Common use of Infringement Action Clause in Contracts

Infringement Action. The Purchaser shall have the initial right, but no obligation, to institute an infringement suit or take other appropriate action that it believes is reasonably required to protect the Licensed Patent Rights or the Product Intellectual Property from such Competitive Infringement. The Purchaser shall be permitted to act, or choose not to act, subject to its sole discretion, including, if it so chooses, taking no action with respect to Competitive Infringement or settling any such Competitive Infringement in its sole discretion. Subject to Section 3.4, the expenses of any suit or suits that the Purchaser elects to bring shall be paid for entirely by the Purchaser. If the Purchaser does not take action in the prosecution, prevention, or termination of any infringement suit and has not commenced negotiations with the infringer for the discontinuance of such infringement within forty-five (45) days (or longer if the Parties mutually agree) of becoming aware of such infringement, the Company may elect to do so. If the Company elects to bring suit against such infringer and the Purchaser is joined as a party in such suit (which it shall do if so requested by the Company), the Purchaser shall have the right to approve counsel selected by the Company to represent the Parties, which approval shall not be unreasonably withheld, conditioned or delayed. The expenses of such suit or suits that the Company elects to bring, including any reasonable out-of-pocket expenses of the Purchaser incurred in connection therewith, shall be paid for entirely by the Company. Neither Party shall compromise or settle any litigation in a manner that imposes any obligation on the other Party or that otherwise adversely impacts the development or commercialization of the Product, or the Licensed Patent Rights or the Product Intellectual Property without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed.

Infringement Action. The Purchaser Ventrus shall have the initial right, but no obligation, right to institute an infringement initiate a suit or take other appropriate action that it believes is reasonably required to protect the Licensed Patent Rights Licensor IP in the Field, including a defense to a claim of invalidity or unenforceability. Ventrus shall give Licensor advance notice of its intent to file any such suit or take any such action and the Product Intellectual Property from reasons therefor, and shall provide Licensor with an opportunity to make suggestions and comments regarding such Competitive Infringement. The Purchaser suit or action, and Licensor shall have the right, at its expense and using counsel of its choice, to participate in any such suit or action; provided, however, that Ventrus (through its counsel) shall, unless otherwise mutually agreed upon by the Parties, at all times be responsible for leading such suit or action and shall be permitted to actresponsible for determining, or choose not to act, subject to its sole discretion, including, if it so chooses, taking no action directing and executing the strategy with respect to Competitive Infringement or settling any such Competitive Infringement in its sole discretion. Subject to Section 3.4, the expenses of any suit or suits that the Purchaser elects to bring shall be paid for entirely by the Purchaser. If the Purchaser does not take action in the prosecution, prevention, or termination of any infringement suit and has not commenced negotiations with the infringer for the discontinuance of such infringement within forty-five (45) days (or longer if the Parties mutually agree) of becoming aware of such infringement, the Company may elect to do so. If the Company elects to bring suit against such infringer and the Purchaser is joined as a party in such suit (which it shall do if so requested by the Company), the Purchaser shall have the right to approve counsel selected by the Company to represent the Parties, which approval shall not be unreasonably withheld, conditioned or delayed. The expenses of such suit or suits that action. Thereafter, Ventrus shall keep Licensor promptly informed, and shall from time to time consult with Licensor regarding the Company elects to bringstatus of any such suit or action and shall promptly provide Licensor with copies of all material documents (e.g., including any reasonable out-of-pocket expenses complaints, answers, counterclaims, material motions, orders of the Purchaser incurred court, memoranda of law and legal briefs, interrogatory responses, depositions, material pre-trial filings, expert reports, affidavits filed in connection therewithcourt, shall be paid for entirely by the Company. Neither Party shall compromise or settle any litigation in a manner that imposes any obligation on the other Party or that otherwise adversely impacts the development or commercialization transcripts of the Producthearings and trial testimony, trial exhibits, and notices of appeal) filed in, or the Licensed Patent Rights otherwise relating to, such suit or the Product Intellectual Property action. In connection with any such proceeding, Ventrus shall not enter into any settlement without the prior written consent of the other PartyLicensor, which such consent shall not to be unreasonably withheld, conditioned withheld or delayed. If, after its receipt or delivery of notice thereof under Section 9.4(a), Ventrus (i) notifies Licensor that it will not bring any claim, suit, or action to prevent or axxxx such Infringement in the Field, or (ii) fails to commence a suit to prevent or axxxx such Infringement in the Field within one hundred and eighty (180) days, Licensor shall have the right, but not the obligation, to commence a suit or take action to prevent or axxxx such Infringement under the Licensor Patents, at its own cost and expense.

Infringement Action. The Purchaser If Licensor receives Licensee’s infringement notice under Section 8.2 of this Agreement and within a reasonable time thereafter Licensor is unsuccessful in eliminating the infringement, Licensor shall have the initial rightfirst right to bring, but at its own expense, an infringement action against any Third Party within a reasonable time no obligationlonger than three (3) months from the date of Licensee’s notice of an infringement under Section 8.2 of this Agreement, and to institute use Licensee’s name in connection therewith. If the infringement materially and adversely affects Licensee’s and its Affiliates’ market share relating to the AHPC Formulaid Product and Licensor waives its right to bring such an infringement action in writing to Licensee or has not eliminated such infringement or initiated an infringement suit or take other appropriate action that it believes is reasonably required to protect the Licensed Patent Rights or the Product Intellectual Property from such Competitive Infringement. The Purchaser shall be permitted to act, or choose not to act, subject to its sole discretion, including, if it so chooses, taking no action with respect to Competitive Infringement or settling any such Competitive Infringement in its sole discretion. Subject to Section 3.4, the expenses of any suit or suits that the Purchaser elects to bring shall be paid for entirely by the Purchaser. If the Purchaser does not take action in the prosecution, prevention, or termination of any infringement suit and has not commenced negotiations with the infringer for the discontinuance of such infringement within forty-five (455) days (or longer if months from the Parties mutually agree) date of becoming aware Licensee’s notice of such infringement, the Company may elect to do so. If the Company elects to bring suit against such infringer and the Purchaser is joined as a party Licensee, after notifying Licensor in such suit (which it shall do if so requested by the Company), the Purchaser shall have the right to approve counsel selected by the Company to represent the Parties, which approval shall not be unreasonably withheld, conditioned or delayed. The expenses of such suit or suits that the Company elects to bring, including any reasonable out-of-pocket expenses of the Purchaser incurred in connection therewithwriting, shall be paid entitled to bring such infringement action at its own expense. In the latter event, any sums recovered by Licensee in any such infringement action or in its settlement shall belong to Licensee; provided, however, that, for entirely by the Company. Neither Party shall compromise or settle purposes of Section 4.1 of this Agreement, any litigation in a manner that imposes any obligation on the other Party or that otherwise adversely impacts the development or commercialization damages attributable to loss of sales of the Product, AHPC Formulaid Product shall be considered an amount received by Licensee or an Affiliate from the Licensed Patent Rights or sale for value of *CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION the AHPC Formulaid Product Intellectual Property without in the prior written consent period(s) to which such damages relate and Royalties thereon shall be deemed timely remitted by Licensee to Licensor hereunder if remitted to Licensor within sixty (60) days of the other Partydate on which such damages are received by Licensee and, in the case of settlement, Licensee shall reasonably and in good faith determine the portion of the settlement that represents compensation for loss of sales of the AHPC Formulaid Product and such portion shall be treated as if such portion were damages attributable to loss of sales of the AHPC Formulaid Product. The party conducting such action shall have full control over its conduct, including settlement thereof. Regardless of which consent party brings the suit, Licensor and Licensee shall not be unreasonably withheld, conditioned or delayedassist one another and cooperate in any such litigation at the other’s request.