Common use of Patent Enforcement Clause in Contracts

Patent Enforcement. 11.1 University and Licensee agree to inform the other Party promptly in writing of anysuspected infringement of the Patent Rights by a third party. Licensee shall have, for a period of 120 days from the date of any notice of infringement of the Patent Rights, the first right to institute suit against such third party and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees through appeal) incurred by Licensee in the action, second to pay University an amount equal to the Sublicensing Royalty that University would otherwise be entitled to at that time pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as sublicensing revenue, and third any remaining balance shall be paid to Licensee. 11.2 Thereafter, University and Licensee shall each have the right to institute an action for infringement of the Patent Rights against such third party in accordance with the following: a. If both University and Licensee agree to institute suit jointly, the suit shall be brought in both their names, the out-of-pocket costs thereof shall be borne equally, and any recovery or settlement, after the reimbursement of costs and expenses (including reasonable attorneys' fees incurred in the action) shall be shared equally. b. ▇▇▇▇▇▇▇▇▇▇ and Licensee shall agree to the manner in which they shall exercise control over such suit. Each Party, at its option, may be represented by separate counsel of its own selection, the fees for which shall be paid by University. c. ▇▇ the absence of an agreement to institute a suit jointly, University may, but is not obligated to, institute suit, and at its option, join Licensee as a plaintiff. If University decides to institute suit, it shall notify Licensee in writing. d. Licensee's failure to notify University in writing within thirty (30) days after the date of University's notice pursuant to Section 11.2(c) above, that it will join in enforcing the Patent Rights pursuant to the terms hereof, shall be deemed conclusively to be Licensee's assignment to University of all rights, causes of action, and damages resulting from any such alleged infringement. University shall bear the entire cost of such litigation and shall be entitled to retain the entire amount of any recovery or settlement. e. ▇▇ the absence of an agreement to institute a suit jointly, and if University does not notify Licensee of its intent to pursue legal action within ninety (90) days, as provided in Subsections 11.1 — 11.2, Licensee may again have the right to institute suit. In such event, Licensee shall bear the entire cost of such litigation and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees) incurred by Licensee in the action, second to pay University an amount equal to the Earned Royalty (as that term is defined in Exhibit C) that University would otherwise be entitled to pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as Sublicensing Royalties, as defined in Exhibit C herein, and third any remaining balance shall be paid to Licensee. f. If Licensee undertakes to defend the Patent Rights by litigation, Licensee may deduct from its royalty payments to University with respect to the Patent Rights subject to suit an amount not exceeding fifty (50%) of Licensee's expenses and reasonable costs of such action, including reasonable attorney's fees, provided however, that such reduction shall not exceed fifty percent (50%) of the total royalty due to University in any single calendar year. 11.3 In the event that a declaratory judgment action alleging invalidity or non-infringement of any of the Patent Rights shall be brought against Licensee or raised by way of counterclaim or affirmative defense in an infringement suit brought by Licensee under this Section, pursuant to this Agreement and the provisions of Title 35 U.S.C. § 29 or other statutes, Licensee may: a. defend the suit in its own name, at its own expense, and on its own behalf for presumably valid claims in the Patent Rights; b. ▇▇ any such suit, ultimately to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement consistent with this Section; and

Patent Enforcement. 11.1 University and Licensee agree (a) In the event that IDEC or SCHERING becomes aware of actual or threatened infringement of a Patent related to inform the Licensed Product, anywhere in the world, that Party shall promptly notify the other Party promptly in writing of anysuspected infringement of the Patent Rights by a third partywriting. Licensee IDEC shall have, for a period of 120 days from the date of any notice of infringement of the Patent Rights, have the first right but not the obligation to institute suit bring an infringement action or file any other appropriate action or claim directly related to infringement of an IDEC Patent or Joint Patent, wherein such infringement relates to the Licensed Product, against such third party any Third Party and any recovery or settlement shall be applied first to defray use SCHERING's name in connection therewith. The costs of Patent enforcement and related recoveries associated with the unreimbursed costs and expenses (including reasonable attorneys' fees through appeal) United States incurred by Licensee in the action, second to pay University an amount equal to the Sublicensing Royalty that University would otherwise be entitled to at that time pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as sublicensing revenue, and third any remaining balance shall be paid to Licensee. 11.2 Thereafter, University and Licensee shall each have the right to institute an action for infringement of the Patent Rights against such third party in accordance with the following: a. If both University and Licensee agree to institute suit jointly, the suit shall be brought in both their names, the out-of-pocket costs thereof IDEC shall be borne equally, and any recovery or settlement, after the reimbursement of by IDEC. Such Patent enforcement costs and expenses (including reasonable attorneys' fees incurred in the action) Licensed Territory shall be shared equally. b. ▇▇▇▇▇▇▇▇▇▇ and Licensee shall agree to the manner in which they shall exercise control over such suit. Each Party, at its option, may be represented borne by separate counsel of its own selection, the fees for which shall be paid by University. c. ▇▇ the absence of an agreement to institute a suit jointly, University may, but is not obligated to, institute suit, and at its option, join Licensee as a plaintiffIDEC. If University decides to institute suit, it shall notify Licensee in writing. d. Licensee's failure to notify University in writing within thirty (30) days after the date of University's notice pursuant to Section 11.2(c) above, that it will join in enforcing the Patent Rights pursuant to the terms hereof, shall be deemed conclusively to be Licensee's assignment to University of all rights, causes of action, and damages resulting from any such alleged infringement. University shall bear the entire cost of such litigation and shall be entitled to retain the entire amount of any recovery or settlement. e. ▇▇ the absence of an agreement to institute a suit jointly, and if University IDEC does not notify Licensee of its intent to pursue legal commence a particular infringement action in a country within the Licensed Territory within ninety (90) daysdays after it received such written notice, as provided SCHERING, after notifying IDEC in Subsections 11.1 — 11.2writing, Licensee may again have the right to institute suit. In such event, Licensee shall bear the entire cost of such litigation and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees) incurred by Licensee in the action, second to pay University an amount equal to the Earned Royalty (as that term is defined in Exhibit C) that University would otherwise be entitled to pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as Sublicensing Royalties, as defined in Exhibit C herein, and third bring such infringement action or any remaining balance shall be paid to Licensee. f. If Licensee undertakes to defend the Patent Rights by litigation, Licensee may deduct from its royalty payments to University with respect to the Patent Rights subject to suit an amount not exceeding fifty (50%) of Licensee's expenses and reasonable costs of such action, including reasonable attorney's fees, provided however, that such reduction shall not exceed fifty percent (50%) of the total royalty due to University in any single calendar year. 11.3 In the event that a declaratory judgment other appropriate action alleging invalidity or non-infringement of any of the Patent Rights shall be brought against Licensee or raised by way of counterclaim or affirmative defense in an infringement suit brought by Licensee under this Section, pursuant to this Agreement and the provisions of Title 35 U.S.C. § 29 or other statutes, Licensee may: a. defend the suit in its own name, claim at its own expense, and . The Party conducting such action shall consider in good faith the other Party's comments on its own behalf for presumably valid claims the conduct of such action. Recovery from any settlement or judgment from such action in the Patent Rights; b. ▇▇ Licensed Territory shall go first to reimburse the expenses of the Parties and the remainder shall be shared by the Parties in proportion to their respective economic interests. In any event, IDEC and SCHERING shall assist one another and reasonably cooperate in any such suitlitigation at the other's request without expense to the requesting Party. (b) SCHERING shall have the first right but not the obligation to bring an infringement action or file any other appropriate action or claim directly related to infringement of a SCHERING Patent, ultimately wherein such infringement relates to enjoin infringement the Licensed Product, against any Third Party and to collect for its useuse IDEC's name in connection therewith. The costs of Patent enforcement and related recoveries associated with the United States incurred by SCHERING shall be borne by SCHERING. Such Patent enforcement costs in the Licensed Territory shall be borne by SCHERING. Recovery from any settlement or judgment from such action in the Licensed Territory shall go first to reimburse the expenses of the Parties and the remainder shall be shared by the Parties in proportion to their respective economic interests. In any event, damages, profits, IDEC and awards of whatever nature recoverable for SCHERING shall assist one another and reasonably cooperate in any such infringement consistent with this Section; andlitigation at the other's request without expense to the requesting Party.

Patent Enforcement. 11.1 University and Licensee agree to inform the other Party promptly in writing of anysuspected infringement of the Patent Rights by a third party. Licensee shall have, for a period of 120 days from the date of any notice of infringement of the Patent Rights, the first right to institute suit against such third party and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees through appealfees) incurred by Licensee in the action, second to pay University an amount equal to the Sublicensing Royalty that University would otherwise be entitled to at that time pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as sublicensing Sublicensing revenue, and third any remaining balance shall be paid to Licensee. 11.2 Thereafter, University and Licensee shall each have the right to institute an action for infringement forinfringement of the Patent Rights against such third party in accordance with the following: a. If both University and Licensee agree to institute suit jointly, the suit shall be brought in both their names, the out-of-pocket costs thereof shall be borne equally, and any recovery or settlement, after the reimbursement of costs and expenses (including reasonable attorneys' fees incurred in the action) , shall be shared equally. b. ▇▇▇▇▇▇▇▇▇▇ University and Licensee shall agree to the manner in which they shall exercise control over such suit. Each Party, at its option, may be represented by separate counsel of its own selection, the fees for which shall be paid by University. c. ▇▇ In the absence of an agreement to institute a suit jointly, University may, but is not obligated to, institute suit, and at its option, join Licensee as a plaintiff. If University decides to institute suit, it shall notify Licensee in writing. d. Licensee's failure to notify University in writing within thirty (30) days after the date of University's notice pursuant to Section 11.2(c) above, that it will join in enforcing the Patent Rights pursuant to the terms hereof, shall be deemed conclusively to be Licensee's assignment to University of all rights, causes of action, and damages resulting from any such alleged infringement. University shall bear the entire cost of such litigation and shall be entitled to retain the entire amount of any recovery or settlement. e. ▇▇ In the absence of an agreement to institute a suit jointly, and if University does not notify Licensee of its intent to pursue legal action within ninety (90) days, as provided in Subsections 11.1 — 11.2, Licensee may again have the right to institute suit. In such event, Licensee shall bear the entire cost of such litigation and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees) incurred by Licensee in the action, second to pay University an amount equal to the Earned Royalty (as that term is defined in Exhibit C) that University would otherwise be entitled to pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as Sublicensing Royalties, as defined in Exhibit C hereinNet Sales, and third any remaining balance shall be paid to Licensee. f. If Licensee undertakes to defend the Patent Rights by litigation, Licensee may deduct from its royalty payments to University with respect to the Patent Rights subject to suit an amount not exceeding fifty (50%) of Licensee's expenses and reasonable costs of such action, including reasonable attorney's fees, provided however, that such reduction shall not exceed fifty percent (50%) of the total royalty due to University in any single for each calendar year. 11.3 In the event that a declaratory judgment action alleging invalidity or non-infringement of any of the Patent Rights shall be brought against Licensee or raised by way of counterclaim or affirmative defense in an infringement suit brought by Licensee under this Section, pursuant to this Agreement and the provisions of Title 35 U.S.C. § 29 or other statutes, Licensee may: a. defend the suit in its own name, at its own expense, and on its own behalf for presumably valid claims in the Patent Rights;; Exclusive License Apro Biopharmaceutical, Inc. Final April 19, 2006 b. ▇▇ in any such suit, ultimately to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement consistent with this Section; andand c settle any claim. or suit for declaratory judgment involving the Patent Rights, except that Licensee shall have no right to deny the validity of any patent, patent claim, or patent application included in the Patent Rights in any compromise or settlement of any claim or suit for declaratory judgment without the express prior written consent of University; provided however, that University shall have the first right to take such actions described in this Subsection and shall have a continuing right to intervene in such suit. Licensee shall take no action to compel University either to initiate or to join in any such declaratory judgment action.

Patent Enforcement. 11.1 University If a party becomes aware of any Third Party’s manufacture, use, sale, offer for sale or import of a product that is competitive with a Celladon Product and Licensee agree to inform such party believes or suspects that such Third Party’s activities infringe, or may infringe, any AmpliPhi Retained Patent or AmpliPhi Licensed Patent, including the filing by any Third Party of any certification filed under the United States Drug Price Competition and Patent Term Restoration Act of 1984, such party shall promptly notify the other Party promptly party in writing thereof, including the identity of anysuspected infringement such Third Party, which notice shall set forth in reasonable detail the facts and circumstances of the Patent Rights by a third such activities that are known to such party. Licensee To the maximum extent permitted by the UPenn Agreement, Celladon, at its sole expense, shall have, for a period of 120 days from the date of any notice of infringement of the Patent Rights, the first right to institute suit against such third party and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees through appeal) incurred by Licensee in the action, second to pay University an amount equal to the Sublicensing Royalty that University would otherwise be entitled to at that time pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as sublicensing revenue, and third any remaining balance shall be paid to Licensee. 11.2 Thereafter, University and Licensee shall each have the right to institute an determine the appropriate course of action for infringement of the Patent Rights against such third party in accordance with the following: a. If both University and Licensee agree to institute suit jointly, the suit shall be brought in both their names, the out-of-pocket costs thereof shall be borne equally, and any recovery enforce AmpliPhi Licensed Patents or settlement, after the reimbursement of costs and expenses (including reasonable attorneys' fees incurred in the action) shall be shared equally. b. ▇▇▇▇▇otherwise ▇▇▇▇▇ the infringement thereof, to take (or refrain from taking) appropriate action to enforce AmpliPhi Licensed Patents, to defend any declaratory judgments seeking to invalidate or hold the AmpliPhi Licensed Patents unenforceable, to control any litigation or other enforcement action and Licensee shall agree to the manner in which they shall exercise control over such suit. Each Partyenter into, at its option, may be represented by separate counsel of its own selectionor permit, the fees settlement of any such litigation, declaratory judgments or other enforcement action with respect to AmpliPhi Licensed Patents, in each case in Celladon’s own name and, if necessary for which standing purposes, in the name of AmpliPhi and shall be paid by University. c. consider, in good faith, the interests of AmpliPhi in so doing. If Celladon does not, within one hundred twenty (120) days of receipt of notice from AmpliPhi, ▇▇▇▇▇ the absence of an agreement infringement or file suit to institute a suit jointlyenforce the AmpliPhi Licensed Patents, University may, but is not obligated to, institute suit, and at its option, join Licensee as a plaintiff. If University decides to institute suit, it AmpliPhi shall notify Licensee in writing. d. Licensee's failure to notify University in writing within thirty (30) days after the date of University's notice pursuant to Section 11.2(c) above, that it will join in enforcing the Patent Rights pursuant to the terms hereof, shall be deemed conclusively to be Licensee's assignment to University of all rights, causes of action, and damages resulting from any such alleged infringement. University shall bear the entire cost of such litigation and shall be entitled to retain the entire amount of any recovery or settlement. e. ▇▇ the absence of an agreement to institute a suit jointly, and if University does not notify Licensee of its intent to pursue legal action within ninety (90) days, as provided in Subsections 11.1 — 11.2, Licensee may again have the right to institute suittake whatever action it deems appropriate to enforce the AmpliPhi Licensed Patents. In The party controlling any such event, Licensee enforcement action shall bear not settle the entire cost action or otherwise consent to an adverse judgment in such action that diminishes the rights or interests of such litigation and any recovery the non-controlling party without the prior written consent of the other party. All monies recovered upon the final judgment or settlement of any such suit to enforce the AmpliPhi Licensed Patents shall first be applied to reimburse each party, and, if applicable, UPenn, for their respective litigation expenditures, with remaining recoveries being subject to Celladon’s payment obligations under Section 3.1 to the extent required by the UPenn Agreement, after which any remaining recovery shall be applied first to defray shared by the unreimbursed costs and expenses (including reasonable attorneys' fees) incurred by Licensee parties in the action, second to pay University an amount equal relation to the Earned Royalty (as that term is defined in Exhibit C) that University would otherwise be entitled to pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as Sublicensing Royalties, as defined in Exhibit C herein, and third any remaining balance shall be paid to Licenseedamages suffered by each party. f. If Licensee undertakes to defend the Patent Rights by litigation, Licensee may deduct from its royalty payments to University with respect to the Patent Rights subject to suit an amount not exceeding fifty (50%) of Licensee's expenses and reasonable costs of such action, including reasonable attorney's fees, provided however, that such reduction shall not exceed fifty percent (50%) of the total royalty due to University in any single calendar year. 11.3 In the event that a declaratory judgment action alleging invalidity or non-infringement of any of the Patent Rights shall be brought against Licensee or raised by way of counterclaim or affirmative defense in an infringement suit brought by Licensee under this Section, pursuant to this Agreement and the provisions of Title 35 U.S.C. § 29 or other statutes, Licensee may: a. defend the suit in its own name, at its own expense, and on its own behalf for presumably valid claims in the Patent Rights; b. ▇▇ any such suit, ultimately to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement consistent with this Section; and

Patent Enforcement. 11.1 University and Licensee agree to inform (a) Each Party shall notify the other promptly after such Party promptly in writing becomes aware of anysuspected any alleged infringement of any Patent licensed to GPC under this Agreement in any country in the Patent Rights by a third partyTerritory. Licensee Except as provided in Section 13.3, GPC shall have, for a period of 120 days from the date of any notice of infringement of the Patent Rights, have the first right right, but not the duty, to institute suit patent infringement actions against such third party and any recovery or settlement shall be applied first Third Parties with respect to defray the unreimbursed costs and expenses (including reasonable attorneys' fees through appeal) incurred by Licensee in the action, second to pay University an amount equal to the Sublicensing Royalty that University would otherwise be entitled to at that time pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as sublicensing revenue, and third any remaining balance shall be paid to Licensee. 11.2 Thereafter, University and Licensee shall each have the right to institute an action for infringement of the Patent Rights against such third party in accordance with the following: a. If both University and Licensee agree to institute suit jointly, the suit shall be brought in both their names, the out-of-pocket costs thereof shall be borne equally, and any recovery or settlement, after the reimbursement of costs and expenses (including reasonable attorneys' fees incurred in the action) shall be shared equally. b. ▇▇▇▇▇▇▇▇▇▇ and Licensee shall agree to the manner in which they shall exercise control over such suit. Each Party, at its option, may be represented by separate counsel of its own selection, the fees for which shall be paid by University. c. ▇▇ the absence of an agreement to institute a suit jointly, University may, but is not obligated to, institute suit, and at its option, join Licensee as a plaintiff. If University decides to institute suit, it shall notify Licensee in writing. d. Licensee's failure to notify University in writing within thirty (30) days after the date of University's notice pursuant to Section 11.2(c) above, that it will join in enforcing the Patent Rights pursuant to the terms hereof, shall be deemed conclusively to be Licensee's assignment to University of all rights, causes of action, and damages resulting from any such alleged infringement. University GPC shall bear take all such actions under this Section 13.1(a) (other than with respect to a Patent included solely in the entire cost GPC Development Technology) in reasonable consultation with NEOTHERAPEUTICS and shall keep NEOTHERAPEUTICS apprised as to the status of any such infringement action GPC institutes. NEOTHERAPEUTICS shall execute all reasonable, necessary and proper documents and take such actions as shall be appropriate to allow GPC to institute and prosecute infringement actions under this Section 13.1(a). (b) The costs and expenses of bringing and maintaining any infringement action under Section 13.1(a) shall be borne solely by GPC. (c) Any award or compensation (including the fair market value of non-monetary compensation) paid by Third Parties as a result of any infringement action brought by GPC under Section 13.1(a) (whether by way of settlement or otherwise) shall be allocated first to reimbursement of GPC for all expenses incurred by it in connection with such action. Any remaining award or compensation shall be used to pay NEOTHERAPEUTICS the royalty it would have been entitled to receive had the balance of such litigation and shall be entitled to retain the entire amount of any recovery or settlementdamages, to the extent attributable to sales of such infringing products, been attributable to sales of Covered Products by GPC hereunder. e. ▇▇ the absence of an agreement to institute a suit jointly, and if University does not notify Licensee of its intent to pursue legal action within ninety (90d) days, Except as provided in Subsections 11.1 — 11.2Section 13.3, Licensee may again have the right to institute suit. In such event, Licensee shall bear the entire cost of such litigation and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees) incurred by Licensee in the actionevent GPC elects not to, second to pay University an amount equal to the Earned Royalty (as that term is defined in Exhibit Cor fails to, exercise its rights under Section 13.1(a) that University would otherwise be entitled to pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as Sublicensing Royalties, as defined in Exhibit C herein, and third any remaining balance shall be paid to Licensee. f. If Licensee undertakes to defend the Patent Rights by litigation, Licensee may deduct from its royalty payments to University with respect to any alleged infringement of a Patent licensed to GPC under this Agreement (excluding any Patent included solely in the Patent Rights subject GPC Development Technology) within one hundred twenty (120) days after receiving notice thereof, NEOTHERAPEUTICS shall have the right, but not the duty, to suit an amount not exceeding fifty institute patent infringement actions against Third Parties with respect to any such alleged infringement NEOTHERAPEUTICS shall take all such actions under this Section 13.1(d) in reasonable consultation with GPC and shall keep GPC apprised as to the status of any such infringement action NEOTHERAPEUTICS institutes. GPC shall execute all reasonable, necessary and proper documents and take such actions as shall be appropriate to allow NEOTHERAPEUTICS to institute and prosecute infringement actions under this Section 13.1(d). Any award or compensation (50%) including the fair market value of Licensee's expenses and reasonable costs of such action, including reasonable attorney's fees, provided however, that such reduction shall not exceed fifty percent (50%) of the total royalty due to University in any single calendar year. 11.3 In the event that a declaratory judgment action alleging invalidity or non-infringement monetary compensation) paid by Third Parties as a result of any of the Patent Rights shall be infringement action brought against Licensee or raised by NEOTHERAPEUTICS under this Section 13.1(d) (whether by way of counterclaim settlement or affirmative defense otherwise) shall be allocated first to reimbursement of NEOTHERAPEUTICS for all expenses incurred by it in an infringement suit brought by Licensee under this Section, pursuant to this Agreement and connection with such action. Any remaining award or compensation shall be allocated equally between the provisions of Title 35 U.S.C. § 29 or other statutes, Licensee may: a. defend the suit in its own name, at its own expense, and on its own behalf for presumably valid claims in the Patent Rights; b. ▇▇ any such suit, ultimately to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement consistent with this Section; andParties.

Patent Enforcement. 11.1 University The parties acknowledge and Licensee agree that the enforcement of certain patent rights may be subject to inform SSP’s rights under agreements it has with the other Party promptly in writing of anysuspected parties. Subject to the foregoing, with respect to any infringement or suspected infringement of the Licensed Patents or Seller DuraSite Improvement Patents in the Licensed Field anywhere in the Territory (the “Patent Rights”), Seller shall have the first right, but not the obligation to bring an enforcement action and take any other reasonable steps to defend the Patent Rights by a third partyagainst infringement; which steps may include the negotiation of appropriate settlements and cross-licenses. Licensee Buyer shall have, for a period of 120 days from the date of any notice of infringement of the Patent Rights, the first right to institute suit against such third party and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees through appeal) incurred by Licensee in the action, second to pay University an amount equal to the Sublicensing Royalty that University would otherwise be entitled to at that time pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as sublicensing revenue, and third any remaining balance shall be paid to Licensee. 11.2 Thereafter, University and Licensee shall each have the right to institute an approve any settlement, cross-license, etc., such approval not to be unreasonably withheld or delayed. Buyer hereby agrees, in addition to its obligations in the last sentence of this Section 7, to be joined as a party to any such action. The costs of such enforcement action for infringement of the Patent Rights against such third party in accordance with the following: a. If both University and Licensee agree to institute suit jointly, the suit shall be brought in both their names, the out-of-pocket costs thereof shall be borne equally, [***] and any recovery or settlement, after the reimbursement of costs and expenses (including reasonable attorneys' fees incurred shall [***]. If Seller does not initiate a response to any infringement in the action) shall be shared equally. b. ▇▇▇▇▇▇▇▇▇▇ Territory and Licensee shall agree to the manner in which they shall exercise control over such suit. Each Party, at its option, may be represented by separate counsel of its own selection, the fees for which shall be paid by University. c. ▇▇ the absence of an agreement to institute a suit jointly, University may, but is not obligated to, institute suit, and at its option, join Licensee as a plaintiff. If University decides to institute suit, it shall notify Licensee in writing. d. Licensee's failure to notify University in writing Licensed Field within thirty (30) days after the date of University's it has received notice pursuant thereof, then Buyer, subject to Section 11.2(c) above, that it will join in enforcing the Patent Rights pursuant to the terms hereofany rights SSP may have, shall be deemed conclusively to be Licensee's assignment to University of all rights, causes of action, and damages resulting from any such alleged infringement. University shall bear the entire cost of such litigation and shall be entitled to retain the entire amount of any recovery or settlement. e. ▇▇ the absence of an agreement to institute a suit jointly, and if University does not notify Licensee of its intent to pursue legal action within ninety (90) days, as provided in Subsections 11.1 — 11.2, Licensee may again have the right to institute suit. In such event, Licensee shall bear the entire cost of such litigation and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees) incurred by Licensee in the action, second to pay University undertake an amount equal to the Earned Royalty (as that term is defined in Exhibit C) that University would otherwise be entitled to pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as Sublicensing Royalties, as defined in Exhibit C herein, and third any remaining balance shall be paid to Licensee. f. If Licensee undertakes action to defend the Patent Rights by litigation, Licensee may deduct from its royalty payments to University with respect to the Patent Rights subject to suit an amount not exceeding fifty (50%) of Licensee's expenses and reasonable costs of such action, including reasonable attorney's fees, provided however, that such reduction shall not exceed fifty percent (50%) of the total royalty due to University in any single calendar year. 11.3 In the event that a declaratory judgment action alleging invalidity or non-infringement of any of the Patent Rights shall be brought against Licensee or raised by way of counterclaim or affirmative defense in an infringement suit brought by Licensee under this Section, pursuant to this Agreement and the provisions of Title 35 U.S.C. § 29 or other statutes, Licensee may: a. defend the suit in its own name, at its own expense. Seller shall have the right to approve any settlement, and on its own behalf for presumably valid claims in the Patent Rights; b. ▇▇ cross-license, etc., such approval not to be unreasonably withheld or delayed. Recovery from any settlement or judgment from any such suitaction undertaken and funded by Buyer shall go first to reimburse the expenses of Buyer and the remainder shall be treated as Net Sales under the Asset Purchase Agreement. Notwithstanding the foregoing, ultimately if the monetary recovery is less than the out-of-pocket expenses of Seller and Buyer, reimbursement shall be [***]. Buyer and Seller shall assist one another and reasonably cooperate in any such litigation at the other’s reasonable request without charge to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement consistent with this Section; andthe requesting party. 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Patent Enforcement. 11.1 University (a) DEKALB and Licensee agree MONSANTO shall each give prompt notice to inform the other Party promptly in writing of anysuspected any infringement of the Licensed MONSANTO Patent Rights by a third party. Licensee shall have, for a period of 120 days from the date of any notice of infringement or of the Licensed DEKALB Patent Rights within the Licensed Field which may come to its attention. (b) MONSANTO shall have the exclusive right (but not the obligation) to institute and conduct legal action against third-party infringers of the Licensed MONSANTO Patent Rights, and to enter into settlement agreements as a way of responding to any infringements as may be deemed appropriate by MONSANTO. MONSANTO shall receive the first right full benefits of any action it takes pursuant to institute suit against this Subsection 6.02; provided however, that once any attorney's fees and other reasonable costs incurred in conducting such third party and legal action have been deducted from any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees through appeal) incurred by Licensee in the action, second to pay University an amount equal to the Sublicensing Royalty that University would otherwise be entitled to at that time pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement obtained from enforcement of costs and expenses was treated as sublicensing revenue, and third any remaining balance shall be paid to Licensee. 11.2 Thereafter, University and Licensee shall each have the right to institute an action for infringement of the Licensed MONSANTO Patent Rights against which arise, MONSANTO shall pay to DEKALB its pro rata portion of such third party recovery, calculated in accordance with the following: a. If both University and Licensee agree terms of this Agreement as they apply to institute suit jointly, the suit shall be brought in both their names, the out-of-pocket costs thereof shall be borne equally, and any recovery or settlement, after the reimbursement of costs and expenses (including reasonable attorneys' fees incurred in the action) shall be shared equally. b. ▇▇▇▇▇▇▇▇▇▇ and Licensee shall agree to the manner in which they shall exercise control over such suit. Each Party, at its option, may be represented by separate counsel of its own selection, the fees for which shall be paid by University. c. ▇▇ the absence of an agreement to institute a suit jointly, University may, but is not obligated to, institute suit, and at its option, join Licensee as a plaintiff. If University decides to institute suit, it shall notify Licensee in writing. d. Licensee's failure to notify University in writing within thirty (30) days after the date of University's notice pursuant to Section 11.2(c) above, that it will join in enforcing the Patent Rights amounts received pursuant to the terms hereofapplicable Licensed MONSANTO Patent Rights. (c) If the activities of the third party infringing the Licensed MONSANTO Patent Rights result in a material adverse effect on the business of DEKALB or any of its Affiliates or International Associates or sublicensees and at the end of One Hundred and Eighty (180) days from the receipt of notice from DEKALB of such infringement, the third party is both unlicensed under the Licensed MONSANTO Patent Rights and is engaging in activities which are an infringement of the Licensed MONSANTO Patent Rights, and MONSANTO has not brought a suit, action or other proceeding for infringement against such third party, then DEKALB and all of its Affiliates and International Associates and sublicensees shall be deemed conclusively to be Licensee's assignment to University of all rights, causes of action, and damages resulting excused from any such alleged infringement. University shall bear making the entire cost of such litigation and shall be entitled to retain the entire amount of any recovery or settlement. e. ▇▇ the absence of an agreement to institute a suit jointly, and if University does not notify Licensee of its intent to pursue legal action within ninety (90) days, as provided in Subsections 11.1 — 11.2, Licensee may again have the right to institute suit. In such event, Licensee shall bear the entire cost of such litigation and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees) incurred by Licensee in the action, second to pay University an amount equal to the Earned Royalty (as that term is defined in Exhibit C) that University would payments otherwise be entitled to pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as Sublicensing Royalties, as defined in Exhibit C herein, and third any remaining balance shall be paid to Licensee. f. If Licensee undertakes to defend the Patent Rights by litigation, Licensee may deduct from its royalty payments to University due hereunder with respect to revenues derived from sales of Licensed DEKALB Corn Products or Licensed MONSANTO Corn Products in a country in which the competitive infringing activity occurs. Such excuse from payment shall arise only as to sales by DEKALB and its Affiliates, International Associates and sub-licensees of the affected Licensed DEKALB Corn Products or Licensed MONSANTO Corn Products in the country in which the infringing products are sold and shall continue only for so long as the infringing products continue to be infringing and to so compete with such Licensed DEKALB Corn Products or Licensed MONSANTO Corn Products unchallenged by an infringement suit, action or other proceeding brought by MONSANTO. If the infringing activities of more than one third party result in such a material adverse effect, then MONSANTO will fulfill its obligation under this Subsection through litigation with only one such third party at a time. (d) DEKALB shall have the exclusive right (but not the obligation) to institute and conduct legal action against third-party infringers of the Licensed DEKALB Patent Rights subject Rights, and to suit an amount not exceeding fifty (50%) enter into settlement agreements as a way of Licensee's expenses and reasonable costs responding to any infringements as may be deemed appropriate by DEKALB. DEKALB shall receive the full benefits of such action, including reasonable attorney's fees, any action it takes pursuant to this Subsection 6.02; provided however, that once any attorney's fees and other reasonable costs incurred in conducting such reduction legal action have been deducted from any recovery obtained from enforcement of Licensed DEKALB Patent Rights which arise, DEKALB shall pay (e) If the activities of the third party infringing the Licensed DEKALB Patent Rights result in a material adverse effect on the business of MONSANTO's sublicensees and at the end of One Hundred and Eighty (180) days from the receipt of notice from MONSANTO of such infringement, the third party is both unlicensed under the Licensed DEKALB Patent Rights and is engaging in activities which are an infringement of the Licensed DEKALB Patent Rights, and DEKALB has not brought a suit, action or other proceeding for infringement against such third party, then MONSANTO and all of its sublicensees shall be excused from making the payments otherwise due hereunder with respect to revenues derived from sublicenses of Licensed MONSANTO Corn Products or Licensed DEKALB Corn Products in the country in which the competitive infringing activity occurs. Such excuse from payment shall arise only as to sales by MONSANTO's Affiliates, International Associates and sublicensees of the affected Licensed MONSANTO Corn Products or Licensed DEKALB Corn Products in the country in which the infringing products are sold and shall continue only for so long as the infringing products continue to be infringing and to so compete with such Licensed MONSANTO Corn Products or Licensed DEKALB Corn Products unchallenged by an infringement suit, action or other proceeding brought by DEKALB. If the infringing activities of more than one third party result in such a material adverse effect, then DEKALB will fulfill its obligation under this Subsection through litigation with only one such third party at a time. (f) DEKALB shall not exceed fifty percent have the right (50%by operation of law or otherwise) to enforce any Licensed MONSANTO Patent Right licensed hereunder against any alleged infringer. MONSANTO shall not have the right (by operation of the total royalty due law or otherwise) to University in enforce any single calendar yearLicensed DEKALB Patent Right licensed hereunder against any alleged infringer. 11.3 In the event that a declaratory judgment action alleging invalidity or non-infringement of any of the Patent Rights shall be brought against Licensee or raised by way of counterclaim or affirmative defense in an infringement suit brought by Licensee under this Section, pursuant to this Agreement and the provisions of Title 35 U.S.C. § 29 or other statutes, Licensee may: a. defend the suit in its own name, at its own expense, and on its own behalf for presumably valid claims in the Patent Rights; b. ▇▇ any such suit, ultimately to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement consistent with this Section; and

Patent Enforcement. 11.1 University and Licensee agree to inform the other Party promptly in writing of anysuspected any suspected infringement of the Patent Rights by a third party. Licensee shall have, for a period of 120 days from the date of any notice of infringement of the Patent Rights, the first right to institute suit against such third party and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' ’ fees through appeal) incurred by Licensee in the action, second to pay University an amount equal to the Sublicensing Royalty that University would otherwise be entitled to at that time pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as sublicensing revenueSublicense Revenue, as defined in Exhibit C, and third any remaining balance shall be paid to Licensee. 11.2 Thereafter, University and Licensee shall each have the right to institute an action for infringement of the Patent Rights against such third party in accordance with the following:: Exclusive License – APRO Bio Pharma a. If both University and Licensee agree to institute suit jointly, the suit shall be brought in both their names, the out-of-pocket costs thereof shall be borne equally, and any recovery or settlement, after the reimbursement of costs and expenses (including reasonable attorneys' ’ fees incurred in the action) , shall be shared equally. b. ▇▇▇▇▇▇▇▇▇▇ University and Licensee shall agree to the manner in which they shall exercise control over such suit. Each Party, at its option, may be represented by separate counsel of its own selection, the fees for which shall be paid by University. c. ▇▇ In the absence of an agreement to institute a suit jointly, University may, but is not obligated to, institute suit, and at its option, join Licensee as a plaintiff. If University decides to institute suit, it shall notify Licensee in writing. d. Licensee's ’s failure to notify University in writing within thirty (30) days after the date of University's ’s notice pursuant to Section 11.2(c) above, that it will join in enforcing the Patent Rights pursuant to the terms hereof, shall be deemed conclusively to be Licensee's ’s assignment to University of all rights, causes of action, and damages resulting from any such alleged infringement. University shall bear the entire cost of such litigation and shall be entitled to retain the entire amount of any recovery or settlement. e. ▇▇ In the absence of an agreement to institute a suit jointly, and if University does not notify Licensee of its intent to pursue legal action within ninety (90) days, as provided in Subsections 11.1 — – 11.2, Licensee may again have the right to institute suit. In such event, Licensee shall bear the entire cost of such litigation and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' ’ fees) incurred by Licensee in the action, second to pay University an amount equal to the Earned Sublicensing Royalty (as that term is defined set forth in Exhibit C) that University would otherwise be entitled to pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as Sublicensing RoyaltiesSublicense Revenues, as defined in Exhibit C hereinC, and third any remaining balance shall be paid to Licensee. f. If Licensee undertakes to defend the Patent Rights by litigation, Licensee may deduct from its royalty payments to University with respect to the Patent Rights subject to suit an amount not exceeding fifty (50%) of Licensee's expenses and reasonable costs of such action, including reasonable attorney's fees, provided however, that such reduction shall not exceed fifty percent (50%) of the total royalty due to University in any single calendar year. 11.3 In the event that a declaratory judgment action alleging invalidity or non-infringement of any of the Patent Rights shall be brought against Licensee or raised by way of counterclaim or affirmative defense in an infringement suit brought by Licensee under this Section, pursuant to this Agreement and the provisions of Title 35 U.S.C. § 29 or other statutes, Licensee may: a. defend the suit in its own name, at its own expense, and on its own behalf for presumably valid claims in the Patent Rights; b. ▇▇ in any such suit, ultimately to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement consistent with this Section; and