Common use of Infringement of Third Party Rights Clause in Contracts

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of RECEPTORS or LICENSEE pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Subject to the following sentence, RECEPTORS shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities at its own expense and by counsel of its own choice. If any Third Party claim alleges that the manufacture, use or sale of a LICENSED PRODUCT infringes such Third Party’s patent rights, then LICENSEE shall have the first right to control any defense of any such claim at its expense and by counsel of its own choice, and RECEPTORS shall have the right, at its own expense, to be represented in any such action by counsel of their own choice; provided that if LICENSEE does not defend against any such Third Party claim, then RECEPTORS may assume such defense at its expense and using counsel of its own choice, in which case RECEPTORS shall keep LICENSEE fully informed with regard to the defense of such Third Party claim. RECEPTORS shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities at its own expense and by counsel of its own choice. Neither RECEPTORS nor LICENSEE shall have the right to settle any patent infringement litigation under this §12.09 in a manner that diminishes the rights or interests of the other Party without first consulting the other Party.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party third party that the activity of either of RECEPTORS VeriTeQ or LICENSEE PositiveID pursuant to this Agreement infringes or may infringe the intellectual property rights of such third party (“Third PartyParty Claim”). Subject to the following sentence, RECEPTORS VeriTeQ shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights Claim by RECEPTORS’ VeriTeQ’s activities at its own expense and by counsel of its own choice. If any Third Party claim Claim alleges that the manufacture, use or sale of a LICENSED PRODUCT Licensed Product infringes such Third Partythird party’s patent rights, then LICENSEE PositiveID shall have the first right to control any defense of any such claim at its expense and by counsel of its own choice, and RECEPTORS VeriTeQ shall have the right, at its own expense, to be represented in any such action by counsel of their own choice; provided that if LICENSEE PositiveID does not defend against any such Third Party claimClaim, then RECEPTORS VeriTeQ may assume such defense at its expense and using counsel of its own choice, in which case RECEPTORS VeriTeQ shall keep LICENSEE PositiveID fully informed with regard to the defense of such Third Party claimClaim. RECEPTORS VeriTeQ shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights Claim by RECEPTORS’ VeriTeQ’s activities at its own expense and by counsel of its own choice. Neither RECEPTORS VeriTeQ nor LICENSEE PositiveID shall have the right to settle any patent infringement litigation under this §12.09 Section 5.3 in a manner that diminishes the rights or interests of the other Party without first consulting the other Party.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity activities of either of RECEPTORS or LICENSEE pursuant to Party contemplated by this Agreement infringes infringe or may infringe the intellectual property rights of such Third Party. Subject to the following sentence, RECEPTORS Xencor shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ Xencor’s activities at its own expense and by counsel of its own choice. If any Third Party claim alleges that the manufacture, use or sale of a LICENSED PRODUCT infringes such Third Party’s patent rights, then LICENSEE shall have the first right to control any defense of any such claim at its expense and by counsel of its own choice, and RECEPTORS INmune shall have the right, at its own expense, to be represented in any such action by counsel of their own choice; provided that if LICENSEE does not defend against any such Third Party claim, then RECEPTORS may assume such defense at its expense and using counsel of its own choice, in which case RECEPTORS shall keep LICENSEE fully informed with regard to the defense of such Third Party claim. RECEPTORS INmune shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ INmune’s activities (other than activities within the scope of the Prosecution and Maintenance of the Licensed Patent Rights or Product Patent Rights) at its own expense and by counsel of its own choice, and Xencor shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. Neither RECEPTORS nor LICENSEE Party shall have the right to settle any patent infringement litigation under this §12.09 Section 6.4 in a manner that diminishes the rights or interests of the other Party without first consulting the written consent of such other Party, which consent shall not be unreasonably withheld, conditioned or delayed.

Infringement of Third Party Rights. Each Party shall promptly notify If a Product made, used, offered for sale or sold by Licensee, its Affiliates or Sublicensees, the other in writing of any allegation by a Third Party that Licensor Technology and/or the activity of either of RECEPTORS or LICENSEE pursuant to this Agreement infringes or may infringe Licensee Technology becomes the intellectual property rights of such Third Party. Subject to the following sentence, RECEPTORS shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities at its own expense and by counsel of its own choice. If any Third Party claim alleges that the manufacture, use or sale subject of a LICENSED PRODUCT infringes such Third Party’s patent rights, then LICENSEE shall have claim or assertion of infringement of a Patent granted by a jurisdiction within the first right to control any defense of any Territory (each such claim at its expense or assertion a “Third Party Patent Claim”), Licensee will promptly notify Licensor and by counsel the Parties will work toward their shared, mutual interest in the outcome of its own choicesuch potential dispute, and RECEPTORS shall have thereafter, the right, at its own expense, Parties will promptly meet to be represented in any such action by counsel consider the Third Party Patent Claim and the appropriate course of their own choice; provided that if LICENSEE does not action. Licensee will defend against any such Third Party claimPatent Claim that pertains solely to patents that include claims directed to any Product; provided that the provisions of Section 9.4 govern the right of Licensee to assert a counterclaim of infringement of any Licensee Patent or any Licensor Patents. Notwithstanding the above, then RECEPTORS may assume Licensee shall not enter into any settlement of any Third Party Patent Claim without the prior written consent of Licensor if such defense at its expense and using counsel of its own choice, in which case RECEPTORS shall keep LICENSEE fully informed with regard settlement would require the Licensor to be subject to an injunction or to make any monetary payment to the defense Licensee or Third Party, or admit any wrongful conduct Licensor or its Affiliates, or would limit or restrict the claims of such Third Party claim. RECEPTORS shall have the sole right to control or admit any defense invalidity and/or unenforceability of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities at its own expense and by counsel of its own choice. Neither RECEPTORS nor LICENSEE shall have the right to settle any patent infringement litigation under this §12.09 in a manner that diminishes the rights or interests of the other Party Licensor Patents, without first consulting the other PartyLicensor’s prior written consent, which shall not be unreasonably withheld.

Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of RECEPTORS or LICENSEE the Parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Subject to Article 10, Vivus shall have the following sentencesole right to control any defense of any such claim *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, RECEPTORS AS AMENDED. involving alleged infringement of Third Party rights by Vivus’ activities at its own expense and by counsel of its own choice. Subject to Article 10, Sanofi shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities at its own expense and by counsel of its own choice. If any Third Party claim alleges that the manufacture, use or sale of a LICENSED PRODUCT infringes such Third PartySanofi’s patent rights, then LICENSEE shall have the first right to control any defense of any such claim at its expense and by counsel of its own choice, and RECEPTORS shall have the right, at its own expense, to be represented in any such action by counsel of their own choice; provided that if LICENSEE does not defend against any such Third Party claim, then RECEPTORS may assume such defense at its expense and using counsel of its own choice, in which case RECEPTORS shall keep LICENSEE fully informed with regard to the defense of such Third Party claim. RECEPTORS shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities at its own expense and by counsel of its own choice. Neither RECEPTORS nor LICENSEE Party shall have the right to settle any patent infringement litigation under this §12.09 Section 8.6 in a manner that diminishes the rights or interests of the other Party without first consulting the written consent of such other Partyparty (which shall not be unreasonably withheld).

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party third party that the activity of either of RECEPTORS PositiveID or LICENSEE Licensee pursuant to this Agreement infringes or may infringe the intellectual property rights of such third party (“Third PartyParty Claim”). Subject to the following sentence, RECEPTORS PositiveID shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights Claim by RECEPTORS’ PositiveID’s activities at its own expense and by counsel of its own choice. If any Third Party claim Claim alleges that the manufacture, use or sale of a LICENSED PRODUCT Licensed Product infringes such Third Partythird party’s patent rights, then LICENSEE Licensee shall have the first right to control any defense of any such claim at its expense and by counsel of its own choice, and RECEPTORS PositiveID shall have the right, at its own expense, to be represented in any such action by counsel of their own choice; provided that if LICENSEE Licensee does not defend against any such Third Party claimClaim, then RECEPTORS PositiveID may assume such defense at its expense and using counsel of its own choice, in which case RECEPTORS PositiveID shall keep LICENSEE Licensee fully informed with regard to the defense of such Third Party claimClaim. RECEPTORS PositiveID shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights Claim by RECEPTORS’ PositiveID’s activities at its own expense and by counsel of its own choice. Neither RECEPTORS PositiveID nor LICENSEE Licensee shall have the right to settle any patent infringement litigation under this §12.09 Section 7.3 in a manner that diminishes the rights or interests of the other Party party without first consulting the other Partyparty.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party THIRD PARTY that the activity of either of RECEPTORS or LICENSEE pursuant to this Agreement the parties hereunder infringes or may infringe the intellectual property rights of such Third PartyTHIRD PARTY. Subject to the following sentence, RECEPTORS ALLERGAN shall have the sole first right to control any defense of any such claim involving alleged infringement of Third Party THIRD PARTY rights by RECEPTORS’ ALLERGAN's activities at its own expense and by counsel of its own choice. If any Third Party claim alleges that the manufacture, use or sale of a LICENSED PRODUCT infringes such Third Party’s patent rights, then LICENSEE shall have the first right to control any defense of any such claim at its expense and under this AGREEMENT by counsel of its own choice, and RECEPTORS ALLERGAN may off-set * percent (*%) of such expenses against any payments or royalties due to ENTREMED hereunder, and ENTREMED shall have the right, at its own expense, to be represented in any such action by counsel of their own choice; provided that if LICENSEE does not defend against any such Third Party claim, then RECEPTORS may assume such defense at its expense and using counsel of its own choice, . If ALLERGAN fails to proceed in which case RECEPTORS shall keep LICENSEE fully informed a timely fashion with regard to the defense of such Third Party claim. RECEPTORS defense, ENTREMED shall have the sole right to control any such defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities at its own expense and by counsel of its own choice, and ALLERGAN shall have the right to be represented in any such action by counsel of its own choice at its own expense. Neither RECEPTORS nor LICENSEE party shall have the right to settle any patent infringement litigation under this §12.09 Section 8.4 in a manner that diminishes the rights or interests of the other Party party without first consulting the other Partyconsent of such party, such consent not to be unreasonably withheld.

Infringement of Third Party Rights. Each Party party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of RECEPTORS or LICENSEE the parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Subject Rechon shall, as a named party to the following sentenceinfringement allegation, RECEPTORS shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities of Rechon or its Affiliates or Sublicensees under this Agreement at its own expense and Rechon’s expense, by counsel of its own Rechon’s choice. If any Third Party claim alleges ; provided, however, that the manufacture, use or sale of a LICENSED PRODUCT infringes such Third Party’s patent rights, then LICENSEE shall have the first right to control any defense of any such claim at its expense and by counsel of its own choice, and RECEPTORS NovaDel shall have the right, at its own expense, to be represented in any such action by counsel of their own choice; provided that if LICENSEE does not defend against any such Third Party claim, then RECEPTORS may assume such defense at its expense and using counsel of its own choice, in which case RECEPTORS shall keep LICENSEE fully informed with regard to the defense of such Third Party claim. RECEPTORS NovaDel shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ NovaDel’s activities under this Agreement at NovaDel’s expense by counsel of NovaDel’s choice; provided, however, that Rechon shall have the right, at its own expense and expense, to be represented in any such action by counsel of its own choice. Notwithstanding the foregoing, any defense in any action to the extent there is an allegation or claim that a NovaDel Patent is invalid shall be subject to Section 5.3. Neither RECEPTORS nor LICENSEE party shall have the right to settle enter into any patent infringement litigation settlement or compromise with respect to any action under this §12.09 Section 5.4 in a manner that diminishes the rights or interests of the other Party party without first consulting the such other Partyparty’s prior consent, which consent shall not be unreasonably withheld or delayed.