistem shall be entitled to OXiGENEretain such remaining funds; provided(ii) if Licensee has instituted and maintained such action alone, howeverLicensee shall be entitled to retain such remaining funds, that to the extent any such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE but shall pay BMS Medistem a royalty thereon thereon, at the applicable rate for the country in substantial accordance with Section 3.7which such action takes place, as if such remaining funds constituted Gross Revenues; or (iii) if the Parties have cooperated in instituting and maintaining such action, the exact amount Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an "infringement") by a Third Party with respect to any Patents, Inventions or Know-How within the Territory, such Party shall promptly notify the other Party and shall provide such other Party with available evidence of such infringement. (b) Encode shall have the exclusive right, but not the duty, to institute patent infringement actions against third parties with respect Third Parties based on any Existing Encode Intellectual Property or Program Intellectual Property owned solely by Encode within the Territory. Affymetrix shall have the sole right, but not the duty, to institute patent infringement actions against Third Parties based on any alleged infringement Existing Affymetrix Intellectual Property or Program Intellectual Property owned solely by Affymetrix in the Territory. The JSC shall have the right, but not the duty, to decide whether either or both of the Licensed PatentsParties shall institute patent infringement actions against Third Parties based on any Program Intellectual Property relating to Joint Inventions. BMS The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEincluding, without limitation, consenting to being named as a nominal party thereto). To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse both Parties for all costs and expenses incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be allocated as follows: (i) if Encode has instituted and maintained such action alone, Encode shall be entitled to OXiGENEretain such remaining funds; provided(ii) if Affymetrix has instituted and maintained such action alone, however, that Affymetrix shall be entitled to retain such remaining funds; or (iii) if the extent any Parties have cooperated in instituting and maintaining such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7action, the exact amount Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an “infringement”) by a Third Party with respect to any Licensed Technology within the Territory, such Party shall promptly notify the other Party and shall provide such other Party with available evidence of such infringement. (b) Medistem shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on any Licensed Technology in the Territory. If Medistem (or its designee) does not secure actual cessation of such infringement or institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement, Licensee shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEincluding, without limitation, consenting to being named as a nominal party thereto). To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse both Parties for all costs and expenses incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be allocated as follows: (i) if Medistem has instituted and maintained such action alone, Medistem shall be entitled to OXiGENEretain such remaining funds; provided(ii) if Licensee has instituted and maintained such action alone, however, that Licensee shall be entitled to retain such remaining funds; or (iii) if the extent any Parties have cooperated in instituting and maintaining such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7action, the exact amount Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE If any Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the foregoing, an "infringement") by a Third Party with respect to any Technology or any Trademark within the Territory, such Party shall promptly notify the other Parties and shall provide such other Parties with available evidence of such infringement. (b) The Company shall have the first right, but not the duty, to institute patent or trademark infringement actions against Third Parties based on any Technology or Trademark in the Territory. If the Company does not institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement or, in the event that a Third Party files a paragraph IV certification relating to any Patent pursuant to 21 U.S.C. ss.355(j)(2)(A)(vii)(IV) of the Hatch/Waxman Act (or any successor statute), if the Company does not institute an infringement proceeding against such Third Party within 30 days of receipt of notice of such paragraph IV certification, ERS shall have the right, but not the duty, to institute such an action with respect to any infringement by such Third Party; provided that ERS may not enter into any settlement, consent judgment or other voluntary final disposition of such action which adversely effects any Technology or Trademark without the prior written consent of the Company, which will not be unreasonably withheld. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all necessary and proper documents, take such actions as shall be appropriate to allow the other Party(ies) to institute and prosecute such infringement actions and shall otherwise cooperate in the institution and prosecution of such actions (including, without limitation, consenting to being named as a nominal party thereto). Each Party prosecuting any such infringement actions shall keep the other Parties reasonably informed as to the status of such actions. Any award paid by Third Parties as a result of such an Confidential treatment requested by ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Company, ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Biologics Company and ImClone Systems Incorporated. (i) if the Company has instituted and maintained such action alone, the Company shall be entitled to retain such remaining funds; (ii) if ERS and/or BMS has instituted and maintained such action alone, ERS and/or BMS, as the case may be, shall be entitled to retain such remaining funds; or (iii) if the Parties have cooperated in instituting and maintaining such action, the Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such action. (c) ERS shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on the use of ERS Inventions which are used in the development, use, manufacture, distribution, promotion and/or sale of Compounds and/or Products in the Field. If ERS does not institute an infringement proceeding against an offending Third Party within 180 days of learning of such infringement or, in the event that a Third Party files a paragraph IV certification relating to any ERS Inventions pursuant to 21 U.S.C. ss.355(j)(2)(A)(vii)(IV) of the Hatch/Waxman Act (or any successor statute), if ERS does not institute an infringement proceeding against such Third Party within 30 days of receipt of notice of such paragraph IV certification, the Company shall have the right, but not the duty, to institute such an action with respect to any alleged infringement by such Third Party; provided that the Company may not enter into any settlement, consent judgment or other voluntary final disposition of such action which adversely effects any ERS Inventions without the Licensed Patentsprior written consent of ERS, which will not be unreasonably withheld. BMS The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all reasonable, necessary and proper documents and documents, take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party(ies) to institute and prosecute such infringement actions under this Section 3.10. and shall otherwise cooperate in the institution and prosecution of such actions (bincluding, without limitation, consenting to being named as a nominal party thereto). Each Party prosecuting any such infringement actions shall keep the other Party(ies) The costs and expenses reasonably informed as to the status of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEsuch actions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement of OXiGENE reimburse the Parties for all costs and expenses incurred by it by (i) if ERS and/or BMS has instituted and maintained such action alone, ERS and/or BMS, as the case may be, shall be entitled to retain such remaining funds; (ii) if the Company has instituted and maintained such action alone, the Company shall be entitled to retain such remaining funds; or (iii) if the Parties have cooperated in connection with instituting and maintaining such action. Any remaining award or compensation shall be allocated to OXiGENE; provided, however, that to the extent any such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of instituting and maintaining such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. 7.3.1 If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (aan "Infringement") OXiGENE by a Third Party with respect to Licensed Technology within the Territory, such Party shall promptly notify the other Party and shall provide such other Party with available evidence of such Infringement. 7.3.2 Merck shall have the first right, but not the duty, to institute patent infringement actions against third parties Third Parties based on any Licensed Technology in the Territory. If Merck does not secure actual cessation of such Infringement or institute an infringement proceeding against an offending Third Party within one hundred eighty (180) days of learning of such Infringement, deCODE shall have the right, but not the duty, to institute such an action with respect to any alleged infringement Infringement by such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed PatentsParty instituting the action, or, if the Parties elect to cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEactions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated applied first to reimbursement reimburse both Parties for one hundred ten percent (110%) of OXiGENE for all costs and expenses incurred by it in connection the Parties with respect to such action. Any remaining award or compensation action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, Merck shall be allocated entitled to OXiGENEretain same; provided, however, that such remaining funds shall be deemed to constitute Net Sales for purposes of this Agreement, and Merck shall be obligated to pay the extent any such award or compensation (including the fair market value of non-monetary compensation) royalty due and owing under this Agreement with respect thereto. 7.3.3 deCODE shall relate to the sale inform Merck of any compounds certification regarding any Patents and Collaboration Patents it has received pursuant to either 21 U.S.C. Sections 355(b)(2)(A)(iv) or products that infringe upon (j)(2)(A)(vii)(IV) or its successor provisions or any Licensed Patent similar provisions in a country in the Territory other than the United States and shall provide Merck with a copy of such certification within five (and/or to lost revenue or profits 5) days of receipt. deCODE's and Merck's rights with respect to the initiation and prosecution of any Licensed Product), then OXiGENE shall pay BMS legal action as a royalty thereon in substantial accordance with Section 3.7, the exact amount result of such royalty certification or any recovery obtained as a result of such legal action shall be as defined in Sections 7.3.2 hereof; provided, however, deCODE shall exercise its first right to be calculated in a manner agreed upon by initiate and prosecute any action and shall inform Merck of such decision within ten (10) days of receipt of the partiescertification, after which time Merck shall have the right to initiate and prosecute such action.

Patent Enforcement. (a) OXiGENE Pilot, together with its Affiliates and sublicensees, shall have the first right, but not the dutyobligation, to institute patent infringement actions against third parties with respect pertaining to any alleged Patent and BMS as patent owner agrees to be added as a nominally named party to any such suit to the extent legally necessary for and only for Pilot to institute or maintain the suit. Only if (a) Pilot determines not to institute any infringement proceeding against such an offending third party and so notifies BMS in writing or (b) Pilot fails to do so within 180 days following BMS' request to do so shall BMS have the right, but not the obligation, to institute such an action. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be borne by the Licensed Patentsparty instituting the action, or, if the parties elect jointly to institute and pursue such action, such costs and expenses shall be borne by the parties in such proportions as they may agree in writing. BMS Each party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be reasonable and appropriate to allow OXiGENE the other party to institute and prosecute pursue such infringement actions under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEactions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by a third parties party as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated paid to the party who instituted and pursued such action, or, if both parties instituted and pursued such action, such award shall be first used to reimbursement of OXiGENE reimburse the parties for all their respective costs and expenses incurred by it in connection with such action. Any remaining award or compensation shall be action and then allocated between the parties in proportion to OXiGENE; provided, however, that their respective economic losses attributable to the extent any infringement, such award or compensation economic losses being (including a) in the fair market value case of non-monetary compensation) shall relate Pilot and its Affiliates and sublicensees, lost profits reasonably attributable to the sale lost sales, and (b) in the case of any compounds or products that infringe upon any Licensed Patent (and/or to BMS, lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty to be calculated in a manner agreed upon by the partiesincome.

Patent Enforcement. As soon as it shall have knowledge thereof, each Party shall promptly advise the other Party of any infringement of the Patents in the Territory by a Third Party. With respect to any Patent that is licensed to NeoTherapeutics under this Agreement or any Patent claiming or covering an Improvement (a) OXiGENE regardless of the ownership of such Patent), NeoTherapeutics shall have the first right, but not the duty, to institute infringement actions against Third Parties. If the Party having the first right to institute an infringement proceeding against an offending Third Party does not do so within 90 days after receipt of notice from the other Party, such other Party shall have the right, but not the duty, to institute patent infringement actions against third parties with respect such an action. The costs and expenses of any such action (including reasonable fees of attorneys and other professionals) shall be borne by the Party instituting the action, or, if the Parties elect to any alleged infringement of cooperate in instituting and maintaining such action, such costs and expenses shall be borne by the Licensed PatentsParties in such proportions as they may agree in writing. BMS Each Party shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE the other Party to institute and prosecute such infringement actions under this Section 3.10. (b) The costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENEactions. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties Third Parties as a result of any such an infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated first paid to reimbursement of OXiGENE for all expenses incurred by it in connection with the Party who instituted and maintained such action. Any remaining , or, if both Parties instituted and maintained such action, such award or compensation shall be allocated among the Parties in proportion to OXiGENE; provided, however, that their respective contributions to the extent any costs and expenses incurred in such award or compensation (including the fair market value of non-monetary compensation) shall relate to the sale of any compounds or products that infringe upon any Licensed Patent (and/or to lost revenue or profits with respect to any Licensed Product), then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7, the exact amount of such royalty to be calculated in a manner agreed upon by the partiesaction.

Patent Enforcement. (a) OXiGENE The Parties shall promptly notify the other in writing of any alleged or threatened infringement by a third party of any Subject IP of which they become aware. GENAERA shall have the right, but not the duty, first right to institute patent infringement actions and prosecute, at its sole expense, actions, lawsuits and proceedings against all third parties that infringe, or appear to infringe, the Subject IP with respect to any alleged infringement the Product in the Field. The Parties shall reasonably cooperate with each other in all such suits and actions. After reimbursement of the Licensed Patents. BMS shall execute all reasonable, necessary and proper documents and take such reasonable actions (other than allowing itself to be named as a party in any litigation or alternative dispute resolution proceeding, and provided that the taking of such actions does not require BMS to expend more than incidental sums of money and does not unreasonably interfere with the conduct of BMS' business in the ordinary course) as shall be appropriate to allow OXiGENE to institute and prosecute infringement actions under this Section 3.10. (b) The Parties’ costs and expenses of bringing and maintaining any infringement action under Section 3.10(a) shall be borne solely by OXiGENE. To the extent BMS agrees to take any action pursuant to Section 3.10(a) that requires BMS to expend more than incidental sums of money, OXiGENE shall reimburse BMS therefor, promptly after receiving an invoice(s) from BMS. (c) Any award or compensation (including the fair market value of any non-monetary compensation) paid by third parties as a result of any infringement action brought by OXiGENE under Section 3.10(a) (whether by way of settlement or otherwise) shall be allocated first to reimbursement of OXiGENE for all expenses incurred by it in connection with such suits and actions, the Parties shall evenly share in any and all items that may be received, collected or recovered in any such suit or action, whether by judgment, settlement or otherwise. Any remaining award If GENAERA elects not to bring or compensation maintain any such action, suit or proceeding, within one hundred and eighty days (180) days after becoming aware of a material, likely infringement of the Subject IP with respect to the Product in the Field, MACROCHEM shall have the right to maintain at its sole expense such action, suit or proceeding with the reasonable cooperation of GENAERA (at MACROCHEM’s sole expense for such cooperation, including joining GENAERA as a party plaintiff, if necessary), and after reimbursement of the Parties’ costs and expenses incurred in connection with such suits and actions MACROCHEM shall be allocated entitled to OXiGENE; providedretain any and all items that may be received, however, that to the extent collected or recovered in any such award suit or compensation (including action, whether by judgment, settlement or otherwise, provided that all such amounts shall be treated as sublicense royalties for which a payment shall be owed to GENAERA pursuant to Section 3.1(d)(i). GENAERA shall have sole control over instituting and prosecuting, at its sole expense, all actions, lawsuits and proceedings against third parties that infringe, or appear to infringe, the fair market value Subject IP outside of non-monetary compensation) shall the Field or within the Field that do not relate to the sale of Product, and GENAERA shall retain any compounds and all items that may be received, collected or products that infringe upon recovered in any Licensed Patent (and/or to lost revenue such suit or profits with respect to any Licensed Product)action, then OXiGENE shall pay BMS a royalty thereon in substantial accordance with Section 3.7whether by judgment, the exact amount of such royalty to be calculated in a manner agreed upon by the partiessettlement or otherwise.