Product Infringement. Upon threat of claim of infringement, Vendor may, at its expense and option (i) procure the right to continue using any part of Product, (ii) replace the infringing Product with a non-infringing Product of similar performance, or (iii) modify Product to make it non-infringing. If Vendor does not so act within ninety (90) days after such claim, Ingram may return Product to Vendor for a full credit against future purchases or for a cash refund, at Xxxxxx'x option.
Product Infringement. If either Party becomes aware of (i) any existing or threatened infringement or misappropriation by a Third Party of any Joint Inhaled Collaboration Know-How or Joint Inhaled Collaboration Patents, or any Liquidia Patents or Liquidia Know-How, which infringement or misappropriation of such Liquidia Patents or Liquidia Know-How adversely affects or is reasonably expected to adversely affect any Research Product or Product, or (ii) the submission by any Third Party of an application to the FDA, in accordance with the Xxxxx-Xxxxxx Act or the Biologics Price Competition and Innovation Act of 2009, for approval of a product that such Third Party claims to be equivalent to, or biosimilar or interchangeable with a Product (in either case of (i) or (ii), a “Product Infringement”), then it shall promptly notify the other Party in writing and the Parties will consult with each other regarding any actions to be taken with respect to such Product Infringement.
Product Infringement. If GSK fails to commence an Action to enforce the applicable Joint Inhaled Collaboration Patents or to settle or otherwise secure the abatement of such Product Infringement within such period, then Liquidia shall have the right, but not the obligation, to commence an Action to enforce such Joint Inhaled Collaboration Patents at its own cost and expense. GSK shall take reasonably appropriate actions to enable Liquidia to commence an Action as set forth in the preceding sentence.
Product Infringement. In the event that either Party or any of its Affiliates becomes aware of an actual or suspected infringement or misappropriation by a Third Party of (i) [***] or (ii) [***] (collectively (i) and (ii), “Product Infringement”), the Party that became aware of the Product Infringement shall promptly notify the other Party in writing of this actual or suspected infringement and shall provide such other Party with all available evidence in such Party’s possession (and that is not subject to a binding contractual confidentiality obligation to a Third Party)supporting such actual or suspected infringement.
Product Infringement. (i) For any Product Infringement, Spectrum shall have the first right, but not the obligation, to bring an appropriate suit or other action against any person or entity engaged in such Product Infringement. If Spectrum fails to institute and prosecute an action or proceeding to xxxxx the Product Infringement within a period of [***] ([***]) days (a) after the first notice under Section 12.3(a) or (b) of otherwise having knowledge of the Product Infringement, then CyDex shall have the right, but not the obligation, to commence a suit or take action to enforce the applicable Licensed Product Patent against such third Party perpetrating such Product Infringement at its own cost and expense. In this case, Spectrum shall take appropriate actions in order to enable CyDex to commence a suit or take the actions set forth in the preceding sentence.
Product Infringement. (i) For any Product Infringement, MDCO shall have the first right, but not the obligation, to bring an appropriate suit or other action against any person or entity engaged in such Product Infringement. If MDCO fails to institute and prosecute an action or proceeding to xxxxx the Product Infringement within a period of [***] after the first notice under this section to elect to enforce the Licensed Product Patent or otherwise having knowledge of the Product Infringement, then CyDex shall have the right, but not the obligation, to commence a suit or take action to enforce the applicable Licensed Product Patent against such third Party perpetrating such Product Infringement at its own cost and expense. In this case, MDCO shall take appropriate actions in order to enable CyDex to commence a suit or take the actions set forth in the preceding sentence.
Product Infringement. (i) For any Product Infringement in the Sanofi Field, each Party shall share with the other Party all Confidential Information available to it regarding such alleged infringement. Sanofi shall have the first right, but not the obligation, to bring at its own cost and expense an appropriate suit or other action against any person or entity engaged in such Product Infringement in the Sanofi Field, subject to Section 9.5(b)(iii) through 9.5(b)(iv) below. If Sanofi fails to institute and prosecute an action or proceeding to xxxxx the Product Infringement in the Sanofi Field within a period of ninety (90) days after the first notice under 9.5(a) to elect to enforce such Sanofi Patent and/or KaloBios Patent or otherwise having knowledge of the Product Infringement in the Sanofi Field, then KaloBios shall have the right, but not the obligation, to commence a suit or take action to enforce the applicable Sanofi Patent and/or [***] CONFIDENTIAL PORTIONS OF THIS DOCUMENT REDACTED AND SEPARATELY FILED WITH THE COMMISSION. KaloBios Patent against such Third Party perpetrating such Product Infringement in the Sanofi Field in the Territory at its own cost and expense. In this case, Sanofi shall take appropriate actions in order to enable KaloBios to commence a suit or take the actions set forth in the preceding sentence.
Product Infringement. If any proceeding under Section 10.3(a) involves Patents or Patent Applications involved in a Product Infringement under Section 10.4, then notwithstanding the provisions of Section 10.3(a), any decisions on whether to initiate or how to CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. respond to such a proceeding, as applicable, and the course of action in such proceeding, shall be made by the Party controlling such Product Infringement action pursuant to Section 10.4 in consultation with the other Party [***].
Product Infringement. If a Party becomes aware of any actual or potential Claim alleging that the Research, Development, Manufacture, or Commercialization of any Compounds or Products under this Agreement infringes, misappropriates, or otherwise violates any Intellectual Property Rights of a Third Party (or would if carried out) ("Product Infringement"), then such Party will notify the other Party as promptly as possible following the receipt of service of process in such action, suit, or proceeding, or the date on which such Party becomes aware that such action, suit, or proceeding has been instituted, and the Parties will meet as soon as possible to discuss the overall strategy for defense of such matter. NVS shall have the first right (but not the obligation) to defend any Claims of Product Infringement relating to a Compound or Product; provided however, that if either Party has an obligation to indemnify the other Party with respect to such Claim, then the provisions of Article 17 will apply with respect thereto. Pliant may participate in any such action, suit or proceeding with counsel of its choice at its own expense.
Product Infringement. In the event a Party’s Patents are infringed by the commercialization of the Product in the Field by a Third Party in the other Party’s Territory, such Party shall make reasonable efforts to stop such infringement in the other Party’s Territory to protect the commercialization of the Product in the Field by the other Party or its sublicensees in the other Party’s Territory. If such Party fails to institute and prosecute an action or proceeding to remove such infringement without delay, then the other Party shall have the right, but not the obligation to, commence a suit or take action to enforce the applicable Patents against such Third Party perpetrating such infringement in the other Party’s Territory at its own cost and expense. In this case, such Party shall take appropriate actions, if any, to enable the other Party to commence a suit or take the actions set forth in the preceding sentence.
