Common use of Validity Challenge Clause in Contracts

Validity Challenge. (a) In the event that a Third Party attacks the validity or enforceability of any particular Kissei Patents in the Territory (including by way of interference, opposition, reissue proceeding or reexamination, but not in response to any enforcement action taken pursuant to Section 12.1(b), whether such challenge is made as a counter-claim or as a separate action that may be consolidated with any such enforcement action, which challenge shall be addressed as provided in Section 12), then Kissei shall first have the right, but not the obligation, to take such legal action, at its discretion, as is required to defend the validity or enforceability of such particular Kissei Patents, and Elixir shall give all reasonable assistance (excluding financial assistance) to Kissei. Elixir may be represented by counsel of its own selection at its own expense in any such legal action but Kissei shall have the right to control the action with counsel of its own choice; provided, however, that Kissei shall not agree to any settlement of such action without the prior written consent of Elixir, such consent not to be unreasonably withheld or delayed. If Kissei does not take legal action as is required to defend the validity or enforceability of such particular Kissei Patents, Kissei shall provide at least thirty (30) days notice to Elixir prior to a corresponding deadline, if applicable, and Elixir may then, at its option, assume control and defence of such action at its expense. In the event that Elixir assumes control of the defence, Kissei shall give reasonable assistance (excluding financial assistance) to Elixir. Kissei may be represented by counsel of its own selection at its own expense in any such legal action, but Elixir shall have the right to control the action with counsel of its own choice; provided, however, that Elixir shall not agree to any settlement of such action without the prior written consent of Kissei, such consent not to be unreasonably withheld or delayed. * Confidential Treatment Requested

Validity Challenge. (a) In the event that a Third Party attacks the validity or enforceability of any particular Kissei Patents in any country of the Territory (including by way of interference, opposition, reissue proceeding or reexamination, but not in response to any enforcement action taken pursuant to Section 12.1(b), whether such challenge is made as a counter-claim or as a separate action that may be consolidated with any such enforcement action, which challenge shall be addressed as provided in Section 12)ObsEva Territory, then Kissei shall first have the rightat its own discretion, but not the without obligation, to promptly take such legal action, at its discretion, action as is required to defend the validity or enforceability of such particular Kissei Patents, Patents and Elixir ObsEva shall give all reasonable assistance (excluding financial assistance) to Kissei. Elixir ObsEva may be represented by counsel of its own selection at its own expense in any such legal action but Kissei shall have the right to control the action with counsel of its own choicesuit and proceeding; provided, however, that Kissei shall not agree to any settlement of such action the suit without the prior written consent of Elixir, such consent not to be unreasonably withheld or delayedObsEva. If Kissei does would not take legal action as is required to defend the validity or enforceability of such particular Kissei Patents, Kissei shall provide at least thirty (30) days notice to Elixir prior to a corresponding deadline, if applicable, and Elixir ObsEva may then, at its option, assume control and defence defense of such action claim at its expense. In the event that Elixir ObsEva assumes control of the defencedefense, Kissei shall give all reasonable assistance (excluding financial assistance) to ElixirObsEva. Kissei may be represented by counsel of its own selection at its own expense in any such legal action, but Elixir ObsEva shall have the right to control the action with counsel of its own choicesuit and proceeding; provided, however, that Elixir ObsEva shall not agree to any settlement of such action the suit without the prior written consent of Kissei, . Any amounts recovered by either Party pursuant to this Section will first be used to reimburse the Parties for any out-of-pocket litigation expenses (including reasonable attorney’s fees and expenses) and any other legal expenses incurred pursuant to such consent not validity challenge. Any remaining amounts shall be attributed to ObsEva and will be unreasonably withheld or delayed. * Confidential Treatment Requesteddeemed Net Sales subject to a royalty hereunder.