Common use of Patent Maintenance and Reimbursement Clause in Contracts

Patent Maintenance and Reimbursement. 6.1 Subject to this Article 6, PENN controls the prosecution and maintenance of PENN PATENT RIGHTS. COMPANY must reimburse PENN for all documented attorneys fees, expenses, official fees and other charges incurred after the EFFECTIVE DATE of the option and incident to the preparation, prosecution maintenance and licensing of PENN PATENT RIGHTS. COMPANY's obligation to reimburse such costs shall commence as of the date COMPANY closes an initial [ * ] or greater financing round; reimbursements shall be paid within thirty (30) days after COMPANY’S receipt of invoices for such fees, expenses and charges 6.2 COMPANY shall reimburse PENN for all historically accrued patent and licensing expenses, attorneys fees, official fees and all other charges incident to the preparation, prosecution and maintenance of the PENN PATENT RIGHTS that were incurred before the EFFECTIVE DATE of the Option (March 15, 2002) within thirty (30) days after the date of closing of an initial [ * ] or greater financing round. Such historically accrued expenses are estimated by PENN at approximately [ * ] but will not be greater than [ * ]. 6.3 Notwithstanding Section 6.1, COMPANY [ * ]. In that event, PENN shall be the client of the attorney, and COMPANY may directly manage the prosecution of the PENN PATENT RIGHTS through a Client and Billing Agreement attached hereto as Attachment 7 (the "CLIENT AND BILLING AGREEMENT");. COMPANY shall bear all costs of prosecution of the PENN PATENT RIGHTS. PENN shall be copied on all correspondence related to the prosecution of the PENN PATENT RIGHTS between COMPANY and the selected attorney, and retains the right to advise COMPANY regarding patent prosecution. PENN and COMPANY shall in good faith cooperate to implement the prosecution and maintenance of PENN PATENT RIGHTS in accordance with the CLIENT AND BILLING AGREEMENT and COMPANY must promptly pay for all ongoing attorneys fees, expenses, official fees and all other charges incident to the preparation, prosecution and maintenance of the PENN PATENT RIGHTS after the EFFECTIVE DATE of this AGREEMENT in accordance with such CLIENT AND BILLING AGREEMENT. 6.4 COMPANY hereby covenants and agrees that it shall in good faith prosecute PENN PATENT RIGHTS in all countries set forth in Attachment 7 (the “REQUIRED TERRITORIES”); [ * ]; If COMPANY refuses such expenditures under the CLIENT AND BILLING AGREEMENT, or does not reimburse PENN for expenses related to PENN PATENT RIGHTS, COMPANY’S rights in the relevant PENN PATENT RIGHTS granted under Section 2.1 of this AGREEMENT shall, thereafter terminate on a patent-by-patent basis. Thereafter, (i) PENN will, be free, at its discretion and expense, to either abandon such applications or patents or to continue such preparation, prosecution and/or maintenance activities; and (ii) PENN may,, license such PENN PATENT RIGHTS to any third party upon such terms and conditions as PENN deems appropriate. 6.5 [ * ] 6.6 [ * ] 6.7 COMPANY may at its sole discretion (i) apply for and obtain such extension, term restoration or comparable addition to the life of the affected PENN PATENT RIGHTS and (ii) apply for and obtain such supplemental protection certificates for the approved product or process covered by the PENN PATENT RIGHTS, all to the extent the same are available pursuant to the applicable laws and regulations of the jurisdiction where such regulatory approval is given. Nothing herein shall be construed to obligate COMPANY to in fact seek extension or restoration of any PENN PATENT RIGHTS or supplemental protection for any PENN LICENSED PRODUCTS. Where COMPANY applies for and obtains supplemental protection or comparable treatment for any PENN LICENSED PRODUCT, then, subject to continued payment by COMPANY of its royalty obligations under this AGREEMENT, this AGREEMENT shall not expire pursuant to Section 5.1(a) prior to the date of termination of such supplemental protection or comparable treatment. 6.8 Notwithstanding the other provisions of this Article 6, COMPANY shall in good ▇▇▇▇▇ ▇▇▇▇▇▇ with, and regularly keep PENN apprised of, its patent prosecution, maintenance, enforcement and defense strategy and plans and shall in good faith consider PENN's comments regarding such strategy and plans including, without limitation, the following: 6.8.1 Providing to PENN, promptly upon PENN's request, copies of any office actions or proposed responses to office actions affecting PENN PATENT RIGHTS. 6.8.2 Providing to PENN, promptly upon PENN's request, copies of any written communications alleging infringement of, or responding to allegations of infringement of, the PENN PATENT RIGHTS by third parties and any pleadings, motions, briefs or other substantive papers filed by COMPANY or any third parties or proposed to be filed by COMPANY, in connection with any litigation, arbitration or regulatory proceedings (including interference and opposition proceedings). 7. INFRINGEMENT AND LITIGATION 7.1 PENN and COMPANY are responsible for notifying each other promptly of any infringement of PENN PATENT RIGHTS which may come to their attention. PENN and COMPANY shall consult one another in a timely manner concerning any appropriate response to the infringement. 7.2 COMPANY may prosecute such infringement at its own expense. COMPANY must not settle or compromise any such suit in a manner that imposes any obligations or restrictions on PENN or grants any rights to the or the PENN PATENT RIGHTS, without PENN's prior written permission. Financial recoveries from any such litigation will first be applied to reimburse COMPANY for its litigation expenditures with additional recoveries being paid to COMPANY, subject to a royalty due PENN based on the provisions of Article 3. 7.3 COMPANY's rights under Section 7.2 are subject to the continuing right of PENN to intervene at PENN's own expense and join COMPANY in any claim or suit for infringement of the PENN PATENT RIGHTS. Any consideration received by COMPANY in settlement of any claim or suit shall be shared between PENN and COMPANY in proportion with their share of the litigation expenses in such infringement action. 7.4 Subject to COMPANY’S obligations under Section 6.7 above, COMPANY shall be free to determine at its sole discretion when, if at all, and how to assert and prosecute infringement claims relating to PENN PATENT RIGHTS where such determinations are based upon bona fide strategic issues such as COMPANY’S concerns regarding challenges to the validity of the PENN PATENT RIGHTS. If COMPANY elects at its sole discretion not to prosecute or otherwise ▇▇▇▇▇ any infringement for non-strategic reasons , COMPANY shall so notify PENN, and PENN may thereafter prosecute such infringement at its own expense. In such event, financial recoveries will be entirely retained by PENN. 7.5 In any action to enforce any of the PENN PATENT RIGHTS, either party, at the request and expense of the other party shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 [ * ..]

Patent Maintenance and Reimbursement. 6.1 Subject PENN shall control and diligently prosecute and maintain PENN PATENT RIGHTS provide LICENSEE shall promptly reimburse PENN for all the attorneys fees, expenses, official fees and other charges incident to this Article 6the preparation, PENN controls the prosecution and maintenance of PENN PATENT RIGHTS, as documented in the memorandum of October 15, 1993 from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to ▇▇▇▇▇ ▇▇▇▇▇▇, attached hereto as Exhibit 1. COMPANY must PENN shall provide LICENSEE with itemized statements reflecting these expenses LICENSEE shall reimburse PENN for such past expenses according to the following schedule: Date of Payment Amount of Payment --------------- ----------------- Within 90 Days of the EFFECTIVE DATE One-quarter (1/4) of accrued expenses; Upon the 1st Anniversary of This One-quarter (1/4) of accrued expenses; Agreement Upon the 2nd Anniversary of This One-half (1/2) of accrued expenses. Anniversary LICENSEE shall also promptly reimburse PENN for all documented attorneys fees, expenses, official fees and other charges incurred after the EFFECTIVE DATE of the option and incident to the preparation, prosecution maintenance and licensing of PENN PATENT RIGHTS. COMPANY's obligation to reimburse such costs shall commence as of the date COMPANY closes an initial [ * ] or greater financing round; reimbursements shall be paid within thirty (30) days after COMPANY’S receipt of invoices for such fees, expenses and charges 6.2 COMPANY shall reimburse PENN for all historically accrued patent and licensing expenses, attorneys fees, official fees and all other charges incident to the preparation, prosecution and maintenance of the PENN PATENT RIGHTS that were incurred before subsequent to the EFFECTIVE DATE of the Option (March 15this Agreement; provided, 2002) within thirty (30) days however, that PENN will file patent applications on technology only after the date receipt of closing of an initial [ * ] or greater financing round. Such historically accrued expenses are estimated by PENN at approximately [ * ] but will not be greater than [ * ]. 6.3 Notwithstanding Section 6.1, COMPANY [ * ]. In notice from LICENSEE that event, PENN shall be the client of the attorney, and COMPANY may directly manage the prosecution of the PENN PATENT RIGHTS through a Client and Billing Agreement attached hereto as Attachment 7 (the "CLIENT AND BILLING AGREEMENT");. COMPANY shall bear all costs of prosecution such technology should become should become part of the PENN PATENT RIGHTS. PENN shall be copied on all correspondence related to the prosecution of the PENN PATENT RIGHTS between COMPANY and the selected attorney, and retains the right to advise COMPANY regarding patent prosecution. PENN and COMPANY shall in good faith cooperate to implement the prosecution and maintenance of PENN PATENT RIGHTS in accordance with the CLIENT AND BILLING AGREEMENT and COMPANY must promptly pay for all ongoing attorneys fees, expenses, official fees and all other charges incident to the preparation, prosecution and maintenance of the PENN PATENT RIGHTS after the EFFECTIVE DATE of this AGREEMENT in accordance with such CLIENT AND BILLING AGREEMENT. 6.4 COMPANY hereby covenants and agrees that it shall in good faith prosecute PENN PATENT RIGHTS in all countries set forth in Attachment 7 (the “REQUIRED TERRITORIES”); [ * ]; If COMPANY refuses such expenditures under the CLIENT AND BILLING AGREEMENT, or does not reimburse PENN for expenses related to PENN PATENT RIGHTS, COMPANY’S rights in the relevant PENN PATENT RIGHTS granted under Section 2.1 of this AGREEMENT shall, thereafter terminate on a patent-by-patent basis. Thereafter, (i) PENN will, be free, at its discretion and expense, to either abandon such applications or patents or to continue such preparation, prosecution and/or maintenance activities; and (ii) PENN may,, license such PENN PATENT RIGHTS to any third party upon such terms and conditions as PENN deems appropriate. 6.5 [ * ] 6.6 [ * ] 6.7 COMPANY may at 6.2 LICENSEE and its sole discretion (i) apply for sublicensees shall comply with all United States and obtain such extension, term restoration or comparable addition foreign laws with respect to the life patent marking of the affected PENN PATENT RIGHTS and (ii) apply for and obtain such supplemental protection certificates for the approved product or process covered by the PENN PATENT RIGHTS, all to the extent the same are available pursuant to the applicable laws and regulations of the jurisdiction where such regulatory approval is given. Nothing herein shall be construed to obligate COMPANY to in fact seek extension or restoration of any PENN PATENT RIGHTS or supplemental protection for any PENN LICENSED PRODUCTS. Where COMPANY applies for and obtains supplemental protection or comparable treatment for any PENN LICENSED PRODUCT, then, subject to continued payment by COMPANY of its royalty obligations under this AGREEMENT, this AGREEMENT shall not expire pursuant to Section 5.1(a) prior to the date of termination of such supplemental protection or comparable treatment. 6.8 Notwithstanding the other provisions of this Article 6, COMPANY shall in good ▇▇▇▇▇ ▇▇▇▇▇▇ with, and regularly keep PENN apprised of, its patent prosecution, maintenance, enforcement and defense strategy and plans and shall in good faith consider PENN's comments regarding such strategy and plans including, without limitation, the following: 6.8.1 Providing to PENN, promptly upon PENN's request, copies of any office actions or proposed responses to office actions affecting PENN PATENT RIGHTS. 6.8.2 Providing to PENN, promptly upon PENN's request, copies of any written communications alleging infringement of, or responding to allegations of infringement of, the PENN PATENT RIGHTS by third parties and any pleadings, motions, briefs or other substantive papers filed by COMPANY or any third parties or proposed to be filed by COMPANY, in connection with any litigation, arbitration or regulatory proceedings (including interference and opposition proceedings). 7. INFRINGEMENT AND LITIGATION 7.1 PENN and COMPANY are responsible for notifying each other promptly of any infringement of PENN PATENT RIGHTS which may come to their attention. PENN and COMPANY shall consult one another in a timely manner concerning any appropriate response to the infringement. 7.2 COMPANY may prosecute such infringement at its own expense. COMPANY must not settle or compromise any such suit in a manner that imposes any obligations or restrictions on PENN or grants any rights to the or the PENN PATENT RIGHTS, without PENN's prior written permission. Financial recoveries from any such litigation will first be applied to reimburse COMPANY for its litigation expenditures with additional recoveries being paid to COMPANY, subject to a royalty due PENN based on the provisions of Article 3. 7.3 COMPANY's rights under Section 7.2 are subject to the continuing right of PENN to intervene at PENN's own expense and join COMPANY in any claim or suit for infringement of the PENN PATENT RIGHTS. Any consideration received by COMPANY in settlement of any claim or suit shall be shared between PENN and COMPANY in proportion with their share of the litigation expenses in such infringement action. 7.4 Subject to COMPANY’S obligations under Section 6.7 above, COMPANY shall be free to determine at its sole discretion when, if at all, and how to assert and prosecute infringement claims relating to PENN PATENT RIGHTS where such determinations are based upon bona fide strategic issues such as COMPANY’S concerns regarding challenges to the validity of the PENN PATENT RIGHTS. If COMPANY elects at its sole discretion not to prosecute or otherwise ▇▇▇▇▇ any infringement for non-strategic reasons , COMPANY shall so notify PENN, and PENN may thereafter prosecute such infringement at its own expense. In such event, financial recoveries will be entirely retained by PENN. 7.5 In any action to enforce any of the PENN PATENT RIGHTS, either party, at the request and expense of the other party shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 [ * ..]

Patent Maintenance and Reimbursement. 6.1 Subject to this Article 6, PENN controls the prosecution shall control and maintenance of diligently prosecute and maintain PENN PATENT RIGHTS. COMPANY must RIGHTS provided APOLLON shall promptly reimburse PENN for all [ ] documented attorneys attorneys' fees, expenses, official fees and other charges incurred after the EFFECTIVE DATE of the option and incident to the preparation, prosecution maintenance and licensing of PENN PATENT RIGHTS. COMPANY's obligation to reimburse such costs shall commence as of the date COMPANY closes an initial [ * ] or greater financing round; reimbursements shall be paid within thirty (30) days after COMPANY’S receipt of invoices for such fees, expenses and charges 6.2 COMPANY shall reimburse PENN for all historically accrued patent and licensing expenses, attorneys fees, official fees and all other charges incident to the preparation, prosecution and maintenance of the PENN PATENT RIGHTS that were incurred before the EFFECTIVE DATE of the Option (March 15, 2002) RIGHTS. PENN shall provide APOLLON with itemized statements reflecting these expenses and APOLLON shall reimburse PENN for such expenses within thirty (30) days after the date receipt of closing such statement. [ ] such reimbursements will be [ ] creditable against royalties due pursuant to ARTICLE 3 hereof on a country by country basis; provided, however, that if APOLLON negotiates a license with License Agreement (I)--Apollon/Penn 2 December 1994 version WISTAR, wherein [ ] of an initial such fees, expenses, and charges are creditable against royalties due WISTAR, such fees, expenses and charges will be [ * ] or greater financing round. Such historically accrued expenses are estimated by creditable against royalties due PENN; but in no event shall any royalty payment to PENN at approximately [ * ] but will not any time be greater reduced by more than [ * ], on an individual basis for each patent application and associated issued patent. 6.3 Notwithstanding Section 6.16.2 In the event that the parties elect to file one or more patent applications comprising JOINT PATENT RIGHTS, COMPANY [ * ]. In that event, PENN the parties shall confer on how the preparation and prosecution of such applications shall be the client of the attorney, and COMPANY may directly manage the prosecution of the accomplished. APOLLON shall reimburse PENN PATENT RIGHTS through a Client and Billing Agreement attached hereto as Attachment 7 (the "CLIENT AND BILLING AGREEMENT");. COMPANY shall bear all costs of prosecution of the PENN PATENT RIGHTS. PENN shall be copied on all correspondence related to the prosecution of the PENN PATENT RIGHTS between COMPANY and the selected attorney, and retains the right to advise COMPANY regarding patent prosecution. PENN and COMPANY shall in good faith cooperate to implement the prosecution and maintenance of PENN PATENT RIGHTS in accordance with the CLIENT AND BILLING AGREEMENT and COMPANY must promptly pay for all ongoing attorneys [ ] attorneys' fees, expenses, official fees and all other charges incident to the preparation, prosecution and maintenance of the PENN JOINT PATENT RIGHTS after the EFFECTIVE DATE of this AGREEMENT in accordance with incurred by PENN. [ ] such CLIENT AND BILLING AGREEMENT. 6.4 COMPANY hereby covenants and agrees that it reimbursements shall in good faith prosecute PENN PATENT RIGHTS in all countries set forth in Attachment 7 (the “REQUIRED TERRITORIES”); be [ * ]; If COMPANY refuses such expenditures under the CLIENT AND BILLING AGREEMENT, or does not reimburse PENN for expenses related ] creditable against royalties due pursuant to PENN PATENT RIGHTS, COMPANY’S rights in the relevant PENN PATENT RIGHTS granted under Section 2.1 of this AGREEMENT shall, thereafter terminate ARTICLE 3 hereof on a patent-by-patent country by country basis. Thereafter, (i) PENN will, be free, at its discretion and expense, to either abandon such applications or patents or to continue such preparation, prosecution and/or maintenance activities; and (ii) PENN may,, license such PENN PATENT RIGHTS to any third party upon such terms and conditions as PENN deems appropriate. 6.5 [ * ] 6.6 [ * ] 6.7 COMPANY may at 6.3 APOLLON and its sole discretion (i) apply for SUBLICENSEES shall comply with all United States and obtain such extension, term restoration or comparable addition foreign laws with respect to the life patent marking of the affected PENN PATENT RIGHTS and (ii) apply for and obtain such supplemental protection certificates for the approved product or process covered by the PENN PATENT RIGHTS, all to the extent the same are available pursuant to the applicable laws and regulations of the jurisdiction where such regulatory approval is given. Nothing herein shall be construed to obligate COMPANY to in fact seek extension or restoration of any PENN PATENT RIGHTS or supplemental protection for any PENN LICENSED PRODUCTS. Where COMPANY applies for . 6.4 All fees, costs, and obtains supplemental protection expenses incurred with respect to a patent convention or comparable treatment for any PENN LICENSED PRODUCTa regional authority, thensuch as the Patent Cooperative Treaty or the European Patent Convention, subject to continued payment by COMPANY of its royalty obligations under this AGREEMENT, this AGREEMENT shall not expire pursuant to Section 5.1(a) prior be apportioned on a pro rata basis to the date of termination of such supplemental protection or comparable treatmentcountries designated thereunder. 6.8 Notwithstanding the other provisions of this Article 6, COMPANY shall in good ▇▇▇▇▇ ▇▇▇▇▇▇ with, and regularly keep PENN apprised of, its patent prosecution, maintenance, enforcement and defense strategy and plans and shall in good faith consider PENN's comments regarding such strategy and plans including, without limitation, the following: 6.8.1 Providing to PENN, promptly upon PENN's request, copies of any office actions or proposed responses to office actions affecting PENN PATENT RIGHTS. 6.8.2 Providing to PENN, promptly upon PENN's request, copies of any written communications alleging infringement of, or responding to allegations of infringement of, the PENN PATENT RIGHTS by third parties and any pleadings, motions, briefs or other substantive papers filed by COMPANY or any third parties or proposed to be filed by COMPANY, in connection with any litigation, arbitration or regulatory proceedings (including interference and opposition proceedings). 7. INFRINGEMENT AND LITIGATION 7.1 PENN and COMPANY are responsible for notifying each other promptly of any infringement of PENN PATENT RIGHTS which may come to their attention. PENN and COMPANY shall consult one another in a timely manner concerning any appropriate response to the infringement. 7.2 COMPANY may prosecute such infringement at its own expense. COMPANY must not settle or compromise any such suit in a manner that imposes any obligations or restrictions on PENN or grants any rights to the or the PENN PATENT RIGHTS, without PENN's prior written permission. Financial recoveries from any such litigation will first be applied to reimburse COMPANY for its litigation expenditures with additional recoveries being paid to COMPANY, subject to a royalty due PENN based on the provisions of Article 3. 7.3 COMPANY's rights under Section 7.2 are subject to the continuing right of PENN to intervene at PENN's own expense and join COMPANY in any claim or suit for infringement of the PENN PATENT RIGHTS. Any consideration received by COMPANY in settlement of any claim or suit shall be shared between PENN and COMPANY in proportion with their share of the litigation expenses in such infringement action. 7.4 Subject to COMPANY’S obligations under Section 6.7 above, COMPANY shall be free to determine at its sole discretion when, if at all, and how to assert and prosecute infringement claims relating to PENN PATENT RIGHTS where such determinations are based upon bona fide strategic issues such as COMPANY’S concerns regarding challenges to the validity of the PENN PATENT RIGHTS. If COMPANY elects at its sole discretion not to prosecute or otherwise ▇▇▇▇▇ any infringement for non-strategic reasons , COMPANY shall so notify PENN, and PENN may thereafter prosecute such infringement at its own expense. In such event, financial recoveries will be entirely retained by PENN. 7.5 In any action to enforce any of the PENN PATENT RIGHTS, either party, at the request and expense of the other party shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 [ * ..]

Patent Maintenance and Reimbursement. 6.1 Subject to this Article 6, PENN controls the prosecution and maintenance of PENN PATENT RIGHTS. COMPANY must reimburse PENN for all documented attorneys fees, expenses, official fees and other charges incurred after the EFFECTIVE DATE of the option and incident to the preparation, prosecution maintenance and licensing of PENN PATENT RIGHTS. COMPANY's obligation to reimburse such costs shall commence as of the date COMPANY closes an initial [ * ] or greater financing round; reimbursements shall be paid within thirty (30) days after COMPANY’S receipt of invoices for such fees, expenses and charges 6.2 COMPANY shall reimburse PENN for all historically accrued patent and licensing expenses, attorneys fees, official fees and all other charges incident to the preparation, prosecution and maintenance of the PENN PATENT RIGHTS that were incurred before the EFFECTIVE DATE of the Option (March 15, 2002) within thirty (30) days after the date of closing of an initial [ * ] or greater financing round. Such historically accrued expenses are estimated by PENN at approximately [ * ] but will not be greater than [ * ]. . 6.3 Notwithstanding Section 6.1, COMPANY [ * ]. In that event, PENN shall be the client of the attorney, and COMPANY may directly manage the prosecution of the PENN PATENT RIGHTS through a Client and Billing Agreement attached hereto as Attachment 7 (the "CLIENT AND BILLING AGREEMENT");. COMPANY shall bear all costs of prosecution of the PENN PATENT RIGHTS. PENN shall be copied on all correspondence related to the prosecution of the PENN PATENT RIGHTS between COMPANY and the selected attorney, and retains the right to advise COMPANY regarding patent prosecution. PENN and COMPANY shall in good faith cooperate to implement the prosecution and maintenance of PENN PATENT RIGHTS in accordance with the CLIENT AND BILLING AGREEMENT and COMPANY must promptly pay for all ongoing attorneys fees, expenses, official fees and all other charges incident to the preparation, prosecution and maintenance of the PENN PATENT RIGHTS after the EFFECTIVE DATE of this AGREEMENT in accordance with such CLIENT AND BILLING AGREEMENT. 6.4 COMPANY hereby covenants and agrees that it shall in good faith prosecute PENN PATENT RIGHTS in all countries set forth in Attachment 7 (the “REQUIRED TERRITORIES”); [ * ]; If COMPANY refuses such expenditures under the CLIENT AND BILLING AGREEMENT, or does not reimburse PENN for expenses related to PENN PATENT RIGHTS, COMPANY’S rights in the relevant PENN PATENT RIGHTS granted under Section 2.1 of this AGREEMENT shall, thereafter terminate on a patent-by-patent basis. Thereafter, (i) PENN will, be free, at its discretion and expense, to either abandon such applications or patents or to continue such preparation, prosecution and/or maintenance activities; and (ii) PENN may,, license such PENN PATENT RIGHTS to any third party upon such terms and conditions as PENN deems appropriate. 6.5 [ * ] 6.6 [ * ] 6.7 COMPANY may at its sole discretion (i) apply for and obtain such extension, term restoration or comparable addition to the life of the affected PENN PATENT RIGHTS and (ii) apply for and obtain such supplemental protection certificates for the approved product or process covered by the PENN PATENT RIGHTS, all to the extent the same are available pursuant to the applicable laws and regulations of the jurisdiction where such regulatory approval is given. Nothing herein shall be construed to obligate COMPANY to in fact seek extension or restoration of any PENN PATENT RIGHTS or supplemental protection for any PENN LICENSED PRODUCTS. Where COMPANY applies for and obtains supplemental protection or comparable treatment for any PENN LICENSED PRODUCT, then, subject to continued payment by COMPANY of its royalty obligations under this AGREEMENT, this AGREEMENT shall not expire pursuant to Section 5.1(a) prior to the date of termination of such supplemental protection or comparable treatment. 6.8 Notwithstanding the other provisions of this Article 6, COMPANY shall in good ▇▇▇▇▇ ▇▇▇▇▇▇ with, and regularly keep PENN apprised of, its patent prosecution, maintenance, enforcement and defense strategy and plans and shall in good faith consider PENN's comments regarding such strategy and plans including, without limitation, the following: 6.8.1 Providing to PENN, promptly upon PENN's request, copies of any office actions or proposed responses to office actions affecting PENN PATENT RIGHTS. 6.8.2 Providing to PENN, promptly upon PENN's request, copies of any written communications alleging infringement of, or responding to allegations of infringement of, the PENN PATENT RIGHTS by third parties and any pleadings, motions, briefs or other substantive papers filed by COMPANY or any third parties or proposed to be filed by COMPANY, in connection with any litigation, arbitration or regulatory proceedings (including interference and opposition proceedings). 7. INFRINGEMENT AND LITIGATION 7.1 PENN and COMPANY are responsible for notifying each other promptly of any infringement of PENN PATENT RIGHTS which may come to their attention. PENN and COMPANY shall consult one another in a timely manner concerning any appropriate response to the infringement. 7.2 COMPANY may prosecute such infringement at its own expense. COMPANY must not settle or compromise any such suit in a manner that imposes any obligations or restrictions on PENN or grants any rights to the or the PENN PATENT RIGHTS, without PENN's prior written permission. Financial recoveries from any such litigation will first be applied to reimburse COMPANY for its litigation expenditures with additional recoveries being paid to COMPANY, subject to a royalty due PENN based on the provisions of Article 3. 7.3 COMPANY's rights under Section 7.2 are subject to the continuing right of PENN to intervene at PENN's own expense and join COMPANY in any claim or suit for infringement of the PENN PATENT RIGHTS. Any consideration received by COMPANY in settlement of any claim or suit shall be shared between PENN and COMPANY in proportion with their share of the litigation expenses in such infringement action. 7.4 Subject to COMPANY’S obligations under Section 6.7 above, COMPANY shall be free to determine at its sole discretion when, if at all, and how to assert and prosecute infringement claims relating to PENN PATENT RIGHTS where such determinations are based upon bona fide strategic issues such as COMPANY’S concerns regarding challenges to the validity of the PENN PATENT RIGHTS. If COMPANY elects at its sole discretion not to prosecute or otherwise ▇▇▇▇▇ any infringement for non-strategic reasons , COMPANY shall so notify PENN, and PENN may thereafter prosecute such infringement at its own expense. In such event, financial recoveries will be entirely retained by PENN. 7.5 In any action to enforce any of the PENN PATENT RIGHTS, either party, at the request and expense of the other party shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 [ * ..]