Common use of Invalidity or Unenforceability Defenses or Actions Clause in Contracts

Invalidity or Unenforceability Defenses or Actions. (a) In the event that a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.3.1, that any Product Trademark, GPC Biotech Patent, Licensee Patent or Joint 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 Product Trademarks, GPC Biotech Patents and the Joint Patents, subject to the Spectrum Agreement, GPC Biotech shall have the first right, but not the obligation, through counsel of its choosing, to respond to such defense or defend against such counterclaim (as applicable) and, if Licensee is pursuing the applicable infringement action under Section 8.3.1, Licensee shall allow GPC Biotech to control such response or defense (as applicable). With respect to the Licensee Patents Licensee shall have the first right, but not the obligation, through counsel of its choosing, to respond to such defense or defend against such counterclaim (as applicable) and, if GPC Biotech is pursuing the applicable infringement action under Section 8.3.1, GPC Biotech shall allow Licensee 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 determines not to respond to such defense or defend against such counterclaim (as applicable), the other Party shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that such other Party shall obtain the written consent of GPC Biotech, with respect to the GPC Biotech Patents and the Joint Patents, or Licensee, with respect to the Licensee Patents, prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed.

Invalidity or Unenforceability Defenses or Actions. (a) In the event that a Third Party or Sublicensee asserts, as a defense or as a counterclaim in any infringement action under Section 8.3.17.3.1, that any Product Trademark, GPC Biotech Patent, Licensee Yakult Patent or Joint 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 Product Trademarks, GPC Biotech Patents and the Joint Patents, subject to as between the Spectrum AgreementParties, GPC Biotech shall have the first right, but not the obligation, through counsel of its choosing, to respond to such defense or defend against such counterclaim (as applicable) and, if Licensee Yakult is pursuing the applicable infringement action under Section 8.3.17.3.1, Licensee Yakult shall allow GPC Biotech to control such response or defense (as applicable). If GPC Biotech determines not to respond to such defense or defend against such counterclaim (as applicable) with respect to the Product Trademarks, GPC Biotech Patents or Joint Patents in Japan, then Yakult shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such defense or counterclaim is likely or could reasonably be expected to have a material impact in the GPC Biotech Territory, Yakult shall obtain the written consent of GPC Biotech prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed. With respect to the Licensee Patents Licensee Yakult Patents, as between the Parties, Yakult shall have the first right, but not the obligation, through counsel of its choosing, to respond to such defense or defend against such counterclaim (as applicable) and, if GPC Biotech is pursuing the applicable infringement action under Section 8.3.17.3.1, GPC Biotech shall allow Licensee Yakult 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 Yakult determines not to respond to such defense or defend against such counterclaim (as applicable)) with respect to the Yakult Patents in the Territory, the other Party then GPC Biotech shall, at its sole cost and expense, have the right to respond to such defense or defend against such counterclaim (as applicable); provided, however, that to the extent that ceasing to defend, settling or otherwise compromising such other Party defense or counterclaim is likely or could reasonably be expected to have a material impact in Japan, GPC Biotech shall obtain the written consent of GPC Biotech, with respect to the GPC Biotech Patents and the Joint Patents, or Licensee, with respect to the Licensee Patents, Yakult prior to ceasing to defend, settling or otherwise compromising such defense or counterclaim, such consent not to be unreasonably withheld or delayed. 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.