Common use of Patent Enforcement Clause in Contracts

Patent Enforcement. 5.2.1 If either party should become aware of any infringement or misappropriation or threatened infringement or misappropriation of the Patent Rights, it shall promptly notify the other party in writing and provide any information available to that party relating to such alleged infringement or misappropriation. 5.2.2 Somaxon shall have the primary right, but not the obligation, to take action in its own name and its expense to secure the cessation of any infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Patent Rights in the Field. ProCom One agrees to assist Somaxon, at Somaxon's expense, in the prosecution of any action or legal proceedings related to infringement or misappropriation of the Patent Rights in the Field. If requested by Somaxon, ProCom One agrees to join any action or legal proceeding to enforce the Patent Rights in the Field against any third party. If Somaxon takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Patent Rights in the Field, after payment of ProCom One's out-of-pocket costs and Royalty due to ProCom One on any award of lost profits, all other damages and costs recovered in any action or proceedings or by way of settlement shall belong to Somaxon. 5.2.3 In the event that Somaxon takes no action within six (6) months of notice of any such infringement or misappropriation, ProCom One shall have the right, but not the obligation, to take action in its own name and its expense to secure the cessation of any such infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Patent Rights in the field. If requested by ProCom One, Somaxon agrees to join any action or legal proceeding to enforce the Patent Rights in the Field against any third party. If ProCom One takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Patent Rights in the Field, after payment of Somaxon's out-of-pocket costs, all other damages and costs recovered in any action or proceedings or by way of settlement shall belong to ProCom One.

Patent Enforcement. 5.2.1 If either party should become aware of any infringement or misappropriation or threatened infringement or misappropriation of the Patent Rights, it shall promptly notify the other party in writing and provide any information available to that party relating to such alleged infringement or misappropriation. 5.2.2 Somaxon shall have the primary right, but not the obligation, to take action in its own name and its expense to secure the cessation of any infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Patent Rights in the Field. ProCom One agrees to assist Somaxon, at Somaxon's ’s expense, in the prosecution of any action or legal proceedings related to infringement or misappropriation of the Patent Rights in the Field. If requested by Somaxon, ProCom One agrees (a) to join any action or legal proceeding to enforce the Patent Rights in the Field against any third partyparty or (b) to bring such action or proceeding in its own name (at Somaxon’s expense and subject to Somaxon’s prosecution and control), if required by applicable law or regulation for such action or proceeding to be brought or continue. If Somaxon takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Patent Rights in the Field, after payment of ProCom One's ’s out-of-pocket costs and Royalty due to ProCom One on any award of lost profits, all other damages and costs recovered in any action or proceedings or by way of settlement shall belong to Somaxon. 5.2.3 In the event that Somaxon takes no action within six (6) months of notice of any such infringement or misappropriation, ProCom One shall have the right, but not the obligation, to take action in its own name and its expense to secure the cessation of any such infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Patent Rights in the fieldField. If requested by ProCom One, Somaxon agrees to join any action or legal proceeding to enforce the Patent Rights in the Field against any third party. If ProCom One takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Patent Rights in the Field, after payment of Somaxon's ’s out-of-pocket costs, all other damages and costs recovered in any action or proceedings or by way of settlement shall belong to ProCom One.

Patent Enforcement. 5.2.1 If either party should become aware of any infringement or misappropriation or threatened infringement or misappropriation of the Patent RightsLicensed IP by a third party, it shall promptly notify the other party in writing and provide any information available to that party relating to such alleged infringement or misappropriation. 5.2.2 Somaxon shall have the primary first right, but not the obligation, to take action in its own Synchroneuron's name and its Somaxon's own expense to secure the cessation of any infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Patent Rights in the FieldLicensed IP. ProCom One Synchroneuron agrees to assist Somaxon, at Somaxon's expense, in the prosecution of any action or legal proceedings related to infringement or misappropriation of the Patent Rights in the FieldLicensed IP. If requested by Somaxon, ProCom One Synchroneuron agrees to join any action or legal proceeding to enforce the Patent Rights in the Field Licensed IP against any third party. If Somaxon takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Patent Rights in the FieldLicensed IP, after payment of ProCom One's Somaxon shall (a) reimburse Synchroneuron for its reasonable out-of-pocket costs associated with its assistance under this Section 5.2.2; and Royalty due (b) within thirty (30) days of receipt of any damages or costs in any such action or proceeding, pay to ProCom One on Synchroneuron five percent (5%) of any award such damages or costs, after deduction of lost profits, all Somaxon's applicable legal fees and related costs directly attributable to the action for infringement of misappropriation. All other damages and costs recovered in any action or proceedings or by way of settlement shall belong to Somaxon. For the avoidance of doubt, (i) to the extent that Somaxon enters into a sublicense agreement with a formerly infringing party to permit such party to continue to sell Licensed Products, any amounts paid thereafter by such party to Somaxon pursuant to the sublicense agreement shall be considered "Sublicense Fees" for purposes of Section 4.12 and (ii) to the extent that Somaxon receives any amounts from a sublicensee representing damages recovered by the sublicense attributable to an action for infringement of misappropriation of the Licensed IP, such amounts shall be considered "Sublicense Fees" for purposes of Section 4.12. 5.2.3 In the event that Somaxon takes no action does not pursue any such infringement or misappropriation within six (6) months of notice of any such infringement or misappropriation, ProCom One Synchroneuron shall have the right, but not the obligation, to take action in its own name and its expense to secure the cessation of any such infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Patent Rights in the fieldLicensed IP. If requested by ProCom OneSynchroneuron, Somaxon agrees to join any action or legal proceeding to enforce the Patent Rights in the Field Licensed IP against any third party. If ProCom One Synchroneuron takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Patent Rights in the FieldLicensed IP, after payment of Somaxon's reasonable out-of-pocket costs, all other damages and costs recovered in any action or proceedings or by way of settlement shall belong to ProCom OneSynchroneuron. If Synchroneuron assumes control of any infringement or misappropriation action hereunder, Synchroneuron may terminate certain Somaxon rights under the License pursuant to Section 9.4.2 hereof.

Patent Enforcement. 5.2.1 If either party should become aware Alibaba will have the sole control and discretion over the enforcement or defense of any infringement Alipay-Related Patent and New FIG Business-Related Patent. In the event that Purchaser or misappropriation its designated Subsidiary reasonably believes that any Alipay-Exclusive Patent or threatened infringement New FIG Business-Exclusive Patent is being infringed by a third Person, Purchaser or misappropriation its designated Subsidiary shall promptly notify Alibaba in writing, or in the event that a declaratory judgment action is brought against Purchaser or any of the its Subsidiaries with respect to an Alipay-Exclusive Patent Rightsor New FIG Business-Exclusive Patent (or a reexamination request or post-grant challenge is filed against an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent), it shall promptly notify the other party Alibaba in writing and provide any information available to that party relating to such alleged infringement or misappropriationwriting. 5.2.2 Somaxon (a) As between the Parties hereto, Alibaba shall have the primary right, initial right (but not the obligation, ) to take action in its own name and its expense to secure control the cessation of any infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Patent Rights in the Field. ProCom One agrees to assist Somaxon, at Somaxon's expense, in the prosecution of any action or legal proceedings related to infringement or misappropriation enforcement of the Patent Rights in the FieldAlipay-Exclusive Patents and New FIG Business-Exclusive Patents, or defend any declaratory judgment action against Purchaser or any of its Subsidiaries (or reexamination request or post-grant challenge) with respect thereto (each, for purposes of this Section 6.2, an “Enforcement Action”). If requested All recoveries obtained by Somaxon, ProCom One agrees Alibaba from an Enforcement Action pursuant to join any action or legal proceeding this Section 6.2(a) will be first used to enforce the Patent Rights in the Field against any third party. If Somaxon takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Patent Rights in the Field, after payment of ProCom One's reimburse Alibaba for its out-of-pocket costs litigation expenses (including but not limited to any attorneys’ fees and court costs) in connection with the Enforcement Action and one hundred percent (100%) of any remaining recoveries will go to Purchaser or its designated Subsidiary. For clarity, any such recoveries shall be included in the consolidated pre-tax income of the Purchaser Group for the applicable fiscal year in which they are accrued, and shall be taken into consideration in the calculation of the Alipay Royalty due and New FIG Royalty pursuant to ProCom One on Article V. At the request of Purchaser or its designated Subsidiary, Alibaba shall keep Purchaser or its designated Subsidiary reasonably informed of the progress of any award of lost profits, all other damages and costs recovered in any action such Enforcement Action brought or proceedings or defended by way of settlement shall belong Alibaba pursuant to Somaxonthis Section 6.2(a). 5.2.3 (b) In the event that Somaxon takes no Alibaba does not initiate an Enforcement Action to enforce the Alipay-Exclusive Patents or New FIG Business-Exclusive Patents against a commercially significant infringement by a third Person in the field of the FIG Holdco Business (“Qualifying Infringement”), within ninety (90) days after a formal, written request by Purchaser or its designated Subsidiary to initiate such Enforcement Action, Alipay or its designated Subsidiary (in the case of an Alipay-Exclusive Patent) or Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) may initiate an Enforcement Action against such infringement. In the event that Alibaba does not promptly undertake, at Alibaba’s expense, the defense of a declaratory judgment action within six against Purchaser or any of its Subsidiaries (6or a reexamination request or post-grant challenge) months with respect to any of notice the Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, Alipay or its designated Subsidiary (in the case of any such infringement an Alipay-Exclusive Patent) or misappropriation, ProCom One Purchaser or its designated Subsidiary (in the case of a New FIG Business-Exclusive Patent) shall have the rightright to do so at its own expense. Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary, as applicable, must consult with Alibaba prior to initiating any Enforcement Action or defending any declaratory judgment action (or reexamination) pursuant to this Section 6.2(b) with respect to an Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, and shall not assert any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent against any third Person if, in the written opinion of outside patent counsel mutually agreed to by the Parties, it is more likely than not that such third Person is not infringing the Alipay-Exclusive Patent or New FIG Business-Exclusive Patent in the field of the FIG Holdco Business. Alibaba shall have the right (but not the obligation) to cooperate, at Alipay’s or its designated Subsidiary’s expense or Purchaser’s or its designated Subsidiary’s expense, in any Enforcement Action initiated or defended by Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary under this Section 6.2(b) (including joining such Enforcement Action as a party plaintiff if necessary or desirable for initiation or continuation of such Enforcement Action) and shall have the right (but not the obligation) to take action participate and be represented in any such Enforcement Action with counsel of its choice at Alibaba’s own name and expense. In any event, Alipay or its expense to secure designated Subsidiary or Purchaser or its designated Subsidiary shall keep Alibaba reasonably informed of the cessation progress of any such infringement Enforcement Action initiated or misappropriation defended by Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary pursuant to institutethis Section 6.2(b) and, prosecute and control legal proceedings to prevent upon Alibaba’s request, shall seek Alibaba’s input on any substantive submissions or restrain such infringement or misappropriation concerning the Patent Rights positions it takes in the fieldlitigation regarding the scope, validity and enforceability of the Alipay-Exclusive Patents and New FIG Business-Exclusive Patents. If requested by ProCom OneAlipay or its designed Subsidiary or Purchaser or its designated Subsidiary, Somaxon agrees as applicable, shall have the right to join enter into an agreement in settlement of any action Enforcement Action brought or legal proceeding defended pursuant to enforce this Section 6.2(b), including the Patent Rights grant of a license within the field of the Alipay Business (in the Field against case of an Alipay-Exclusive Patent) or New FIG Business (in the case of a New FIG Business-Exclusive Patent), but shall not enter into any third party. If ProCom One takes action settlement agreement which would impose any obligation or prosecutes legal proceedings cost on, or otherwise adversely affect, Alibaba or any of its Subsidiaries (for clarity, for purposes or the foregoing, the Parties acknowledge that a non-exclusive license consistent with this Amended IPLA that is granted to the defendant in any such Enforcement Action shall not be regarded as adversely affecting Alibaba or its Subsidiaries), or make any admission relating to the infringement validity or misappropriation enforceability of any Alipay-Exclusive Patents or New FIG Business-Exclusive Patents, without the Patent Rights in the Fieldprior written consent of Alibaba, after payment of Somaxon's such consent not to be unreasonably withheld or delayed. All recoveries obtained by Purchaser or its designated Subsidiary from an Enforcement Action pursuant to this Section 6.2(b) will be first used to reimburse Alibaba for its out-of-pocket litigation-related expenses (including reasonable attorneys’ fees and court costs) in connection with the Enforcement Action and any remaining recoveries will be retained one hundred percent (100%) by Purchaser and/or its Subsidiaries (as designated by Purchaser) and included in the consolidated pre-tax income of the Purchaser Group in the fiscal year in which such recoveries are accrued. (c) Notwithstanding anything set forth in Section 6.2(b), all other damages Alibaba may, in its sole discretion, refuse to cooperate with Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary in connection with, or otherwise participate in, any Enforcement Action (“Right of Refusal”), and costs recovered Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary shall not seek to join Alibaba or any Alibaba Subsidiary as a party in any action Enforcement Action. In the event Alibaba exercises its Right of Refusal with respect to any Alipay-Exclusive Patents or proceedings New FIG Business-Exclusive Patents, then, upon Alipay’s or by way its designated Subsidiary’s or Purchaser’s or its designated Subsidiary’s written request, Alibaba agrees to cooperate with Alipay or designated Subsidiary or Purchaser or its designated Subsidiary to determine if the assignment of settlement shall belong any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent to ProCom OneAlipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, or waiver of Alibaba’s right to enforce the subject Alipay-Exclusive Patent or New FIG Business-Exclusive Patent would be necessary for the purposes of Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary to pursue or defend the applicable Enforcement Action. If Alibaba and Alipay or its designated Subsidiary, or Purchaser or its designated Subsidiary, determine that such an assignment of any Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), as applicable, or waiver of Alibaba’s rights is necessary, then Alibaba will elect, in its sole discretion and subject to the unanimous approval of the Alibaba Independent Committee as to which option to elect: (i) to join in the applicable Enforcement Action, (ii) file appropriate papers with the applicable court confirming that it waives its rights to enforce the applicable Alipay-Exclusive Patent or New FIG Business-Exclusive Patent and agrees that Alipay or its designated Subsidiary or Purchaser or its designated Subsidiary may enforce such Alipay-Exclusive Patent or New FIG Business-Exclusive Patent, as applicable, or (iii) to assign to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, as applicable, at Alibaba’s sole cost and expense and subject to Section 2.7(a), Alibaba’s entire right, title and interest in and to such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s), together with the right to recover any damages for past infringement of such Alipay-Exclusive Patent(s) or New FIG Business-Exclusive Patent(s). For clarity, any Alipay-Exclusive Patent or New FIG Business-Exclusive Patent assigned to Alipay or its designated Subsidiary, or to Purchaser or its designated Subsidiary, pursuant to this Section 6.2(c) will constitute Alipay-Retained IP licensed to Alibaba and its Subsidiaries pursuant to Section 2.7(a).

Patent Enforcement. 5.2.1 If either party should become (a) Each Party shall notify the other promptly after such Party becomes aware of any infringement or misappropriation or threatened infringement or misappropriation of the Patent Rights, it shall promptly notify the other party in writing and provide any information available to that party relating to such alleged infringement or misappropriation. 5.2.2 Somaxon of any Patent licensed to VIACELL under this Agreement in any country in the Territory. Except as provided in Section 11.3, VIACELL shall have the primary first right, but not the obligationduty, to institute patent infringement actions against Third Parties with respect to any such alleged infringement. VIACELL shall take all such actions under this Section 11.1(a) (other than with respect to a Patent included solely in the VIACELL Development Technology) in reasonable consultation with GAMETE and shall keep GAMETE apprised as to the status of any such infringement action in its own name VIACELL institutes. GAMETE shall execute all reasonable, necessary and its expense proper documents and take such actions as shall be appropriate to secure allow VIACELL to institute and prosecute infringement actions under this Section 11.1(a). (b) The costs and expenses of bringing and maintaining any infringement action under Section 11.1(a) shall be borne solely by VIACELL. (c) Any award or compensation (including the cessation fair market value of non-monetary compensation) paid by Third Parties as a result of any infringement or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such infringement or misappropriation concerning the Patent Rights in the Field. ProCom One agrees to assist Somaxon, at Somaxon's expense, in the prosecution of any action or legal proceedings related to infringement or misappropriation of the Patent Rights in the Field. If requested brought by Somaxon, ProCom One agrees to join any action or legal proceeding to enforce the Patent Rights in the Field against any third party. If Somaxon takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Patent Rights in the Field, after payment of ProCom One's out-of-pocket costs and Royalty due to ProCom One on any award of lost profits, all other damages and costs recovered in any action or proceedings or VIACELL under Section 11.1(a) (whether by way of settlement or otherwise) shall belong be allocated first to Somaxon. 5.2.3 In reimbursement of VIACELL and GAMETE for all expenses incurred by it in connection with such action. VIACELL shall then pay GAMETE the event that Somaxon takes no action within six (6) months royalty it would have been entitled to receive had the balance of notice such recovery or damages, to the extent attributable to sales of such infringing products, been attributable to sales of Covered Products by VIACELL hereunder. VIACELL shall be entitled to retain the remainder of any such recovery or damages. (d) Except as provided in Section 11.3, in the event VIACELL elects not to, or fails to, exercise its rights under Section 11.1(a) with respect to any alleged infringement or misappropriationof a Patent licensed to VIACELL under this Agreement (excluding any Patent included solely in the VIACELL Development Technology) within one hundred twenty (120) days after receiving notice thereof, ProCom One GAMETE shall have the right, but not the obligationduty, to institute patent infringement actions against Third Parties with respect to any such alleged infringement. GAMETE shall take action all such actions under this Section 11.1(d) in its own name reasonable consultation with VIACELL and its expense shall keep VIACELL apprised as to secure the cessation status of any such infringement action GAMETE institutes. VIACELL shall execute all reasonable, necessary and proper documents and take such actions as shall be appropriate to allow GAMETE to institute and prosecute infringement actions under this Section 12.1(d). Any award or misappropriation or to institute, prosecute and control legal proceedings to prevent or restrain such compensation (including the fair market value of non-monetary compensation) paid by Third Parties as a result of any infringement or misappropriation concerning the Patent Rights in the field. If requested action brought by ProCom One, Somaxon agrees to join any action or legal proceeding to enforce the Patent Rights in the Field against any third party. If ProCom One takes action or prosecutes legal proceedings relating to the infringement or misappropriation of the Patent Rights in the Field, after payment of Somaxon's out-of-pocket costs, all other damages and costs recovered in any action or proceedings or GAMETE under this Section 11.1(d) (whether by way of settlement or otherwise) shall belong be allocated first to ProCom Onereimbursement of GAMETE and VIACELL for all expenses incurred by them in connection with such action. Any remaining award or compensation shall be retained by GAMETE.