Licensee’s Participation. In exercising its rights pursuant to Section 10.4 of this Agreement, Licensor shall have the sole and exclusive right to select counsel and shall, except as provided herein, pay all expenses of the suit including without limitation attorneys' fees and court costs. Licensee, in its sole discretion, may elect, within sixty (60) days after the commencement of such litigation, to contribute fifty percent (50%) of the costs incurred by Licensor in connection with such litigation and, if it so elects, any damages, royalties, settlement fees or other consideration received by Licensor for past infringement or misappropriation as a result of such litigation shall be shared by Licensee and Licensor pro rata based on their respective sharing of the costs of such litigation. In the event that Licensee elects not to contribute to the costs of such litigation, Licensor shall be entitled to retain any damages, royalties, settlement fees or other consideration resulting therefrom. If necessary, Licensee shall join as a party to the suit but shall be under no obligation to participate except to the extent that such participation is required as a result of being a named party to the suit. At Licensor's request, Licensee shall offer reasonable assistance to Licensor in connection therewith at no charge to Licensor except for reimbursement of reasonable out-of-pocket expenses incurred in rendering such assistance. Licensee shall have the right to participate and be represented in any such suit by its own counsel at its own expense. Licensor shall not settle any such suit involving rights of Licensee without obtaining the prior written consent of Licensee, which consent shall not be unreasonably withheld.
Licensee’s Participation. Licensee’s patent counsel shall be given a reasonable opportunity to comment, at Licensee’s expense, on all proposed patent filings (“Filings”) and responses (“Responses”) to patent office actions or other patent office communications that may affect the Patent Rights or Licensee’s rights and obligations hereunder either directly or in combination with any response thereto (collectively, “Office Communications”) with respect to the Patent Rights. In the case of Filings, and in the case of Office Communications to which TXG must respond in a period of time equal to or exceeding sixty (60) days (excluding extensions), TXG shall deliver copies of its proposed Filings or Response to Licensee not later than fifteen (15) business days prior to the patent office deadline (excluding extensions) for such Filing or Response. TXG will not unreasonably refuse to accept any suggestions of Licensee’s patent counsel regarding such Filing or Response, provided that Licensee’s patent counsel provides such comments to TXG’s patent counsel not less than five (5) days prior to the patent office deadline (excluding extensions) for such Filing or Response; provided, however, that TXG will have the final decision on the incorporation of any comments in such Filing or Response. In the case of Office Communications to which TXG must respond in less than sixty (60) days (including any extensions), TXG shall deliver copies of its proposed Response to Licensee not later than ten (10) days prior to the patent office deadline, and TXG will not unreasonably refuse to accept any suggestions of Licensee’s patent counsel regarding such Response, provided that Licensee’s patent counsel provides such comments to TXG’s patent counsel not less than five (5) days prior to the final patent office deadline for such Response. In any event, TXG will provide Licensee with copies of all Office Communications relating to the Patent Rights reasonably promptly after TXG’s receipt thereof, but in any event within five (5) business days of receipt. Where TXG fails to forward Office Communications within the time frame indicated, TXG shall use reasonable commercial best efforts and own expense to obtain an extension of time to file the Office Communication so as to provide Licensee fifteen (15) business days to review and comment on such Office Communication prior to filing. TXG agrees to use reasonable commercial efforts to prosecute U.S. patents covering the inventions disclosed in 10/798,061 and 10/969,...
