Common use of Patent Enforcement Clause in Contracts

Patent Enforcement. (a) If any of the Patents under which BMS is granted distribution rights hereunder is infringed by a Third Party, BMS shall have the right and option, but not the obligation, to bring an action for infringement, at its sole expense, against such Third Party in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement and shall keep Sano informed as to the prosecution of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In the event that BMS shall undertake the enforcement and/or defense of any Patent, any recovery of damages by BMS for any such action shall be applied first in satisfaction of any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining from any such recovery shall be divided equally between BMS and Sano. (c) In the event that BMS elects not to pursue an action for infringement, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and option, but not the obligation, at its cost and expense to initiate infringement litigation and to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreement, the other Party hereto shall, at the request of the Party initiating such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperation.

Patent Enforcement. (a) 8.8.1 If any either Party learns of the Patents under which BMS is granted distribution rights hereunder is infringed an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim by a Third PartyParty with respect to the Product within the Territory, BMS 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 right and optionfirst right, but not the obligationduty, to bring institute patent infringement actions against 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 for infringement, at its sole expense, against with respect to any infringement by such Third Party in the name of Sano and/or in the name of BMS, Party. The costs and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano 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 to institute and prosecute such infringement actions and shall keep Sano informed as to otherwise cooperate in the institution and prosecution of any such actions (including, without limitation, consenting to being named as a nominal party thereto). Any award paid by Third Parties as a result of such an infringement action for such infringement. No settlement, consent judgment (whether by way of settlement or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (botherwise) In the event that BMS shall undertake the enforcement and/or defense of any Patent, any recovery of damages by BMS for any such action shall be applied first to reimburse both Parties for all costs and expenses incurred by the Parties with respect to such action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, Echo and MTIA shall divide the remaining funds between them in satisfaction of any unreimbursed expenses and legal fees of BMS relating proportion to the suit. The balance remaining from any such recovery shall be divided equally between BMS and Sanoeconomic losses suffered by each of them. (c) In the event that BMS elects not to pursue an action for infringement, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and option, but not the obligation, at its cost and expense to initiate infringement litigation and to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreement, the other Party hereto shall, at the request of the Party initiating such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperation.

Patent Enforcement. (a) If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the Patents under which BMS is granted distribution rights hereunder is infringed foregoing, an "infringement") by a Third PartyParty with respect to any Licensed Technology within the Territory, BMS shall have the right and option, but not the obligation, to bring an action for infringement, at its sole expense, against such Third Party in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement the other Party and shall keep Sano informed as to the prosecution provide such other Party with available evidence of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In Inspire shall have the event that BMS first right, but not the duty, to institute patent infringement actions against 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 undertake have the enforcement and/or defense right, but not the duty, to institute such an action with respect to any infringement by such Third Party. The costs and expenses of any Patent, any recovery of damages by BMS for 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 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). Any award paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall be applied first in satisfaction of to reimburse both Parties for all costs and expenses incurred by the Parties with respect to such action on a pro rata basis and, if after such reimbursement any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining funds shall remain from any such recovery award, they shall be divided equally between BMS and Sanoallocated as follows: [CONFIDENTIAL TREATMENT REQUESTED]. (c) In the event that BMS elects not to pursue an action for infringement, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and option, but not the obligation, at its cost and expense to initiate infringement litigation and to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreement, the other Party hereto shall, at the request of the Party initiating such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperation.

Patent Enforcement. (a) If As soon as it shall have knowledge thereof, each Party shall promptly advise the other Party of any infringement of the Patents under which BMS is granted distribution rights hereunder is infringed 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 right and optionfirst right, but not the obligationduty, to bring an action for infringementinstitute 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 such an offending Third Party in does not do so within 90 days after receipt of notice from the name of Sano and/or in the name of BMSother Party, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement and shall keep Sano informed as to the prosecution of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In the event that BMS shall undertake the enforcement and/or defense of any Patent, any recovery of damages by BMS for any such action shall be applied first in satisfaction of any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining from any such recovery shall be divided equally between BMS and Sano. (c) In the event that BMS elects not to pursue an action for infringement, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and optionright, but not the obligationduty, at its cost to institute such an action. The costs and expense 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 initiate infringement litigation 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 and take such actions as shall be appropriate to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreement, allow the other Party hereto shall, at the request to institute and prosecute such infringement actions. Any award paid by Third Parties as a result of the Party initiating such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder an infringement action (whether by way of settlement or otherwise) shall be paid by to the Party requesting cooperationwho instituted and maintained such action, or, if both parties instituted and maintained such action, such award shall be allocated among the Parties in proportion to their respective contributions to the costs and expenses incurred in such action.

Patent Enforcement. (a) If any of the Patents under which BMS is granted distribution rights hereunder is infringed by a Third PartyPilot, BMS together with its Affiliates and sublicensees, shall have the right and optionfirst right, but not the obligation, to bring an action institute patent infringement actions against third parties pertaining to any 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 infringement, at its sole expense, and only for Pilot to institute or maintain the suit. Only if (a) Pilot determines not to institute any infringement proceeding against such Third Party an offending third party and so notifies BMS in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement and shall keep Sano informed as to the prosecution of any action for such infringement. No settlement, consent judgment writing or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In the event that Pilot fails to do so within 180 days following BMS' request to do so shall BMS shall undertake the enforcement and/or defense of any Patent, any recovery of damages by BMS for any such action shall be applied first in satisfaction of any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining from any such recovery shall be divided equally between BMS and Sano. (c) In the event that BMS elects not to pursue an action for infringement, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and optionright, but not the obligation, at its cost to institute such an action. The costs and expense 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 jointly to initiate infringement litigation institute and pursue 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 and take such actions as shall be reasonable and appropriate to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreement, allow the other Party hereto shall, at the request party to institute and pursue such infringement actions. Any award paid by a third party as a result of the Party initiating such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder an infringement action (whether by way of settlement or otherwise) shall be paid by to the Party requesting cooperationparty who instituted and pursued such action, or, if both parties instituted and pursued such action, such award shall be first used to reimburse the parties for their respective costs and expenses incurred in such action and then allocated between the parties in proportion to their respective economic losses attributable to the infringement, such economic losses being (a) in the case of Pilot and its Affiliates and sublicensees, lost profits reasonably attributable to the lost sales, and (b) in the case of BMS, lost royalty income.

Patent Enforcement. (a) If As soon as it shall have knowledge thereof, Alteon shall promptly advise Genentech of any infringement of the Licensed Patents under which BMS is granted distribution rights hereunder is infringed in the Territory by a Third Party, BMS . Alteon shall have the right and optionfirst right, but not the obligationduty, to bring institute patent infringement actions against Third Parties based on any Licensed Patent under this Agreement. If Alteon does not institute an action for infringement, at its sole expense, infringement proceeding against such an offending Third Party in within ninety (90) days after receipt of notice from Genentech, Genentech shall have the name of Sano and/or in right, but not the name of BMSduty, to institute such an action. The costs and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano expenses of any such infringement action (including fees of attorneys and other professionals) shall keep Sano informed as be borne by each Party to the prosecution extent of any action for their participation therein, or, if the Parties elect to cooperate in instituting and maintaining such infringementaction, such costs and expenses shall be borne by the Parties in such proportions as they may agree in writing. No settlement, consent judgment or Each Party shall execute all necessary and proper documents and take such actions as shall be appropriate to allow the other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheldParty to institute and prosecute such infringement actions. (b) In the event that BMS shall undertake the enforcement and/or defense of any Patent, any recovery of damages by BMS for any such action shall be applied first in satisfaction of any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining from any such recovery shall be divided equally between BMS and Sano. (c) In the event that BMS elects not to pursue an action for infringement, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and option, but not the obligation, at its cost and expense to initiate infringement litigation and to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Licensed Patents pursuant to this Agreement, the other Party hereto shall, at the request of the Party initiating such suit, cooperate in all respects andreasonably cooperate, to the extent possible, have its employees testify when requested and make including making available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing rendering cooperation requested hereunder shall be paid by the Party requesting cooperation. (c) Any award paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall be shared by each Party to the extent of their participation therein, or, if the Parties have elected to cooperate in instituting and maintaining such action, in such proportions as the they may agree on in writing.

Patent Enforcement. (a) If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the Patents under which BMS is granted distribution rights hereunder is infringed foregoing, an “infringement”) by a Third PartyParty with respect to any Licensed Technology within the Territory, BMS shall have the right and option, but not the obligation, to bring an action for infringement, at its sole expense, against such Third Party in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement the other Party and shall keep Sano informed as to the prosecution provide such other Party with available evidence of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In Medistem shall have the event that BMS first right, but not the duty, to institute patent infringement actions against 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 undertake have the enforcement and/or defense right, but not the duty, to institute such an action with respect to any infringement by such Third Party. The costs and expenses of any Patent, any recovery of damages by BMS for 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 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). Any award paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall be applied first in satisfaction of to reimburse both Parties for all costs and expenses incurred by the Parties with respect to such action on a pro rata basis and, if after such reimbursement any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining funds shall remain from any such recovery award, they shall be divided equally between BMS and Sano.allocated as follows: (ci) In the event that BMS elects not if Medistem has instituted and maintained such action alone, Medistem shall be entitled to pursue an retain such remaining funds; (ii) if Licensee has instituted and maintained such action for infringementalone, upon written notice Licensee shall be entitled to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and optionretain such remaining funds, but not the obligation, at its cost and expense to initiate infringement litigation and to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreement, the other Party hereto shallshall pay Medistem a royalty thereon, at the request applicable rate for the country in which 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 Parties shall allocate such remaining funds between themselves in the same proportion as they have agreed to bear the expenses of the Party initiating instituting and maintaining such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperationaction.

Patent Enforcement. (a) If As soon as it shall have knowledge thereof, each Party shall promptly advise the other Party of any infringement of the Patents under which BMS is granted distribution rights hereunder is infringed 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 right and optionfirst right, but not the obligationduty, to bring an action for infringementinstitute 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 such an offending Third Party in does not do so within 90 days after receipt of notice from the name of Sano and/or in the name of BMSother Party, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement and shall keep Sano informed as to the prosecution of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In the event that BMS shall undertake the enforcement and/or defense of any Patent, any recovery of damages by BMS for any such action shall be applied first in satisfaction of any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining from any such recovery shall be divided equally between BMS and Sano. (c) In the event that BMS elects not to pursue an action for infringement, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and optionright, but not the obligationduty, at its cost to institute such an action. The costs and expense 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 initiate infringement litigation 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 and take such actions as shall be appropriate to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreement, allow the other Party hereto shall, at the request to institute and prosecute such infringement actions. Any award paid by Third Parties as a result of the Party initiating such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder an infringement action (whether by way of settlement or otherwise) shall be paid by to the Party requesting cooperationwho instituted and maintained such action, or, if both parties instituted and maintained such action, such award shall be allocated among the Parties in proportion to their respective contributions to the costs and expenses incurred in such action.

Patent Enforcement. (a) If As soon as it shall have knowledge thereof, each Party shall promptly advise the other Party of any infringement of the Patents under which BMS is granted distribution rights hereunder is infringed 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 (regardless of the ownership of such Patent), BMS NeoTherapeutics shall have the right and optionfirst right, but not the obligationduty, to bring institute infringement actions against Third Parties. If the Party having the first right to institute an action for infringement, at its sole expense, infringement proceeding against such an offending Third Party in does not do so within 90 days after receipt of notice from the name of Sano and/or in the name of BMSother Party, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement and shall keep Sano informed as to the prosecution of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In the event that BMS shall undertake the enforcement and/or defense of any Patent, any recovery of damages by BMS for any such action shall be applied first in satisfaction of any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining from any such recovery shall be divided equally between BMS and Sano. (c) In the event that BMS elects not to pursue an action for infringement, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and optionright, but not the obligationduty, at its cost to institute such an action. The costs and expense 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 initiate infringement litigation 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 and take such actions as shall be appropriate to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreement, allow the other Party hereto shall, at the request to institute and prosecute such infringement actions. Any award paid by Third Parties as a result of the Party initiating such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder an infringement action (whether by way of settlement or otherwise) shall be paid by to the Party requesting cooperationwho instituted and maintained such action, or, if both Parties instituted and maintained such action, such award shall be allocated among the Parties in proportion to their respective contributions to the costs and expenses incurred in such action.

Patent Enforcement. (a) If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the Patents under which BMS is granted distribution rights hereunder is infringed foregoing, an “infringement”) by a Third PartyParty with respect to any Licensed Technology within the Territory, BMS shall have the right and option, but not the obligation, to bring an action for infringement, at its sole expense, against such Third Party in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement the other Party and shall keep Sano informed as to the prosecution provide such other Party with available evidence of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In Medistem shall have the event that BMS first right, but not the duty, to institute patent infringement actions against 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 undertake have the enforcement and/or defense right, but not the duty, to institute such an action with respect to any infringement by such Third Party. The costs and expenses of any Patent, any recovery of damages by BMS for 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 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). Any award paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall be applied first in satisfaction of to reimburse both Parties for all costs and expenses incurred by the Parties with respect to such action on a pro rata basis and, if after such reimbursement any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining funds shall remain from any such recovery award, they shall be divided equally between BMS and Sano.allocated as follows: (ci) In the event that BMS elects not if Medistem has instituted and maintained such action alone, Medistem shall be entitled to pursue an retain such remaining funds; (ii) if Licensee has instituted and maintained such action for infringementalone, upon written notice Licensee shall be entitled to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and optionretain such remaining funds, but not shall pay Medistem a royalty thereon as if such remaining funds constituted Net Revenues; or (iii) if the obligation, at its cost Parties have cooperated in instituting and expense to initiate infringement litigation and to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreementmaintaining such action, the other Party hereto shall, at Parties shall allocate such remaining funds between themselves in the request same proportion as they have agreed to bear the expenses of the Party initiating instituting and maintaining such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperationaction.

Patent Enforcement. (a) If any either Party learns of the Patents under which BMS is granted distribution rights hereunder is infringed an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (an "infringement") by a Third PartyParty with respect to any Licensed Technology within the Territory, BMS shall have the right and option, but not the obligation, to bring an action for infringement, at its sole expense, against such Third Party in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement the other Party in writing and shall keep Sano informed as to the prosecution promptly provide such other Party with available evidence of any action for such infringement. No settlementIn addition, consent judgment or other voluntary final disposition Inspire shall promptly notify Genentech in writing when Inspire becomes aware of any infringement action involving any Product in any country outside the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheldTerritory. (b) In Genentech shall have the event that BMS first right, but not the duty, to institute patent infringement actions against 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 undertake have the enforcement and/or defense right, but not the duty, to institute such an action with respect to any infringement by such Third Party. The costs and expenses of any Patent, any recovery of damages by BMS for 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 and take such actions as shall be appropriate to allow the other Party to institute and prosecute such infringement actions. Any award paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall be applied first in satisfaction of any unreimbursed to reimburse both Parties for all costs and expenses and legal fees of BMS relating incurred by the Parties with respect to the suit. The balance remaining from any such recovery shall be divided equally between BMS and Sano. (c) In the event that BMS elects not to pursue an action for infringement, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of on a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano shall have the right and option, but not the obligation, at its cost and expense to initiate infringement litigation and to retain any recovered damages. (d) In any infringement suit either Party may institute to enforce any Patents pursuant to this Agreement, the other Party hereto shall, at the request of the Party initiating such suit, cooperate in all respects pro rata basis and, to the extent possibleif after such reimbursement any funds shall remain from such award, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperation[CONFIDENTIAL TREATMENT REQUESTED].

Patent Enforcement. (a) If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the Patents under which BMS is granted distribution rights hereunder is infringed foregoing, an “infringement”) by a Third PartyParty with respect to any Licensed Technology within the Territory, BMS shall have the right and option, but not the obligation, to bring an action for infringement, at its sole expense, against such Third Party in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement the other Party and shall keep Sano informed as to the prosecution provide such other Party with available evidence of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In Medistem shall have the event that BMS first right, but not the duty, to institute patent infringement actions against 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 undertake have the enforcement and/or defense right, but not the duty, to institute such an action with respect to any infringement by such Third Party. The costs and expenses of any Patent, any recovery of damages by BMS for 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 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). Any award paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall be applied first in satisfaction of to reimburse both Parties for all costs and expenses incurred by the Parties with respect to such action on a pro rata basis and, if after such reimbursement any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining funds shall remain from any such recovery award, they shall be divided equally between BMS and Sano.allocated as follows: (ci) In the event that BMS elects not to pursue an if Medistem has instituted and maintained such action for infringementalone, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano Medistem shall have the right and option, but not the obligation, at its cost and expense to initiate infringement litigation and be entitled to retain any recovered damages. such remaining funds; (dii) In any infringement suit either Party may institute if Licensee has instituted and maintained such action alone, Licensee shall be entitled to enforce any Patents pursuant to this Agreementretain such remaining funds; or (iii) if the Parties have cooperated in instituting and maintaining such action, the other Party hereto shall, at Parties shall allocate such remaining funds between themselves in the request same proportion as they have agreed to bear the expenses of the Party initiating instituting and maintaining such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperationaction.

Patent Enforcement. (a) If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the Patents under which BMS is granted distribution rights hereunder is infringed foregoing, an "infringement") by a Third PartyParty with respect to any Licensed Technology within the Territory, BMS shall have the right and option, but not the obligation, to bring an action for infringement, at its sole expense, against such Third Party in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement the other Party and shall keep Sano informed as to the prosecution provide such other Party with available evidence of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In Inspire shall have the event that BMS first right, but not the duty, to institute patent infringement actions against 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 undertake have the enforcement and/or defense right, but not the duty, to institute such an action with respect to any infringement by such Third Party. The costs and expenses of any Patent, any recovery of damages by BMS for 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 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). Any award paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall be applied first in satisfaction of any unreimbursed to reimburse both Parties for all costs and expenses and legal (including fees of BMS relating attorneys and other professionals) incurred by the Parties with respect to the suit. The balance remaining such action on a pro rata basis and, if after such reimbursement any funds shall remain from any such recovery award, they shall be divided equally between BMS and Sano.allocated as follows: (ci) In the event that BMS elects not to pursue an if Inspire has instituted and maintained such action for infringementalone, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano Inspire shall have the right and option, but not the obligation, at its cost and expense to initiate infringement litigation and be entitled to retain any recovered damages. such remaining funds; (dii) In any infringement suit either Party may institute if Kirin has instituted and maintained such action alone, Kirin shall be entitled to enforce any Patents pursuant to this Agreementretain such remaining funds; or (iii) if the Parties have cooperated in instituting and maintaining such action, the other Party hereto shall, at Parties shall allocate such remaining funds between themselves in the request same proportion as they have agreed to bear the expenses of the Party initiating instituting and maintaining such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperationaction.

Patent Enforcement. (a) If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the Patents under which BMS is granted distribution rights hereunder is infringed foregoing, an "infringement") by a Third PartyParty with respect to any Warp Technology within the Territory, BMS shall have the right and option, but not the obligation, to bring an action for infringement, at its sole expense, against such Third Party in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement the other Party and shall keep Sano informed as to the prosecution provide such other Party with available evidence of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In Genesis shall have the event that BMS shall undertake first right, but not the enforcement and/or defense of duty, to institute patent infringement actions against Third Parties based on any Patent, Technology or any recovery 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 based on any Joint Improvement owned by Genesis and SVI. If the Party with the first right does not secure actual cessation of damages 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 infringement by BMS for such Third Party. The costs and expenses of any such action (including fees of attorneys and other professionals) shall be applied first borne by the Party instituting the action, or, if the Parties elect to cooperate in satisfaction of any unreimbursed instituting and maintaining such action, such costs and expenses and legal fees of BMS relating to the suit. The balance remaining from any such recovery shall be divided equally between BMS borne by the Parties in such proportions as they may agree in writing. Each Party shall execute all necessary and Sanoproper documents, take such actions as shall be appropriate to allow the other Party 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). (c) In Any award paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall be applied first to reimburse both Parties for all costs and expenses incurred by the event that BMS elects not Parties with respect to pursue an such action for infringementon a pro rata basis and, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of if after such reimbursement any Patent for which BMS funds shall remain from such award, they shall be allocated as follows: (i) if Genesis has been granted distribution rights hereunderinstituted and maintained such action alone, Sano Genesis shall have the right and option, but not the obligation, at its cost and expense to initiate infringement litigation and be entitled to retain any recovered damages. such remaining funds; (dii) In any infringement suit either Party may institute if SVI has instituted and maintained such action alone, SVI shall be entitled to enforce any Patents pursuant to this Agreementretain such remaining funds; or (iii) if the Parties have cooperated in instituting and maintaining such action, the other Party hereto shall, at Parties shall allocate such remaining funds between themselves in the request same proportion as they have agreed to bear the expenses of the Party initiating instituting and maintaining such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperationaction.

Patent Enforcement. (a) If either Party learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such claim (any of the Patents under which BMS is granted distribution rights hereunder is infringed foregoing, an "infringement") by a Third PartyParty with respect to any Patents, BMS shall have Inventions or Know-How within the right and optionTerritory, but not the obligation, to bring an action for infringement, at its sole expense, against such Third Party in the name of Sano and/or in the name of BMS, and to join Sano as a party plaintiff if required. BMS shall promptly notify Sano of any such infringement the other Party and shall keep Sano informed as to the prosecution provide such other Party with available evidence of any action for such infringement. No settlement, consent judgment or other voluntary final disposition of the suit which adversely affects any Patent may be entered into without the consent of Sano, which consent shall not unreasonably be withheld. (b) In Encode shall have the event that BMS exclusive right, but not the duty, to institute patent infringement actions against Third Parties based on any Existing Encode Intellectual Property or Program Intellectual Property owned solely by Encode within the Territory. Affymetrix shall undertake have the enforcement and/or defense sole right, but not the duty, to institute patent infringement actions against Third Parties based on any 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 Parties shall institute patent infringement actions against Third Parties based on any Patent, any recovery Program Intellectual Property relating to Joint Inventions. The costs and expenses of damages by BMS for 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 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). Any award paid by Third Parties as a result of such an infringement action (whether by way of settlement or otherwise) shall be applied first in satisfaction of to reimburse both Parties for all costs and expenses incurred by the Parties with respect to such action on a pro rata basis and, if after such reimbursement any unreimbursed expenses and legal fees of BMS relating to the suit. The balance remaining funds shall remain from any such recovery award, they shall be divided equally between BMS and Sano.allocated as follows: (ci) In the event that BMS elects not to pursue an if Encode has instituted and maintained such action for infringementalone, upon written notice to Sano by BMS that an unlicensed Third Party is an infringer of a Valid Claim of any Patent for which BMS has been granted distribution rights hereunder, Sano Encode shall have the right and option, but not the obligation, at its cost and expense to initiate infringement litigation and be entitled to retain any recovered damages. such remaining funds; (dii) In any infringement suit either Party may institute if Affymetrix has instituted and maintained such action alone, Affymetrix shall be entitled to enforce any Patents pursuant to this Agreementretain such remaining funds; or (iii) if the Parties have cooperated in instituting and maintaining such action, the other Party hereto shall, at Parties shall allocate such remaining funds between themselves in the request same proportion as they have agreed to bear the expenses of the Party initiating instituting and maintaining such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. All reasonable out-of-pocket costs incurred in connection with render- ing cooperation requested hereunder shall be paid by the Party requesting cooperationaction.