Common use of Third Party Infringement Clause in Contracts

Third Party Infringement. In the event there is infringement by a third party of any Biochrom patent for the Product (“Third Party Infringement”) and GE Healthcare becomes aware of such infringement, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare shall have the right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third party, and shall have the right to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare shall bear all expenses of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigation.

Third Party Infringement. In the event there is infringement by a it appears any third party infringes any patent comprised within the PATENTS OR IMPROVEMENT PATENTS, USSC shall notify LICENSOR in writing or, as the case may be, LICENSOR shall notify USSC in writing, and the parties shall discuss the possible courses of any Biochrom patent for the Product (“Third Party Infringement”) and GE Healthcare becomes aware of such infringementaction. USSC, GE Healthcare may give Biochrom upon written notice to that effectLICENSOR, including with such written notice evidence establishing shall have the primary right to initiate a prima facie case of legal action or proceeding for infringement against the unlicensed party or parties at USSC’s own cost and expense and for its own benefit. LICENSOR agrees to render reasonable assistance to USSC in any legal action or proceeding instituted by such third partyUSSC under this paragraph. Biochrom Furthermore, USSC shall bear all expenses keep LICENSOR informed of any suit legal action or proceeding brought by it based upon USSC pursuant to this Paragraph and provide LICENSOR the opportunity to participate in such infringement action or proceeding and any proposed settlement thereof; provided however, the final decision with regard to such action or proceeding or settlement shall be in USSC’s discretion. The right to xxx infringers accorded to USSC is limited to USSC and shall not belong to any sublicensee or AFFILIATE of USSC, although USSC shall retain the right to Join any AFFILIATE or sublicensee to any legal action or proceeding contemplated by this Paragraph. Notwithstanding the right of USSC to xxx patent infringers, this Agreement shall not be construed as assigning any proprietary rights in LICENSED PRODUCTS, LICENSED PROCESSES or TECHNICAL INFORMATION to USSC. USSC expressly acknowledges that LICENSOR retains full ownership of all damages proprietary rights in LICENSED PRODUCTS, LICENSED PROCESSES, and TECHNICAL INFORMATION, except as to such improvements as may be originated and owned by USSC or other monies awarded or received may be jointly originated and owned by LICENSOR and USSC. Any monetary recovery in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating any patent infringement lawsuits in action or proceeding brought by USSC for infringement of any PATENTS or IMPROVEMENT PATENTS, shall inure solely to the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”)benefit of USSC. Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes If there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel monetary recovery, LICENSOR shall be shared equally by reimbursed for its out of pocket expenses, excluding attorneys fees and expenses, in rendering assistance to USSC. In the parties. If Independent Patent Counsel determines event that there is USSC shall fail, within a reasonable likelihood period of success and by the 30th day six (6) months after such advice Biochrom has still not obtained a discontinuance receiving or issuing written notice of such infringement or brought suit against the third party infringer, then GE Healthcare shall have the right, but not the obligationan apparent infringement, to bring suit against initiate a legal action or proceeding or to commence settlement negotiations with respect to such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third partyapparent infringement, and LICENSOR shall have the right but not the obligation to consult with GE Healthcare initiate a legal action or proceeding for infringement against the unlicensed party or parties at LICENSOR’s own cost and expense. USSC agrees to render reasonable assistance to LICENSOR in any legal action or proceeding instituted by LICENSOR under this Paragraph. LICENSOR shall keep USSC informed of any legal action or proceeding brought by LICENSOR pursuant to this Paragraph and provide USSC the opportunity to participate in such action or proceeding and any proposed settlement thereof; provided however, the final decision with regard to such action or proceeding or settlement shall be represented in LICENSOR’s discretion. Any monetary recovery in any such action or proceeding brought by independent counsel in such litigation at its own expense. GE Healthcare LICENSOR for infringement of any PATENTS or IMPROVEMENT PATENTS shall bear all expenses of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigation.inure solely to the benefit

Third Party Infringement. In the event there If any Program Patent Right is infringement ------------------------ infringed by a third party of any Biochrom patent for Third Party, the Product (“Third Party Infringement”) and GE Healthcare becomes aware of such infringement, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance this Agreement first having knowledge of such infringement or brought suit against shall promptly notify the third party infringerother in writing, then which notice shall set forth the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance facts of such infringement or brought suit against the third party infringer, then GE Healthcare in reasonable detail. Albany shall have the primary right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third partyinstitute, prosecute, and control any action or proceeding with respect to such infringement of its Program Patent Rights, by counsel of its own choice, and Lilly shall have the right, at its own expense, to be represented in such action by counsel of its own choice. Lilly shall have the primary right, but not the obligation, to institute, prosecute, and control any action or proceeding with respect to such infringement of the jointly owned Program Patent Rights, by counsel of its own choice, and Albany shall have the right, at its own expense, to be represented in such action by counsel of its own choice. If the Party having the primary right to institute, prosecute, and control any action or proceeding with respect to such infringement of a Program Patent Rights (the "Initial Controlling Party") shall fail to bring such action or proceeding within a period of one hundred twenty (120) days after receiving written notice from the other Party or otherwise having knowledge of such CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH ASTERISKS. infringement, the other Party shall have the right to consult with GE Healthcare bring and to participate in control any such action by counsel of it's own choice, and be represented by independent counsel in such litigation the Initial Controlling Party shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. GE Healthcare shall bear all If one Party brings any such action or proceeding, the other Party agrees, if necessary, to be joined as a party plaintiff and to give the first Party reasonable assistance and authority to file and to prosecute such suit. The costs and expenses of such suit, and all suits brought by either Party under this Section 7.8 shall retain be reimbursed on a pro-rata basis to both parties out of any damages or other monies awarded monetary awards recovered therein in favor of Albany and/or Lilly. Any remaining damages shall then belong to the Party bringing and prosecuting such action or received in consequence proceeding. No settlement or consent judgment or other voluntary final disposition of such litigationa suit under this Section 7.8 may be entered into without the joint consent of Albany and Lilly (which consent shall not be withheld unreasonably).

Third Party Infringement. In If any patent in the event there MEGABIOS ------------- ------------------------- Patent Rights in the Field is infringement infringed by a third party, the party of any Biochrom patent for the Product (“Third Party Infringement”) and GE Healthcare becomes aware of such infringement, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance this Agreement first having knowledge of such infringement or brought suit against shall promptly notify the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience other in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringementwriting. The cost notice shall set forth the facts of Independent Patent Counsel shall be shared equally by the partiesthat infringement in reasonable detail. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare MEGABIOS shall have the primary right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third partyinstitute, prosecute, and control any action or proceeding with respect to such infringement of the MEGABIOS Patent Rights, by counsel of its own choice, and LILLY shall have the right, at its own expense, to be represented in that action by counsel of its own choice. IF MEGABIOS fails to bring an action or proceeding within a period of one hundred twenty (120) days after receiving written notice from LILLY or otherwise having knowledge of that infringement, LILLY shall have the right to consult with GE Healthcare bring and control any such action by counsel of its own choice, and MEGABIOS shall have the right to participate in and be represented in any such action by independent counsel in such litigation of its own choice at its own expense. GE Healthcare [ * ] Certain information on this page has been omitted and filed separately with the Commission. Confidential Treatment has been requested with respect to the omitted portions. If one party brings any such action or proceeding, the second party agrees to be joined as a party plaintiff and to give the first party reasonable assistance and authority to file and prosecute the suit. The costs and expenses (including reasonable attorney's fees) of all suits brought by MEGABIOS or LILLY under this Section shall bear all expenses be reimbursed on a pro-rata basis to both parties out of such suit, and shall retain any damages or other monies awarded monetary awards recovered therein in favor of MEGABIOS and/or LILLY. Any remaining damages shall split [ * ] to the party initiating and prosecuting the action to completion and [ * ] to the other party. No settlement or received in consequence consent judgment or other voluntary final disposition of such litigationa suit under this Section may be entered into without the joint consent of MEGABIOS and LILLY (which consent shall not be withheld unreasonably). Notwithstanding anything to the contrary herein, this Section 11.4 shall not apply to the extent it is inconsistent with the License Agreement dated May 9, 1996 between MEGABIOS and UC.

Third Party Infringement. In the event there is infringement by a third party of any Biochrom patent for the Product (“Third Party Infringement”) and GE Healthcare LICENSEE or LICENSOR becomes aware of any actual or threatened infringement of the PATENTS with respect to the LICENSED PRODUCTS, that party shall promptly notify the other and the parties shall discuss the most appropriate action to take. Both parties shall use their reasonable efforts in cooperating with each other to terminate such infringement without litigation. LICENSEE, as exclusive licensee, shall have power to institute and prosecute at its own expense suits for infringement (past, current and future) of the PATENTS within the LICENSED TERRITORY and the FIELD OF USE, and, if required by law, LICENSOR will join as a party plaintiff in such suits. This power includes the power to recover all damages awarded in consequence of the infringement. All expenses in such suits brought by LICENSEE will be borne entirely by LICENSEE, GE Healthcare may give Biochrom written notice and LICENSEE will pay to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses LICENSOR [***] of any suit brought excess of recoveries, damages and awards over litigation expenses not previously reimbursed by it based upon the defendant or insurance in such infringement and suits. In this event, LICENSOR shall retain all damages or other monies awarded or received cooperate with LICENSEE in settlement of such the suit. If, after the expiration of ninety Within one hundred twenty (90120) days from after the date of such noticenotification of infringement, Biochrom has not obtained a discontinuance of if attempts to xxxxx such infringement are unsuccessful, or brought if LICENSEE elects not to or fails to institute or prosecute any suit against to enjoin or recover damages from any infringer, then LICENSOR alone may, in its sole discretion and at its expense, initiate and conduct an infringement action and keep any settlement or award which may be obtained. In this event, LICENSEE shall cooperate with LICENSOR in the suit. LICENSEE and LICENSOR agree that neither will settle any action commenced by it under this Section 11.05 in a manner that is materially prejudicial to any PATENT or to the other party's interests under this License Agreement without the other party's prior written approval. The parties recognize that LICENSOR may also license some of the PATENTS to third party infringerparties for other than the FIELD OF USE licensed to LICENSEE under this License Agreement; and if that does occur and there are infringement actions which affect both LICENSEE and said third party, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines agree that there is a reasonable likelihood will be cooperation between LICENSOR, LICENSEE and said third party(ies) regarding the handling of success the infringement claim and by an equitable allocation of any settlement or award based upon the 30th day after such advice Biochrom has still not obtained a discontinuance relative rights and contributions of such infringement or brought suit against LICENSOR, LICENSEE and the third party infringer, then GE Healthcare shall have the right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third party, and shall have the right to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare shall bear all expenses of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigationparty(ies).

Third Party Infringement. In the event there If any patent obtained by Neurocrine for Existing Neurocrine Technology, Project Technology, an Existing Neurocrine Compound or a New Compound which is infringement a Neurocrine Compound is infringed by a third party, the party to this Agreement first having knowledge of any Biochrom patent for * Certain information on this page has been omitted and filed separately with the Product (“Third Party Infringement”) and GE Healthcare becomes aware of such infringement, GE Healthcare may give Biochrom written notice Commission. Confidential treatment has been requested with respect to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third partythe omitted portions. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or promptly notify the other monies awarded or received in settlement of such suit. Ifwriting, after which notice shall set forth the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance facts of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”)reasonable detail. Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare Neurocrine shall have the primary right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third partyinstitute, prosecute, and control any action or proceeding with respect to such infringement of its Patent Rights, by counsel of its own choice, and Lilly shall have the right, at its own expense, to be represented in such action by counsel of its own choice. If Neurocrine shall fail to bring such action or proceeding within a period of one hundred twenty (120) days after receiving written notice from Lilly or otherwise having knowledge of such infringement, Lilly shall have the right to consult with GE Healthcare bring and to participate in control any such action by counsel of Lilly's own choice, and be represented by independent counsel in such litigation Neurocrine shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. GE Healthcare shall bear all If one party brings any such action or proceeding, the second party agrees, if necessary, to be joined as a party plaintiff and to give the first party reasonable assistance and authority to file and to prosecute such suit. The costs and expenses of such suit, and all suits brought by either party under this Section 13.4 shall retain be reimbursed on a pro-rata basis to both parties out of any damages or other monies awarded monetary awards recovered therein in favor of Neurocrine and/or Lilly. Any remaining damages shall then belong to the party bringing and prosecuting such action or received in consequence proceeding. No settlement or consent judgment or other voluntary final disposition of such litigationa suit under this Section 13.4 may be entered into without the joint consent of Neurocrine and Lilly (which consent shall not be withheld unreasonably).

Third Party Infringement. In the event there is infringement by a third (a) If either party of any Biochrom patent for the Product (“Third Party Infringement”) and GE Healthcare becomes aware of a substantial (annual sales greater than five percent (5%) of Licensee's annual sales of Licensed Products within a given jurisdiction (the "Subject Territory")) infringement of the Licensed Patent Rights by a Third Party in any country, such infringementparty shall promptly advise the other of the relevant facts and circumstances known in connection therewith and, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie in the case of an infringement by such third partyof Licensed Patent Rights, Licensee and LMT shall confer and attempt to agree on what action should be taken. Biochrom shall bear all expenses of any Should LMT and Licensee agree that suit should be brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare shall have the right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third partycountry, and LMT shall have the right to consult with GE Healthcare control, bear the cost of, and to participate in retain any recovery from any such suit arising out of an infringement of Licensed Patent Rights and be represented by independent counsel in such litigation Licensee, at its own expense, shall reasonably cooperate in the effort and any recovery from such suit, less Licensor’s costs and expenses, shall be deemed “Net Sales” for which Reverse Running Royalties shall be calculated and payable to Licensee. GE Healthcare If such infringement occurs in any country in which Licensee has the exclusive license granted in Article 2, and, if Licensor shall fail, within six (6) months after receiving notice from Licensee of a substantial infringement of Licensed Patent Rights, either; (i) to terminate such infringement; or (ii) to institute an action to prevent continuation thereof and, thereafter, to prosecute such action diligently, then Licensee shall have the option to do so, in which case Licensee shall control, bear all expenses the cost of such suit, and Licensor at its sole cost and expense, shall retain reasonably cooperate in the effort, e.g. if necessary, Licensor shall become a named party, and any damages or other monies awarded or received recovery from such suit, less Licensee’s costs and expenses, shall be deemed “Net Sales” for which Running Royalties shall be calculated and payable to Licensor. Should Licensee provide Licensor with reasonable evidence of substantial patent infringement in consequence any country in which Licensee has the exclusive license granted in ARTICLE 2 and the parties are unsuccessful in abating the infringement within the Abatement Period after Licensor has promptly notified the infringer of the infringement, and should Licensor have failed to file suit for infringement at the end of such litigationAbatement Period (or before Licensee has instituted suit under Section 5.01(b)), Licensee shall pay a reduced royalty rate in such country for Net Sales, in an amount of two-thirds of the royalty rate defined herein. Said reduced royalty rate shall continue to be the prevailing royalty rate until said substantial infringement ceases and, thereafter, the royalty rate shall revert to the full royalty rate defined herein. For the purposes of this Section 5.01, the Abatement Period, with respect to infringement occurring in the countries of Asia (as defined herein), Canada and the United States, shall be one hundred eighty (180) days and, for all other countries, two hundred seventy (270) days. The parties recognize that the prior sentence provides abatement periods for countries outside the scope of this License, such periods are provided in case Licensee hereafter acquires the right to distribute Licensed Products in any of such countries.

Third Party Infringement. In CYBERKINETICS and EMORY shall each promptly notify the event there is infringement by a third party other in writing of any Biochrom patent alleged or threatened infringement or claim of invalidity (hereinafter "Infringement") of which they become aware of patents included in the Licensed Patents, and the parties shall consult concerning the action to be taken. CYBERKINETICS shall have the right, but not the obligation, to prosecute or defend at its own expense any such Infringement. In such event, CYBERKINETICS shall have the right, if EMORY is a legally indispensable party, to bring such suit or action in the name of EMORY. CYBERKINETICS shall pay, on behalf of and instead of EMORY, any order for costs that may be made against EMORY by reason of it being joined as a party plaintiff in such proceedings by CYBERKINETICS, provided that EMORY will not be obligated to reimburse CYBERKINETICS for any costs so paid by CYBERKINETICS. CYBERKINETICS shall have sole control of any such suit or action and all negotiations for its settlement or compromise; provided, however, that CYBERKINETICS shall not settle or compromise any such suit or action or enter into any consent order for the Product settlement or compromise thereof that adversely affects any rights of EMORY hereunder without the prior written consent of EMORY, not to be unreasonably withheld. If, within sixty (“Third Party Infringement”60) and GE Healthcare days after CYBERKINETICS first becomes aware of any Infringement of the Licensed Patents, CYBERKINETICS fails to cause such infringementInfringement to terminate or to bring a suit or action to compel termination, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare EMORY shall have the right, but not the obligation, to bring such suit or action to compel termination at the sole expense of EMORY. In such event, EMORY shall have the right, if CYBERKINETICS is a legally indispensable party, to bring such suit or action in the name of CYBERKINETICS. EMORY shall hold pay, on behalf of and instead of CYBERKINETICS, any order for costs that may be made against CYBERKINETICS by reason of it being joined as a party plaintiff in such infringerproceedings by EMORY, provided that CYBERKINETICS will not be obligated to reimburse EMORY for any costs so paid by EMORY. Biochrom will cooperate with GE Healthcare in EMORY shall have sole control of any such suit or action and all negotiations for infringement brought by GE Healthcare against its settlement or compromise; provided, however, that EMORY shall not settle or compromise any such third partysuit or action or enter into any consent order for the settlement or compromise thereof that adversely affects any rights of CYBERKINETICS hereunder without the prior written consent of CYBERKINETICS, and shall have not to be unreasonably withheld. *** Information redacted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the right to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare shall bear all expenses of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigationCommission.

Third Party Infringement. In the event there is of infringement of any CCSI U.S. Patent on the Device or on the Calibration Standard by a third third-party whose infringing sales in the Targeted Markets within the Territory for use in monitoring newborn bilirubinemia (infant jaundice) constitute or, in the good faith judgment of the parties and as agreed to by them, highly probably will constitute [*] or more on an annualized basis of DO's total annual sales of these Products in the Targeted Markets within the Territory: (a) CCSI and DO shall jointly bring and actively prosecute a civil action against the infringing third-party; or, at DO's election made before the bringing of any Biochrom patent civil action and made within thirty (30) days of receiving notice of CCSI's intent to file such an action, (b) CCSI shall bring a civil action in CCSI's name alone or in the name of both CCSI and DO against the infringing third-party and DO shall assign to CCSI DO's right to xxx for the Product (“Third Party Infringement”) and GE Healthcare becomes aware of recover on DO's claims for past, present and future damages against that infringing third-party relating to such infringement, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom and CCSI shall bear all of the expenses of any suit brought such civil action and retain all of the monetary recovery in that civil action. If DO elects option (a) above, CCSI shall be responsible at its expense for and control the preparation and trial by it based upon such counsel of its choice of the patent liability issues of validity, enforceability and infringement and the damage issues of CCSI's damage claim and DO shall retain all damages or other monies awarded or received in settlement be responsible at its expense for and control the preparation and trial by counsel of such suit. If, after its choice of the expiration damage issues of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then DO's damage claim and the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits share in the United Statessum total of any monetary recovery, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party or settlement agreed to in good faith by both parties, in that action, after reimbursement of the expenses (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties other than internal costs) incurred in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally that action by the parties, with CCSI's share being [*] and DO's share being [*]. If Independent Patent Counsel determines that there is DO elects option (b) above, DO shall cooperate reasonably with CCSI in such action at CCSI's request and expense. Nothing herein shall preclude CCSI from brining a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare shall have the right, but not the obligation, to bring suit civil action against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third party, and shall have infringing third-party notwithstanding that the right to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare shall bear all expenses [*] or more percent of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigationannual sales requirement is not met.

Third Party Infringement. In CYBERKINETICS and EMORY shall each promptly notify the event there is infringement by a third party other in writing of any Biochrom patent alleged or threatened infringement or claim of invalidity (hereinafter "Infringement") of which they become aware of patents included in the Licensed Patents, and the parties shall consult concerning the action to be taken. CYBERKINETICS shall have the right, but not the obligation, to prosecute or defend at its own expense any such Infringement. In such event, CYBERKINETICS shall have the right, if EMORY is a legally indispensable party, to bring such suit or action in the name of EMORY. CYBERKINETICS shall pay, on behalf of and instead of EMORY, any order for costs that may be made against EMORY by reason of it being joined as a party plaintiff in such proceedings by CYBERKINETICS, provided that EMORY will not be obligated to reimburse CYBERKINETICS for any costs so paid by CYBERKINETICS. CYBERKINETICS shall have sole control of any such suit or action and all negotiations for its settlement or compromise; provided, however, that CYBERKINETICS shall not settle or compromise any such suit or action or enter into any consent order for the Product settlement or compromise thereof that adversely affects any rights of EMORY hereunder without the prior written consent of EMORY, not to be unreasonably withheld. If, within sixty (“Third Party Infringement”60) and GE Healthcare days after CYBERKINETICS first becomes aware of any Infringement of the Licensed Patents, CYBERKINETICS fails to cause such infringementInfringement to terminate or to bring a suit or action to compel termination, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare EMORY shall have the right, but not the obligation, to bring such suit or action to compel termination at the sole expense of EMORY. In such event, EMORY shall have the right, if CYBERKINETICS is a legally indispensable party, to bring such suit or action in the name of CYBERKINETICS. EMORY shall hold pay, on behalf of and instead of CYBERKINETICS, any order for costs that may be made against CYBERKINETICS by reason of it being joined as a party plaintiff in such infringerproceedings by EMORY, provided that CYBERKINETICS will not be obligated to reimburse EMORY for any costs so paid by EMORY. Biochrom will cooperate with GE Healthcare in EMORY shall have sole control of any such suit or action and all negotiations for infringement brought by GE Healthcare against its settlement or compromise; provided, however, that EMORY shall not settle or compromise any such third partysuit or action or enter into any consent order for the settlement or compromise thereof that adversely affects any rights of CYBERKINETICS hereunder without the prior written consent of CYBERKINETICS, and shall have the right not to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare shall bear all expenses of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigationunreasonably withheld.

Third Party Infringement. In Each party will promptly notify the event there is infringement by a third party of any Biochrom patent for the Product (“Third Party Infringement”) and GE Healthcare other if it becomes aware of acts of infringement or misappropriation of the Licensed Technology related to any Product by a Third Party which infringement bears adversely on MIMEDX’s enjoyment of the rights granted hereunder (“Commercially Relevant Infringement”). The Parties shall provide each other with all evidence or information relating to such infringementCommercially Relevant Infringement which is available to it and which it is legally able to disclose. MIMEDX shall have the initial right (but not the obligation) during the Term, GE Healthcare may give Biochrom at its own cost and expense, to institute and conduct legal action against third-party infringers of the Licensed Technology with respect to the Product, with counsel determined by MIMEDX. MIMEDX shall notify Turn within thirty (30) days of receiving written notice of Commercially Relevant Infringement as to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third partywhether it intends to commence any legal action. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of If no legal action is commenced within ninety (90) days from the date of such noticereceiving written notice of Commercially Relevant Infringement, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare shall have the right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third party, and Turn shall have the right to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation during the Term, at its own cost and expense, to institute and conduct legal action against third-party infringers of the Licensed Technology with respect to the Product, with counsel determined by Turn. GE Healthcare shall bear all expenses of such suitIn connection with any action to enforce any Licensed Technology, a Party will provide reasonable cooperation to the Party instituting and conducting legal action against third-party infringers (the “Enforcing Party”) concerning factual matters including, for example, by becoming a named party in the litigation if reasonably required to maintain the action, answering discovery requests, and providing testimony at deposition and trial without charge to the Enforcing Party other than recovery of statutory witness fees and its actual reasonable out-of-pocket costs incurred in connection with providing such cooperation. Any and all recoveries from any suit or action instituted or prosecuted based on infringement of the Licensed Technology for the Product shall retain any damages first be distributed to reimburse each Party’s reasonable out-of-pocket costs and expenses incurred in connection with the suit or other monies awarded or received action. The remaining recoveries shall be shared ninety-ten percent (90%/10%) in consequence favor of such litigationMIMEDX if MIMEDX is the Enforcing Party, and on a fifty-fifty percent (50%/50%) basis if Turn is the Enforcing Party.

Third Party Infringement. In the event there is infringement by a third party of any Biochrom patent for the Product Synergetics Patent (“Third Party Infringement”) and GE Healthcare CODMAN becomes aware of such infringement, GE Healthcare may CODMAN shall give Biochrom Synergetics written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom Synergetics shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom Synergetics has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom Synergetics has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare CODMAN shall have the right, but not the obligation, to bring suit against such infringer. Biochrom Synergetics will cooperate with GE Healthcare CODMAN in any such suit for infringement brought by GE Healthcare CODMAN against such third party, and shall have the right to consult with GE Healthcare CODMAN and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare CODMAN shall bear all expenses of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigation.

Third Party Infringement. In (a) Each party will promptly notify the other in the event there is infringement by a third party of any Biochrom actual, potential or suspected infringement of a patent for under the Product (“Athersys Patent Rights by any Third Party Infringement”Party. Except as provided in Section 11.7(b) and GE Healthcare becomes aware of such infringement11.9, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare PFIZER shall have the sole right, but not the obligation, to bring suit against institute litigation in connection with any infringement of the Athersys Exclusive Patent Rights in the Field, and any such infringerlitigation shall be at PFIZER’s expense, subject to ATHERSYS’ obligation to indemnify PFIZER for such expenses pursuant to Section 17 (if any); provided that any recoveries resulting from such action relating to a claim of a Third Party infringement, after deducting PFIZER’s out of pocket expenses (including counsel fees and expenses) in pursuing such claim, will be deemed Net Sales. Biochrom will cooperate with GE Healthcare If required in order to establish standing, ATHERSYS, upon request of PFIZER, agrees to timely commence or join in any such suit for infringement brought by GE Healthcare against such third partylitigation, at PFIZER’s expense, and in any event to cooperate with PFIZER at PFIZER’s expense. The parties shall have the right to consult with GE Healthcare respect to potential strategies for terminating such alleged or threatened infringement without litigation and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare shall bear all expenses of such suitPFIZER may not enter into settlements, and shall retain any damages stipulated judgments or other monies awarded arrangements respecting such infringement without the prior written consent of ATHERSYS. No settlement, stipulated judgment or received in consequence other voluntary final disposition of a suit under this Section 11.7 may be undertaken by PFIZER without the consent of ATHERSYS if such litigationsettlement, stipulated judgment or other voluntary final disposition would require ATHERSYS to be subject to an injunction, admit wrong-doing, make a monetary payment or would otherwise materially adversely affect ATHERSYS’ rights under this Agreement or any of the Athersys Exclusive Patent Rights.

Third Party Infringement. In the event there is If either Party or any Affiliate thereof becomes aware of actual or threatened infringement by a third party Third Party of any Biochrom patent for the Product (“Third Party Infringement”) and GE Healthcare becomes aware of such infringement, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits Ramipril Patent anywhere in the United StatesTerritory, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”)that Party or Affiliate shall promptly notify the other Party in writing. Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare King shall have the first right, but not the obligation, to bring suit bring, [***], an infringement action against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third partyThird Party ("Action"), and to use Selamine and its Affiliate's name(s) as required in connection therewith and Selamine and its Affiliates hereby consents to jurisdiction and venue if King names Selamine or any Affiliate thereof as a party thereto. King shall have full control over the conduct of any Action, including settlement thereof. Selamine shall have the right to consult provide comments to King with GE Healthcare respect to any such Action, which King shall consider in good faith. King shall provide notice to Selamine prior to entering into any consent to entry of judgment or any settlement of any Action. If King does not commence a particular Action within [***] of receipt of the notice of infringement, then Selamine, after notifying King in writing, shall be entitled to bring such Action [***]. Selamine shall have full control over the conduct of such Action. King shall have the right to provide comments to Selamine with respect to any such Action, which Selamine shall consider in good faith. Selamine may not settle any Action without prior written notice to King. In any event, King and Selamine and their Affiliates shall assist one another and cooperate in any such Action at the other's request [***] the requesting Party, and the Party who is not in control of the Action, and its Affiliates, shall have the right to participate in and be represented by independent counsel in such litigation retain separate counsel, at its own expense. GE Healthcare The Parties shall bear all expenses each be entitled to recover [***] expenses, [***], associated with any litigation or settlement thereof from any recovery made by either Party. King shall thereafter be entitled to recover its lost profits with respect to infringing sales of [***], provided that King shall be obligated to pay to Selamine [***] with respect to such recovery for such sales as if King had made such sales itself. The remainder, if any, shall be shared by the parties, with Selamine receiving an amount [***] of such suit, remainder and shall retain any damages or other monies awarded or received in consequence of King receiving [***] such litigationremainder.

Third Party Infringement. In the event there is infringement by a third party IMDC or ATS becomes aware ------------------------ of any Biochrom patent for actual or threatened infringement of the Intellectual Property Rights with respect to the Product Categories, that party shall promptly notify the other and the parties shall discuss the most appropriate action to take. Both parties shall use their reasonable efforts in cooperating with each other to terminate such infringement without litigation. Within one hundred twenty (“Third Party Infringement”120) and GE Healthcare becomes aware days after the date of such notification of infringement, GE Healthcare may give Biochrom written notice if attempts to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon xxxxx such infringement and are unsuccessful, then IMDC may (but is not obligated to) bring such action at its own expense, in which event ATS shall retain all damages or other monies awarded or received cooperate with IMDC as reasonably requested, at IMDC's expense. ATS may (but is not obligated to), on its own initiative, join in settlement of such suit. IfAll recoveries, damages and awards in such suit, after reimbursement of all litigation expenses not previously reimbursed by the expiration defendant or insurance, shall be allocated [**] to IMDC and [**] to ATS. In the event that IMDC elects not to institute or prosecute any suit to enjoin or recover damages from any infringer, then ATS alone may (but is not obligated to), in its sole discretion and at its expense, initiate and conduct an infringement action and keep any settlement or award which may be obtained. IMDC and ATS agree that neither will settle any action commenced by it in a manner that is prejudicial to any ATS Intellectual Property Rights without the other party's prior written approval. The parties recognize that ATS may also license some of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such ATS Patents to third parties for other than those Product Categories licensed to IMDC under this Agreement; and if that does occur and there are infringement or brought suit against the actions which affect both IMDC and said third party infringerparty, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines agree that there is a reasonable likelihood will be cooperation between ATS, IMDC and said third party(ies) regarding the handling of success the infringement claim and by an equitable allocation of any settlement or award based upon the 30th day after such advice Biochrom has still not obtained a discontinuance relative rights and contributions of such infringement or brought suit against ATS, IMDC and the third party infringer, then GE Healthcare shall have the right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third party, and shall have the right to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare shall bear all expenses of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigationparty(ies).

Third Party Infringement. In Each party will promptly notify the other in the event there is infringement by a third party of any Biochrom actual, potential or suspected infringement of a patent for under the Product (“Celldex Patent Rights by any Third Party Infringement”) Party. As between Pfizer and GE Healthcare becomes aware of such infringementCelldex, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare Pfizer shall have the sole right, except as otherwise provided in this Section 7.8, but not the obligation, to bring suit against institute litigation or take other steps to remedy infringement in connection therewith, and any such infringerlitigation or steps shall be at Pfizer’s expense, subject to Celldex’s obligation to indemnify Pfizer for such expenses pursuant to Section 13; provided that any recoveries resulting from such litigation or steps relating to a claim of a Third Party infringement, after deducting Pfizer’s out of pocket expenses (including counsel fees and expenses) in pursuing such claim, will be deemed Net Sales. Biochrom will cooperate with GE Healthcare Pfizer shall not, without the prior written consent of Celldex, enter into any compromise or settlement relating to such litigation that admits the invalidity or unenforceability of any Celldex Patent Right, requires Pfizer to abandon any Celldex Patent Right or requires Celldex to pay any sum of money. In order to establish standing, Celldex, upon request of Pfizer, agrees to timely commence or to join in any such suit for infringement brought by GE Healthcare against such third partylitigation, at Pfizer’s expense, and shall in any event to cooperate with Pfizer in such litigation or steps at Pfizer’s expense. Celldex will have the right to consult with GE Healthcare Pfizer about such litigation and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare If Pfizer fails to institute such litigation or otherwise take steps to remedy the infringement of a Celldex Patent Right (a) within * of its receipt of notice thereof in the case of a Celldex Sole Patent Right, or (b) within * of its receipt or notice thereof in the case of a Celldex Controlled Patent Right, then Celldex shall bear all expenses of such suithave the right, and shall retain but no obligation, upon ten (10) days’ prior notice to Pfizer, at Celldex’s expense, to institute any damages or other monies awarded or received in consequence of such litigation; provided, however, that Celldex shall only have the foregoing right if Pfizer would not be required (by Law or otherwise) to join such litigation as a party and such litigation would not involve a patent covering a then-existing Licensed Product. Pfizer shall have no obligation to cooperate with Celldex in any such litigation. With respect to any such infringement action prosecuted in good faith by * pursuant to *, Pfizer shall pay over to Celldex any payments (whether or not designated as “royalties”) made by the alleged infringer to Pfizer under any existing or future sublicense authorizing Licensed Products, * (including, but not limited to, reasonable attorney’s fees).

Third Party Infringement. In CYBERKINETICS and EMORY shall each promptly notify the event there is infringement by a third party other in writing of any Biochrom patent alleged or threatened infringement or claim of invalidity (hereinafter "Infringement") of which they become aware of patents included in the Licensed Patents, and the parties shall consult concerning the action to be taken. CYBERKINETICS shall have the right, but not the obligation, to prosecute or defend at its own expense any such Infringement. In such event, CYBERKINETICS shall have the right, if EMORY is a legally indispensable party, to bring such suit or action in the name of EMORY. CYBERKINETICS shall pay, on behalf of and instead of EMORY, any order for costs that may be made against EMORY by reason of it being joined as a party plaintiff in such proceedings by CYBERKINETICS, provided that EMORY will not be obligated to reimburse CYBERKINETICS for any costs so paid by CYBERKINETICS. CYBERKINETICS shall have sole control of any such suit or action and all negotiations for its settlement or compromise; provided, however, that CYBERKINETICS shall not settle or compromise any such suit or action or enter into any consent order for the Product settlement or compromise thereof that adversely affects any rights of EMORY hereunder without the prior written consent of EMORY, not to be unreasonably withheld. If, within sixty (“Third Party Infringement”60) and GE Healthcare days after CYBERKINETICS first becomes aware of any Infringement of the Licensed Patents, CYBERKINETICS fails to cause such infringementInfringement to terminate or to bring a suit or action to compel termination, GE Healthcare may give Biochrom written notice to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon such infringement and shall retain all damages or other monies awarded or received in settlement of such suit. If, after the expiration of ninety (90) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against the third party infringer, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare EMORY shall have the right, but not the obligation, to bring such suit or action to compel termination at the sole expense of EMORY. In such event, EMORY shall have the right, if CYBERKINETICS is a legally indispensable party, to bring such suit or action in the name of CYBERKINETICS. EMORY shall hold pay, on behalf of and instead of CYBERKINETICS, any order for costs that may be made against *** Information redacted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. CYBERKINETICS by reason of it being joined as a party plaintiff in such infringerproceedings by EMORY, provided that CYBERKINETICS will not be obligated to reimburse EMORY for any costs so paid by EMORY. Biochrom will cooperate with GE Healthcare in EMORY shall have sole control of any such suit or action and all negotiations for infringement brought by GE Healthcare against its settlement or compromise; provided, however, that EMORY shall not settle or compromise any such third partysuit or action or enter into any consent order for the settlement or compromise thereof that adversely affects any rights of CYBERKINETICS hereunder without the prior written consent of CYBERKINETICS, and shall have the right not to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare shall bear all expenses of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigationunreasonably withheld.

Third Party Infringement. In the event there is infringement by a third party of any Biochrom patent for the Product (“Third Party Infringement”) and GE Healthcare IMDC or ATS becomes aware of such infringementany actual or threatened infringement of the Intellectual Property Rights with respect to the Product Categories, GE Healthcare may give Biochrom written notice that party shall promptly notify the other and the parties shall discuss the most appropriate action to that effect, including take. Both parties shall use their reasonable efforts in cooperating with such written notice evidence establishing a prima facie case of infringement by such third party. Biochrom shall bear all expenses of any suit brought by it based upon each other to terminate such infringement and shall retain all damages or other monies awarded or received in settlement of such suitwithout litigation. If, after the expiration of ninety Within one hundred twenty (90120) days from after the date of such noticenotification of infringement, Biochrom has not obtained a discontinuance of if attempts to xxxxx such infringement or brought suit against the third party infringerare unsuccessful, then the parties shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who IMDC may (but is a partner at a law firm with a nationally recognized intellectual property practice and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after obligated to) bring such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare shall have the right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare in any such suit for infringement brought by GE Healthcare against such third party, and shall have the right to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation action at its own expense. GE Healthcare in which event ATS shall bear all cooperate with IMDC as reasonably requested, at IMDC's expenses of ATS may (but is not obligated to), on its own initiative, join in such suit. All recoveries, damages and awards in such suit, after reimbursement of all litigation expenses not previously reimbursed by the defendant or insurance, shall be allocated [***] to IMDC and shall retain [***] to ATS. In the event that IMDC elects not to institute or prosecute any suit to enjoin or recover damages from any infringer, then ATS alone may (but is not obligated to), in its sole discretion and at its expense, initiate and conduct an infringement action and keep any settlement or award, which may be obtained. IMDC and ATS agree that neither will settle any action commenced by it in a manner that is prejudicial to any ATS Intellectual Property Rights without the other monies awarded party’s prior written approval. The parties recognize that ATS may also license some of the ATS Patents to third parties for other than those product Categories licensed to IMDC under this Agreement; and if that does occur and there are infringement actions which affect both IMDC under this Agreement; and if that does occur and there are infringement actions which affect both IMDC and said third party, then the parties agree that there will be cooperation between ATS, IMDC and said third party(ies) regarding the handling of the infringement claim and an equitable allocation of any settlement or received in consequence award based upon the relative rights and contributions of such litigationATS, IMDC and the third party(ies).

Third Party Infringement. In the event there is Licensor shall promptly report to Xxxxxx-Xxxx information that Licensor has regarding any known or suspected infringement by a any third party of any Biochrom patent claim in the Licensed Patents, Joint Improvement Patents and Xxxxx Improvement Patents (collectively, the “Patents”). Licensor will promptly provide all information and evidence available to support the known or suspected infringement. Xxxxxx-Xxxx has, in its sole discretion, the exclusive right to initiate and prosecute any suit for infringement of the Product (“Third Party Infringement”) Patents or other appropriate suit in its own name and GE Healthcare becomes aware on its own behalf anywhere worldwide against such a third party, at Xxxxxx-Xxxx’x expense. In lieu of such filing a lawsuit for any known or suspected infringement, GE Healthcare Xxxxxx-Xxxx may give Biochrom elect to negotiate with the known or suspected infringer for a settlement. Xxxxxx-Xxxx will keep Licensor apprised of the progress of any such suit or negotiation. Xxxxxx-Xxxx will not settle any such suit or negotiation without Licensor’s written notice consent, which shall not be unreasonably withheld; provided, however, that if such settlement would consist solely of the grant by Xxxxxx-Xxxx to that effect, including with such written notice evidence establishing a prima facie case of infringement by such third partyparty of a sublicense under Xxxxxx-Xxxx’x rights in the Patents as permitted by this Agreement, then Licensor’s prior written consent shall not be required. Biochrom If Xxxxxx-Xxxx elects not to initiate or maintain a lawsuit or settlement negotiation, Xxxxxx-Xxxx will promptly notify Licensor of its decision, and Licensor may then elect to initiate or prosecute the suit at Licensor’s expense. Licensor will not settle any such suit or negotiation without Xxxxxx-Xxxx’x written consent, which shall bear all expenses not be unreasonably withheld. Each Party will cooperate in good faith as reasonably needed with the initiation or prosecution of any suit brought by it based upon or negotiation. The amount of any proceeds or damages recovered from such infringement and a suit or negotiation exceeding the Parties’ expenses, shall retain all damages be allocated to the Parties in proportion to their economic interest after payment of expenses. The terms of this Section shall survive any termination or other monies awarded or received in settlement of such suit. If, after the expiration of ninety this Agreement to the extent, and only to the extent, that such terms relate to (90i) days from the date of such notice, Biochrom has not obtained a discontinuance of such infringement or brought suit against any HE Compound Patent and the third party infringerinfringement in question relates to any Xxxxxx-Xxxx Compound therein, then or (ii) Joint Improvement Patents.” Subject to the parties foregoing sentence, the terms of this Section 7 shall appoint by mutual agreement an attorney with at least 15 years experience in litigating patent infringement lawsuits in the United States, who is a partner at a law firm with a nationally recognized intellectual property practice cease to apply to any Licensed Patents and who has no prior relationship with either party (“Independent Patent Counsel”). Such Independent Patent Counsel shall evaluate the identified Third Party Infringement and advise the parties in writing by not later than 60 days after his or her appointment whether he or she believes there is a reasonable likelihood of success in pursuing a claim for the Third Party Infringement. The cost of Independent Patent Counsel shall be shared equally by the parties. If Independent Patent Counsel determines that there is a reasonable likelihood of success and by the 30th day after such advice Biochrom has still not obtained a discontinuance of such infringement or brought suit against the third party infringer, then GE Healthcare shall have the right, but not the obligation, to bring suit against such infringer. Biochrom will cooperate with GE Healthcare Xxxxx Improvement Patents in any of the Patent Groups designated in Section 2.6 at the time any such suit for infringement brought by GE Healthcare against such third party, and shall have the right Patent Group is severed from this Agreement pursuant to consult with GE Healthcare and to participate in and be represented by independent counsel in such litigation at its own expense. GE Healthcare shall bear all expenses of such suit, and shall retain any damages or other monies awarded or received in consequence of such litigationSection 5.2.