Common use of Enforcement and Defense Clause in Contracts

Enforcement and Defense. (a) ALNYLAM shall give MERCK notice of: (i) any infringement of (x) Joint Collaboration Patent Rights relating to in vitro and/or in vivo target validation and/or target identification; and/or (y) ALNYLAM RNAi Patent Rights relating to in vitro and/or in vivo target validation and/or target identification that are (A) Controlled by ALNYLAM or its Affiliates and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAM, and/or (ii) any misappropriation or misuse of ALNYLAM RNAi Technology relating to in vitro and/or in vivo target validation and/or target identification that is (A) Controlled by ALNYLAM or its Affiliates and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAM, that may come to ALNYLAM's attention. MERCK and ALNYLAM shall thereafter consult and cooperate fully to determine a course of action, including, but not limited to, the commencement of legal action by either or both MERCK and/or ALNYLAM, to terminate any infringement of such ALNYLAM RNAi Patent Rights or such Joint Collaboration Patent Rights or any misappropriation or misuse of such ALNYLAM RNAi Technology. However, ALNYLAM, upon prompt written notice to MERCK, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of ALNYLAM and MERCK, and to control the defense of any declaratory judgment action relating to such ALNYLAM RNAi Patent Rights or such Joint Collaboration Patent Rights or such ALNYLAM RNAi Technology at its own expense. ALNYLAM shall promptly inform MERCK if it elects not to exercise such first right and MERCK shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of MERCK and, if necessary, ALNYLAM, only with respect to an infringement of Joint Collaboration Patent Rights through the conduct of in vitro and/or in vivo target identification and/or target validation. Each Party shall have the right to be represented by counsel of its own choice. For the avoidance of doubt, it is agreed that MERCK shall have no right to initiate or prosecute any action or control the defense of any declaratory judgment action with respect to any ALNYLAM RNAi Patent Right or misuse or misappropriation of ALNYLAM RNAi Technology. ALNYLAM agrees that, in the event a Therapeutic Collaboration Product becomes subject to a MERCK Product Agreement, and an ALNYLAM RNAi Patent Right is infringed by a Third Party by the sale of a therapeutic product using RNA interference against the same MERCK RNAi Novel Target as such Therapeutic Collaboration Product (a "COMPETING RNAi PRODUCT") then if (a) there is no patent right Controlled by MERCK and no Joint Collaboration Patent Right that can be asserted against the alleged infringement, and (b) ALNYLAM does not assert at least one ALNYLAM RNAi Patent Right against such alleged infringement, then MERCK's license to such Therapeutic Collaboration Product will become royalty-free in countries in which the Competing RNAi Product is sold, for as long as such Competing RNAi Product is being sold in such country. The foregoing provision will be reflected in each MERCK Product Agreement. With respect to any action or defense provided for in this paragraph (a), ALNYLAM shall not admit the invalidity or unenforceability of any MERCK RNAi Patent Rights, MERCK RNAi Novel Target IP or Joint Collaboration Patent Rights without the prior written consent of MERCK.

Enforcement and Defense. (a) ALNYLAM shall give MERCK notice of: (i) any infringement of (x) Joint Collaboration Patent Rights relating to in vitro and/or in vivo target validation and/or target identification; and/or (y) ALNYLAM RNAi Patent Rights relating to in vitro and/or in vivo target validation and/or target identification that are (A) Controlled by ALNYLAM or its Affiliates and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAM, and/or (ii) any misappropriation or misuse of ALNYLAM RNAi Technology relating to in vitro and/or in vivo target validation and/or target identification that is (A) Controlled by ALNYLAM or its Affiliates and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAM, that may come to ALNYLAM's attention. MERCK and ALNYLAM shall thereafter consult and cooperate fully to determine a course of action, including, but not limited to, the commencement of legal action by either or both MERCK and/or ALNYLAM, to terminate any infringement of such ALNYLAM RNAi Patent Rights or such Joint Collaboration Patent Rights or any misappropriation or misuse of such ALNYLAM RNAi Technology. However, ALNYLAM, upon prompt written notice to MERCK, CRISPR shall have the first right and exclusive right, but not the obligation, to initiate and prosecute such legal action at its own expense and take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the name of ALNYLAM and MERCK, and to control the defense Territory of any declaratory judgment Licensed Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or action relating (each an “Infringement Action”) in the Territory, or (b) granting adequate rights and licenses to such ALNYLAM RNAi Patent Rights or such Joint Collaboration Patent Rights or such ALNYLAM RNAi Technology at its own expenseany Third Party necessary to render continued Competitive Infringement in the Territory non-infringing. ALNYLAM shall promptly Notwithstanding the foregoing, if CRISPR does not inform MERCK if CureVac that it elects not to exercise such first right and MERCK shall thereafter have the right intends to either initiate such an Infringement Action or grant adequate rights and prosecute licenses to such action or Third Party within [*****] after CRISPR’s receipt of a notice of infringement, then CureVac will have the second right, but not the obligation, to control the defense of initiate such declaratory judgment action in the name of MERCK and, if necessary, ALNYLAM, only Infringement Action with respect to such Licensed Patent Rights. For any infringement other than a Competitive Infringement, and except as set forth below, each Party will have the first right, but not the obligation to enforce and defend the Licensed Patent Rights owned solely by such Party, and CRISPR will have the first right, but not the obligation to enforce and defend the Jointly Owned Foreground Patent Rights, with the exception only of Jointly-Owned Foreground Patent Rights which solely Cover the Manufacture of the Licensed Products, for which CureVac will have the first right, but not the obligation to enforce and defend. If within [*****] after having been notified of any alleged Third Party infringement of any Licensed Patent Right or any declaratory action contemplated by Section 8.4(d), in each case, in the Field, the Party enforcing or defending the Patent Right is unsuccessful in persuading the alleged infringer to desist, or the respective competent Party shall not have brought an infringement of Joint Collaboration Patent Rights through action within such [*****] period, or if the conduct of respective competent Party has not responded to such declaratory action, then, in vitro and/or in vivo target identification and/or target validation. Each any such event the other Party shall have the right right, but not the obligation, to be represented by counsel prosecute and defend the respective Licensed Patent Rights in connection with any such matter. The Party taking action to enforce and defend under this Section 8.4(c) shall bear all of its own choice. For the avoidance of doubtcosts related to such enforcement and defense, it is agreed that MERCK shall have no right to initiate or prosecute including any action or control the defense of any declaratory judgment action with respect to any ALNYLAM RNAi Patent Right or misuse or misappropriation of ALNYLAM RNAi Technology. ALNYLAM agrees that, in the event a Therapeutic Collaboration Product becomes subject to a MERCK Product Agreement, and an ALNYLAM RNAi Patent Right is infringed by a Third Party costs incurred by the sale of a therapeutic product using RNA interference against the same MERCK RNAi Novel Target as such Therapeutic Collaboration Product (a "COMPETING RNAi PRODUCT") then if (a) there is no patent right Controlled by MERCK and no Joint Collaboration Patent Right that can be asserted against the alleged infringement, and (b) ALNYLAM does not assert at least one ALNYLAM RNAi Patent Right against such alleged infringement, then MERCK's license other Party providing support to such Therapeutic Collaboration Product will become royalty-free in countries in which enforcement and defense at the Competing RNAi Product is sold, for as long as such Competing RNAi Product is being sold in such country. The foregoing provision will be reflected in each MERCK Product Agreement. With respect to any action or defense provided for in this paragraph (a), ALNYLAM shall not admit request of the invalidity or unenforceability of any MERCK RNAi Patent Rights, MERCK RNAi Novel Target IP or Joint Collaboration Patent Rights without the prior written consent of MERCKenforcing and defending Party.

Enforcement and Defense. (a) ALNYLAM NITROMED shall give MERCK notice of: of either (i) any infringement of (x) Joint Collaboration Patent Rights relating to in vitro and/or in vivo target validation and/or target identification; and/or (y) ALNYLAM RNAi Patent Rights relating to in vitro and/or in vivo target validation and/or target identification that are (A) Controlled by ALNYLAM or its Affiliates and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAMRights, and/or (ii) any misappropriation or misuse of ALNYLAM RNAi Technology relating to in vitro and/or in vivo target validation and/or target identification that is NITROMED Know-How; or (Aiii) Controlled by ALNYLAM infringement, misappropriation or its Affiliates misuse of the Research Information and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAMInventions, that may come to ALNYLAMNITROMED's attention. MERCK and ALNYLAM NITROMED shall thereafter consult and cooperate fully to determine a course of action, including, including but not limited to, to the commencement of legal action by either or both MERCK and/or ALNYLAMand NITROMED, to terminate any infringement of such ALNYLAM RNAi Patent Rights or such Joint Collaboration Patent Rights Rights, Research Information and Inventions or any misappropriation or misuse of such ALNYLAM RNAi TechnologyNITROMED Know-How. However, ALNYLAMNITROMED, upon prompt written notice to MERCK, shall have the first right to initiate and prosecute such legal action (other than for the MERCK Information and Inventions) at its own expense and in the name of ALNYLAM NITROMED and MERCK, and or to control the defense of any declaratory judgment action relating to such ALNYLAM RNAi Patent Rights Rights, Research Information and Inventions or such Joint Collaboration Patent Rights or such ALNYLAM RNAi Technology at its own expenseNITROMED Know-How. ALNYLAM NITROMED shall promptly inform MERCK if it elects not to exercise such first right and MERCK shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of MERCK and, if necessary, ALNYLAM, only with respect NITROMED and the Parties shall share the expense of such suit equally; provided that MERCK shall pay all costs and shall recoup NITROMED's [**]percent ([**]%) share as a set-off against royalties or milestones until NITROMED's share has been fully paid; provided that the royalty payment to an infringement NITROMED in any Calendar Quarter shall not be reduced by more than [**] percent ([**]%) of Joint Collaboration Patent Rights through the conduct of monies otherwise owed to NITROMED; and any amounts not able to be reduced due to the immediately foregoing limitation shall be carried forward to future Calendar Quarters for crediting against future royalties in vitro and/or in vivo target identification and/or target validationsuch country. Each Party shall have the right to be represented by counsel of its own choice. For the avoidance of doubt, it is agreed that MERCK shall have no right to initiate or prosecute any action or control the defense of any declaratory judgment action with respect to any ALNYLAM RNAi Patent Right or misuse or misappropriation of ALNYLAM RNAi Technology. ALNYLAM agrees that, in the event a Therapeutic Collaboration Product becomes subject to a MERCK Product Agreement, and an ALNYLAM RNAi Patent Right is infringed by a Third Party by the sale of a therapeutic product using RNA interference against the same MERCK RNAi Novel Target as such Therapeutic Collaboration Product (a "COMPETING RNAi PRODUCT") then if (a) there is no patent right Controlled by MERCK and no Joint Collaboration Patent Right that can be asserted against the alleged infringement, and (b) ALNYLAM does not assert at least one ALNYLAM RNAi Patent Right against such alleged infringement, then MERCK's license to such Therapeutic Collaboration Product will become royalty-free in countries in which the Competing RNAi Product is sold, for as long as such Competing RNAi Product is being sold in such country. The foregoing provision will be reflected in each MERCK Product Agreement. With respect to any action or defense provided for in this paragraph (a), ALNYLAM shall not admit the invalidity or unenforceability of any MERCK RNAi Patent Rights, MERCK RNAi Novel Target IP or Joint Collaboration Patent Rights without the prior written consent of MERCK.

Enforcement and Defense. If Seller has the right pursuant to applicable Law to institute suit or other legal proceedings to enforce and/or defend any of the Specified AnaptysBio Patents in respect of any AB Infringement or to defend any of the Specified AnaptysBio Patents against any AB Invalidity Claim, then promptly (aand in any event within five Business Days) ALNYLAM following a Responsible Employee of Seller becoming aware of such right of Seller, Seller shall give MERCK provide notice of: of such right to Purchaser. Seller may, and if requested in writing by Purchaser within (i) any infringement ten Business Days after receipt by Purchaser of notice of such right pursuant to the first sentence of this Section 6.11(b) or (xii) Joint Collaboration Patent Rights relating five Business Days before the time limit, if any, set forth in the applicable Law for the filing of suit or other legal proceeding with respect to such enforcement or defense, whichever comes first, shall, proceed, in vitro and/or in vivo target validation and/or target identification; and/or (y) ALNYLAM RNAi Patent Rights relating to in vitro and/or in vivo target validation and/or target identification that are consultation with Purchaser, (A) Controlled by ALNYLAM in the case of AB Infringement, to institute such a suit or its Affiliates other legal proceeding and to use commercially reasonable efforts to enforce and/or defend the Specified AnaptysBio Patents, and to exercise such rights and remedies, relating to such AB Infringement as shall be available to Seller under applicable Law, or (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAM, and/or (ii) any misappropriation or misuse in the case of ALNYLAM RNAi Technology relating to in vitro and/or in vivo target validation and/or target identification that is (A) Controlled by ALNYLAM or its Affiliates and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAM, that may come to ALNYLAM's attention. MERCK and ALNYLAM shall thereafter consult and cooperate fully to determine a course of action, including, but not limited to, the commencement of legal action by either or both MERCK and/or ALNYLAMan AB Invalidity Claim, to terminate use commercially reasonable efforts to defend the Specified AnaptysBio Patents against such AB Invalidity Claim. In connection with any infringement of such ALNYLAM RNAi Patent Rights enforcement or such Joint Collaboration Patent Rights or any misappropriation or misuse of such ALNYLAM RNAi Technology. However, ALNYLAM, upon prompt written notice to MERCK, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of ALNYLAM and MERCK, and to control the defense of any declaratory judgment action relating to the Specified AnaptysBio Patents, Seller shall employ such ALNYLAM RNAi Patent Rights or counsel as Seller determines for such Joint Collaboration Patent Rights or such ALNYLAM RNAi Technology at its own expense. ALNYLAM shall promptly inform MERCK if it elects not to exercise such first right and MERCK shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of MERCK and, if necessary, ALNYLAM, only with respect to an infringement of Joint Collaboration Patent Rights through the conduct of in vitro and/or in vivo target identification and/or target validation. Each Party shall have the right to be represented by counsel of its own choice. For the avoidance of doubt, it is agreed that MERCK shall have no right to initiate or prosecute any action or control the defense of any declaratory judgment action with respect to any ALNYLAM RNAi Patent Right or misuse or misappropriation of ALNYLAM RNAi Technology. ALNYLAM agrees that, in the event a Therapeutic Collaboration Product becomes subject to a MERCK Product Agreement, and an ALNYLAM RNAi Patent Right is infringed by a Third Party by the sale of a therapeutic product using RNA interference against the same MERCK RNAi Novel Target as such Therapeutic Collaboration Product purpose (a "COMPETING RNAi PRODUCT") then if (a) there is no patent right Controlled by MERCK and no Joint Collaboration Patent Right that can be asserted against the alleged infringement, and (b) ALNYLAM does not assert at least one ALNYLAM RNAi Patent Right against such alleged infringement, then MERCK's license to such Therapeutic Collaboration Product will become royalty-free in countries in which the Competing RNAi Product is sold, for as long as such Competing RNAi Product counsel is being sold in such countryreasonably acceptable to Purchaser). (c) Allocation of Proceeds and Costs of Enforcement and Defense. The foregoing provision will be reflected in each MERCK Product Agreement. With respect to Proceeds of any action enforcement or defense provided for in this paragraph (a), ALNYLAM shall not admit the invalidity or unenforceability of any MERCK RNAi Patent Rightsof the Specified AnaptysBio Patents by Seller pursuant to this Section 6.11, MERCK RNAi Novel Target IP after deduction (and reimbursement to Seller and Purchaser) of all advances required by) the applicable counsel selected pursuant to Section 6.11(b)) actually incurred by Seller or Joint Collaboration Patent Rights without the prior written consent of MERCK.Purchaser in connection with such enforcement or defense (other than costs

Enforcement and Defense. (a) ALNYLAM shall give MERCK notice of: (i) If either Party learns of any infringement of (x) NEUROGEN Patents, MSD Patents or Joint Collaboration Patent Rights relating to in vitro and/or in vivo target validation and/or target identification; and/or (y) ALNYLAM RNAi Patent Rights relating to in vitro and/or in vivo target validation and/or target identification that are (A) Controlled by ALNYLAM or its Affiliates Patents, such Party shall promptly notify the other Party of such infringement. MSD and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAM, and/or (ii) any misappropriation or misuse of ALNYLAM RNAi Technology relating to in vitro and/or in vivo target validation and/or target identification that is (A) Controlled by ALNYLAM or its Affiliates and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAM, that may come to ALNYLAM's attention. MERCK and ALNYLAM NEUROGEN thereafter shall thereafter consult and cooperate fully to determine a course of action, including, but not limited to, action including the commencement of legal action by either or both MERCK and/or ALNYLAMof MSD and NEUROGEN, to terminate any infringement of such ALNYLAM RNAi Patent Rights or such Joint Collaboration Patent Rights or any misappropriation or misuse of such ALNYLAM RNAi TechnologyPatents. However, ALNYLAMNEUROGEN, upon prompt written notice to MERCKMSD, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of ALNYLAM and MERCKNEUROGEN (and, and if appropriate, MSD), or to control the defense of any declaratory judgment action relating to NEUROGEN Patents other than as such ALNYLAM RNAi Patent Rights or such NEUROGEN Patents include NEUROGEN’s interest in Joint Collaboration Patent Rights or such ALNYLAM RNAi Technology at its own expensePatents. ALNYLAM NEUROGEN promptly shall promptly inform MERCK MSD if it elects not to exercise such first right right, and MERCK if such infringement materially adversely affects MSD’s efforts under this Agreement, MSD thereafter shall thereafter have the right either to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of MERCK MSD and, if necessary, ALNYLAM, only with respect to an infringement of Joint Collaboration Patent Rights through the conduct of in vitro and/or in vivo target identification and/or target validationNEUROGEN. Each Party shall have the right be entitled to be represented by counsel of its own choice. For the avoidance of doubt, it is agreed that MERCK MSD shall have no the first right to initiate and prosecute such legal actions for MSD Patents and Joint Patents at its own expense. If NEUROGEN elects not to initiate and prosecute an action as provided in Section 8.5(a), and MSD elects to do so, the cost of any agreed upon course of action to terminate infringement of NEUROGEN Patents including the costs of any legal action commenced or prosecute any action or control the defense of any declaratory judgment action with respect to any ALNYLAM RNAi Patent Right or misuse or misappropriation of ALNYLAM RNAi Technologyjudgment, shall be borne by MSD exclusively. ALNYLAM agrees that, in the event a Therapeutic Collaboration Product becomes subject to a MERCK Product Agreement, and an ALNYLAM RNAi Patent Right is infringed by a Third Party by the sale of a therapeutic product using RNA interference against the same MERCK RNAi Novel Target as such Therapeutic Collaboration Product (a "COMPETING RNAi PRODUCT") then if (a) there is no patent right Controlled by MERCK and no Joint Collaboration Patent Right that can be asserted against the alleged infringement, and (b) ALNYLAM does not assert at least one ALNYLAM RNAi Patent Right against such alleged infringement, then MERCK's license to such Therapeutic Collaboration Product will become royalty-free in countries in which the Competing RNAi Product is sold, for as long as such Competing RNAi Product is being sold in such country. The foregoing provision will be reflected in each MERCK Product Agreement. With respect to For any action to terminate any infringement of Patents, if either Party is unable to initiate or defense provided for prosecute such action solely in this paragraph (a)its own name or if desired to obtain a more effective remedy, ALNYLAM the other Party will join such action voluntarily and will execute all documents necessary to initiate litigation to prosecute and maintain such action. In connection with any such action, MSD and NEUROGEN will cooperate fully and will provide each other with any information or assistance that either reasonably requests. Each Party shall not admit keep the invalidity other informed of developments in any such action or unenforceability proceeding, including, to the extent permissible by law, the consultation and approval of any MERCK RNAi Patent Rightsoffer related thereto. Any recovery obtained by either or both MSD and NEUROGEN in connection with or as a result of any action contemplated by this Section, MERCK RNAi Novel Target IP whether by settlement or Joint Collaboration Patent Rights without otherwise, shall be shared in order as follows: (i) the prior written consent Party which initiated and prosecuted the action shall recoup all of MERCK.its costs and expenses incurred in connection with the action; (ii) the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and