Common use of Second Right Clause in Contracts

Second Right. If the Responsible Party fails to undertake any such proceedings, then the Non-Responsible Party may give the Responsible Party notice and reasonable supporting evidence of infringement by a Third Party requesting the Responsible Party to undertake such proceedings within ninety (90) days of the date of notice or a shorter period if required to comply with Applicable Law, and if the Responsible Party decides not to do so, then with respect to infringement of any Regeneron Patent Rights or Joint Patent Right, the Non-Responsible Party shall be entitled to do so at its own cost and expense, subject to Section 10.8.6 (Reimbursement by the Responsible Party). Thereafter, in such case, the Non-Responsible Party shall be responsible for enforcing Regeneron Patent Rights or Joint Patent Rights and shall be the “Responsible Party” for the purposes of this Section 10.8.2 (Second Right). The newly designated Responsible Party shall control the conduct of any claim or proceedings including any counterclaim for invalidity or unenforceability or any declaratory judgment action, provided, however that such newly designated Responsible Party shall consult with and consider in good faith any reasonable comments made by the newly designated Non-Responsible Party in relation to the conduct of such proceedings. The Non-Responsible Party shall provide all necessary assistance to the Responsible Party in relation to such proceedings. The Responsible Party shall have sole right to settle such proceedings including any counterclaim for invalidity or unenforceability; provided that such settlement does not include a license under Regeneron Patent Rights or Joint Patent Rights and does not include any admission concerning claim invalidity or unenforceability of a Regeneron Patent Right or a Joint Patent Rights or bind the Non-Responsible Party to any monetary settlements. If the settlement includes a license under Regeneron Patent Rights or Joint Patent Rights or any admission concerning claim invalidity or unenforceability of a Regeneron Patent Right or Joint Patent Right, then the Non-Responsible Party’s consent to the terms of such license or any admission concerning claim invalidity or unenforceability of a Regeneron Patent Right or a Joint Patent Rights shall be required, such consent not to be unreasonably withheld, conditioned or delayed.