Third Party Defense or Counterclaim Sample Clauses

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 7.3, that any INS Patent or ViroPharma Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. With respect to the INS Patents, INS shall have the first right, but not the obligation, through counsel reasonably acceptable to ViroPharma, to respond to such defense or defend against such counterclaim (as applicable) and, if ViroPharma (or its Sublicensees or any of its or their respective Affiliates) is pursuing the applicable infringement action under Section 7.3, ViroPharma (or its Sublicensees or any of its or their respective Affiliates) shall allow INS to control such response or defense (as applicable) provided, that control of the defense of the INS Technology Controlled by INS pursuant to the Academic License is subject to the terms of the Academic License. With respect to the ViroPharma Patents, ViroPharma shall have the first right, but not the obligation, through counsel reasonably acceptable to INS, to respond to such defense or defend against such counterclaim (as applicable) and, if INS is pursuing the applicable infringement action under Section 7.3, INS shall allow ViroPharma to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Party controlling such response or defense. If either Party (and such Party’s licensors, to the extent permitted by its agreements therewith, and Sublicensees, if any) determines not to assume or fails to assume such defense within relevant timeframes, the other Party shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that such other Party shall obtain the written consent of INS, with respect to the INS Patents, or ViroPharma, with respect to the ViroPharma Patents, prior to ceasing to defend, settling or otherwise compromising any such action or claim, such consent not to be unreasonably withheld or delayed.

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any action or proceeding with respect to a Field Infringement under Section 9.3, that any Arena Patent or Program Patent is invalid or unenforceable, then the Parties, through the counsel jointly engaged by the Parties pursuant to Section 9.3, shall respond to such defense or defend against such counterclaim (as applicable); provided, that the Parties shall fully consider and seek to accommodate Arena’s global intellectual property litigation positions in all such decisions that may impact such global positions and Eisai shall fully take into account the impact outside the Territory of all its responses to such defense and not unreasonably reject or unreasonably act contrary to, Arena’s advice and suggestions with respect thereto, taking into account Arena’s interests with respect to the Products and other Compound Products and Related Products outside the Territory. The Parties shall share all out-of-pocket costs and expenses of conducting any such action or proceeding, with Eisai paying […***…]%, and Arena paying […***…]%, of such costs and expenses.

Third Party Defense or Counterclaim. 8.5.1 If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 8.7 (Enforcement) that any CytomX Patent, Collaboration Patent or Moderna Patent is invalid or unenforceable, then the Party defending such infringement action shall promptly give written notice to the other Party. Each Party shall reasonably cooperate with the other Party in any such action. 8.5.2 With respect to the [***], [***] shall respond to such defense and use Commercially Reasonable Efforts to defend against such counterclaim (as applicable) and, if [***] is pursuing the applicable infringement action under Section 8.7 (Enforcement), [***] shall allow [***] to control such response or defense (as applicable). [***] with respect to such response or defense against such counterclaim [***]. 8.5.3 With respect to the [***], [***] shall have the [***] right, but not the obligation, to defend against such counterclaim (as applicable) and, if [***] is pursuing the applicable infringement action under Section 8.7 (Enforcement), [***] shall allow [***] to control such response or defense (as applicable). [***] with respect to such response or defense against such counterclaim [***]. Notwithstanding the foregoing, if [***] fails to assume such defense in respect to any [***], [***] shall have the right to defend against such action or claim, unless [***].

Third Party Defense or Counterclaim. (i) If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 7.3 (Enforcement of Patents) or claim or counterclaim asserted under Section 7.4 (Infringement Claims by Third Parties), or in a declaratory judgment action or similar action or claim filed by such Third Party, that any Licensed Patent is invalid or unenforceable, then the Party pursuing such infringement action, or the Party first obtaining knowledge of such declaratory judgment action, as the case may be, shall promptly give written notice to the other Party. (ii) Licensee shall have the first right, but not the obligation, through counsel of its choosing, at its sole cost and expense, to defend against such action. If Licensee fails to exercise its first right to control of the defense of such action (as it considers such Licensed Patent to no longer be of strategic value to it, its Affiliates or Sublicensees) within [***] after receiving notice thereof from, or giving notice thereof to, then Sanofi shall have the right to defend such action, through counsel of its choosing, at its sole cost and expense, to defend against such action, and in such event under such Licensed Patents granted in Section 2.1 (Grants to Licensee) shall terminate unless Licensee pays Sanofi [***] of the external costs incurred by Sanofi in defending such action.

Third Party Defense or Counterclaim. 8.5.1 If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 8.4 that any CytomX Patent, Collaboration Patent or Amgen Patent is invalid or unenforceable, then the Party defending such infringement action shall promptly give written notice to the other Party. 8.5.2 With respect to the CytomX Patents, CytomX shall respond to such defense and use Commercially Reasonable Efforts to defend against such counterclaim (as applicable) and, if Amgen is pursuing the applicable infringement action under Section 8.4, Amgen shall allow CytomX to control such response or defense (as applicable). [***] with respect to such [***] with respect to [***] by the [***], and the [***] for [***] and [***] in the [***] as the [***] for [***] and [***] to [***] and [***]. If CytomX fails, notwithstanding the foregoing, to assume such defense and use Commercially Reasonable Efforts in respect thereof, Amgen or its Affiliate or Sublicensee shall have the right to defend against such action or claim. Notwithstanding anything to the contrary in this Section 8.5.2, Amgen shall not have any right to assume such defense with respect to CytomX Platform Patents. 8.5.3 With respect to the Amgen Patents, Amgen shall respond to such defense and use Commercially Reasonable Efforts to defend against such counterclaim (as applicable) and, if CytomX is pursuing the applicable infringement action under Section 8.4, CytomX shall allow Amgen to control such response or defense (as applicable). [***] with respect to such response or defense against such counterclaim with respect to [***] by the [***], and the [***] for such [***] and [***] in the [***] as the [***] for [***] and [***] to [***] and [***] of [***]. If Amgen fails, notwithstanding the foregoing, to assume such defense and use Commercially Reasonable Efforts in respect thereof, CytomX or its Affiliate or Sublicensee shall have the right to defend against such action or claim. 8.5.4 With respect to Collaboration Patents, [***] shall, itself or through counsel reasonably acceptable to [***], respond to such defense and use Commercially Reasonable Efforts to defend against such counterclaim (as applicable) and, if [***] is pursuing the applicable infringement action under Section 8.4, [***] shall allow [***] to control such response or defense. [***] shall provide [***] reasonable support to enable [***] to have standing before applicable authorities to conduct activities under this Section 8.5....

Third Party Defense or Counterclaim. (i) If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 9.4 or claim or counterclaim asserted under Section 9.5, or in a declaratory judgment action or similar action or claim filed by such Third Party, that any Licensed Patent, Product Patent or Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action, or the Party first obtaining knowledge of such declaratory judgment action, as the case may be, shall promptly give written notice to the other Party. (ii) MedRx shall have the first right, but not the obligation, through counsel of its choosing, at its sole cost and expense, to defend against such action alleging that any MedRx Maintained Patent is invalid or unenforceable, provided that the step-in right and process set forth in Section 9.4.2 shall apply mutatis mutandis. (iii) Licensee shall have the first right, but not the obligation, through counsel of its choosing, at its sole cost and expense, to defend against such action alleging that any Licensee Maintained Patent is invalid or unenforceable, provided that the step-in process set forth in Section 9.4.3 shall apply mutatis mutandis.

Third Party Defense or Counterclaim. 8.5.1 If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 8.7, that any Aerie Patent, Santen Patent or Collaboration Patent is invalid or unenforceable, then the Party defending such infringement action shall promptly give written notice to the other Party. Each Party shall reasonably cooperate with the other Party in any such action. 8.5.2 With respect to the Collaboration Patents outside the Territory or the Aerie Patents in the Territory, Aerie shall respond to such defense and use Commercially Reasonable Efforts to defend against such counterclaim (as applicable) and, if Santen is pursuing the applicable infringement action under Section 8.7, Aerie shall allow Santen to control such response or defense (as applicable). Any costs and expenses of Aerie with respect to such response or defense against such counterclaim [***]. Aerie agrees to consult with and take into account Santen’s reasonable comments on such response or defense. 8.5.3 With respect to the Collaboration Patents in the Territory, Santen shall respond to such defense and use Commercially Reasonable Efforts to defend against such counterclaim (as applicable) and, if Aerie is pursuing the applicable infringement action under Section 8.7, Santen shall allow Aerie to control such response or defense (as applicable). Any costs and expenses of Santen with respect to such response or defense against such counterclaim [***]. Santen agrees to consult with and take into account Aerie’s reasonable comments on such response or defense. 8.5.4 With respect to the Santen Patents outside the Territory, Santen shall have the first right to respond to such defense and to defend against such counterclaim (as applicable) and, if Santen does not elect to exercise the first right or Aerie is pursuing the applicable infringement action under Section 8.7, Santen shall allow Aerie to control such response or defense (as applicable). Any costs and expenses of Santen with respect to such response or defense against such counterclaim [***]. Santen agrees to consult with and take into account Aerie’s reasonable comments on such response or defense. 8.5.5 Notwithstanding the foregoing, if one Party fails to assume such defense and use Commercially Reasonable Efforts in respect to any Collaboration Patent, the other Party or its Affiliates or Sublicensees shall have the right to defend against such action or claim [***]. The defending Party agrees to consult with and tak...

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under section 5.3, with respect to an Infringement, that any Amyris Patent or Firmenich Patent is invalid or unenforceable, then the Party pursuing such infringement action shall, at its sole cost, have the sole right, but not the obligation, through counsel of its choosing, to respond to such defense or defend against such counterclaim (as applicable). In a case in which Firmenich is so enforcing any Amyris Patent and declines or fails to respond to such defense or defend against such counterclaim, then Amyris shall have the right to do so, at its sole cost.

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 8.3, that any Lupin Patent, Lupin Improvement Patent, Salix Patent, or Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give notice to the other Party. With respect to the Lupin Patents, the Lupin Improvement Patents, and the Joint Platform Patents, Lupin shall have the first right, but not the obligation, through counsel, in the case of any such Patent that is reasonably useful or necessary for the Exploitation of the Licensed Product, reasonably acceptable to Salix, to respond to such defense or defend against such counterclaim (as applicable) and, if Salix (or its Sublicensees or any of its or their respective Affiliates) is pursuing the applicable infringement action under Section 8.3, Salix (or its Sublicensees or any of its or their respective Affiliates) shall allow Lupin to control such response or defense (as applicable). With respect to the Salix Patents and the Joint Patents other than the Joint Platform Patents, Salix shall have the first right, but not the obligation, through counsel reasonably acceptable to Lupin, to respond to such defense or defend against such counterclaim (as applicable) and, if Lupin is pursuing the applicable infringement action under Section 8.3, Lupin shall allow Salix to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Party controlling such response or defense. If either Party (and such Party’s licensors, to the extent permitted by its agreements therewith, and Sublicensees, if any) determines not to assume or fails to assume such defense within relevant timeframes, the other Party shall, at its sole cost and expense, have the right to defend against such action or claim; provided that Salix’s right to defend against actions or claims relating to any Lupin Patent, Lupin Improvement Patent or Joint Platform Patent shall be limited to actions or claims relating to any such Patent that is reasonably useful or necessary for the Exploitation of the Licensed Product; provided further that such other Party shall obtain the written consent of Lupin, with respect to the Lupin Patents, the Lupin Improvement Patents and the Joint Patents, or Salix, with respect to the Salix Patents and the Joint Patents, prior to ceasing to defend, settling or otherwise comprom...