Common use of Infringement by Third Parties Clause in Contracts

Infringement by Third Parties. Each Party shall promptly notify the other Party in writing of any alleged or threatened infringement by a Third Party of any Tularik Patent, Roche Bioscience Patent or Joint Patent of which they become aware and provide the other Party with all evidence in its possession supporting said infringement. The Parties agree to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Product against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any such action. If, within [ * ] following learning of the infringement by a Third Party, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, have the right to take such action in such country as it deems warranted in its own name and/or in the name of the other Party; the Party maintaining such action shall be responsible for [ * ] and shall be entitled to receive [ * ]. If more than one Party wishes to participate in taking action to protect the commercial interests of the Parties in the Product against infringement, then an authorized representative of each Party shall control such action; the costs of maintaining such action shall be [ * ], and the damages recovered from such action for the past infringement shall be [ * ]. Each Party shall render such reasonable assistance as the prosecuting Party may request.

Infringement by Third Parties. Each Party shall promptly notify the other Party in writing of any alleged or threatened infringement by a Third Party of any Tularik Patent, Roche Bioscience RPI Patent Rights or Joint LILLY Patent Rights of which they become aware and provide the other Party with all evidence in its possession supporting said infringement. The Parties agree to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Ribozyme Product against infringement by Third Parties. The Filing Party having responsibility for Patent Management shall take the lead in any such action. If, within [ * ] following learning of the infringement by a Third Party and after a written request by the other Party, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, have the right but not the obligation to take such action in such country as it deems warranted in its own name and/or in the name of the other Party; the Party maintaining such action shall be responsible for [ * ] the costs of maintaining the action and shall be entitled to receive [ * ]all damages recovered from the action for the past infringement. If more than one Party wishes to participate in taking action to protect the commercial interests of the Parties in the Ribozyme Product against infringement, then an authorized representative of each Party shall control such action; the costs of maintaining such action shall be [ * ]shared equally by the Parties, and the damages recovered from such action for the past infringement shall be [ * ]first used to pay all costs of each Party, compensatory damages for LILLY's lost sales shall be treated as Net Sales and any other damages will be shared equally by the both Parties. Each Party shall render such reasonable assistance as the prosecuting Party may request.

Infringement by Third Parties. Each Party When information comes to the attention of either Cambridge or SJM to the effect that any of the Intellectual Property of Cambridge or SJM related to the Products has been infringed by a third party (the party whose Intellectual Property has been or is threatened to be infringed, being referred to as the “Infringed Party”), Cambridge or SJM, as the case may be, shall promptly notify the other Party party in writing within ten Business Days of any alleged such infringement or threatened infringement by a Third Party of any Tularik Patent, Roche Bioscience Patent or Joint Patent of which they become aware and provide it becomes aware. The Infringed Party shall have the initial right (after consultation with the other party) to take any action to eliminate or minimize the consequences of such infringement or otherwise enforce Infringed Party’s rights and the other party shall, at the Infringed Party’s expense, cooperate with the Infringed Party with all evidence in its possession supporting said infringement. The Parties agree to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Product against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any such action. IfThe other party, within [ * ] following learning of the infringement by a Third Partyhowever, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, shall have the right to take such action in such country participate, but not as it deems warranted in a party, at its own name and/or cost in any legal action brought by the name Infringed Party to eliminate or minimize the consequences of any infringement of Intellectual Property of the Infringed Party. If the Infringed Party determines that it is necessary or desirable for the other party to join any such suit, action or proceeding, the other party shall, at Infringed Party; ’s expense, execute all documents and perform such other acts as may be reasonably required. If the Infringed Party maintaining such action initiates suit hereunder it shall be responsible for [ * ] have the exclusive right to employ counsel of its own selection and to direct and control the litigation or any settlement thereof and shall be entitled to receive [ * ]. If more than one first reimburse itself out of any sums recovered in such suit or in settlement thereof for all costs and expenses, including reasonable attorneys’ fees, necessarily involved in the prosecution of such suit, and any funds that shall remain from said recovery shall be distributed to the Infringed Party wishes and the other party in proportion to participate in taking action to protect the commercial interests loss incurred by each of the Parties in the Product against infringement, then an authorized representative of each Infringed Party shall control such action; the costs of maintaining such action shall be [ * ], and the damages recovered from such action for the past infringement shall be [ * ]. Each Party shall render such reasonable assistance as the prosecuting Party may requestother party.

Infringement by Third Parties. Each Party (a) When information comes to the attention of either Cambridge or SJM to the effect that any of the Intellectual Property of Cambridge or SJM related to the Products has been infringed by a third party (the party whose Intellectual Property has been or is threatened to be infringed, being referred to as the “Infringed Party”), Cambridge or SJM, as the case may be, shall promptly notify the other Party party in writing within ten Business Days of any alleged such infringement or threatened infringement by a Third Party of any Tularik Patent, Roche Bioscience Patent or Joint Patent of which they become aware and provide it becomes aware. The Infringed Party shall have the initial right (after consultation with the other party) to take any action to eliminate or minimize the consequences of such infringement or otherwise enforce Infringed Party’s rights and the other party shall, at the Infringed Party’s expense, cooperate with the Infringed Party with all evidence in its possession supporting said infringement. The Parties agree to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Product against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any such action. IfThe other party, within [ * ] following learning of the infringement by a Third Partyhowever, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, shall have the right to take such action in such country participate, but not as it deems warranted in a party, at its own name and/or cost in any legal action brought by the name Infringed Party to eliminate or minimize the consequences of any infringement of Intellectual Property of the Infringed Party. If the Infringed Party determines that it is necessary or desirable for the other party to join any such suit, action or proceeding, the other party shall, at Infringed Party; ’s expense, execute all documents and perform such other acts as may be reasonably required. If Infringed Party initiates suit hereunder it shall have the Party maintaining such action shall be responsible for [ * ] exclusive right to employ counsel of its own selection and to direct and control the litigation or any settlement thereof and shall be entitled to receive [ * ]. If more than one Party wishes to participate first reimburse itself out of any sums recovered in taking action to protect the commercial interests of the Parties such suit or in settlement thereof for all costs and expenses, including reasonable attorneys’ fees, necessarily involved in the Product against infringementprosecution of such suit, then an authorized representative of each Party and any funds that shall control such action; the costs of maintaining such action remain from said recovery shall be [ * ], distributed to Infringed Party and the damages recovered from such action for other party in proportion to the past infringement shall be [ * ]. Each loss incurred by each of Infringed Party shall render such reasonable assistance as and the prosecuting Party may requestother party.

Infringement by Third Parties. Each Party shall promptly notify the other Party in writing of any alleged or threatened infringement by a Third Party of any Tularik Patent, RPI Patent Rights or Roche Bioscience Patent or Joint Patent Rights of which they become aware and provide the other Party with all evidence in its possession supporting demonstrating said infringement. The Parties agree to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds any Target Discovery Program or a Product against infringement by Third Parties. The Filing Party having responsibility for Patent Management shall take the lead in any such action. If, within [ * ] three (3) months following learning of the infringement by a Third Party and after a written request by the other Party, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, have the right to take such action in such country as it deems warranted in its own name and/or in the name of the other Party; the Party maintaining such action shall be responsible for [ * ] the costs of maintaining the action and shall be entitled to receive [ * ]all damages recovered from the action for the past infringement. Each Party shall join in the action, but shall be under no obligation to participate except to the extent that such participation is required as a result of its being a named party to the action. If more than one Party wishes to participate in taking action to protect the commercial interests of the Parties in the Product against infringement, then an authorized representative of each Party shall control such action; the costs Confidential portions ([ ]) have been omitted pursuant to regulation 240.25b-2(b) of the Securities Exchange Act of 1934 and have been filed separately with the Commission. of maintaining such action shall be [ * ]shared equally by the Parties, and the damages recovered from such action for the past infringement shall be [ * ]shared equally by the both Parties. Each Party shall render such reasonable assistance as the prosecuting Party may request. Notwithstanding the foregoing, RPI shall handle in its sole discretion and expense any oppositions, interferences, or litigation relating to the Ribozyme Technology/Cech patents and shall keep Roche informed on a regular basis, but no less than quarterly, of the status of any such oppositions, interferences, or litigation, and shall promptly provide Roche with copies of all substantive communications relating thereto.

Infringement by Third Parties. Each Party shall promptly notify the other Party in writing promptly upon learning of any actual or alleged or threatened infringement by a Third Party of any Tularik Patent, Roche Bioscience Patent or Joint Patent Trademarks relating to Licensed Product of which they become aware and provide aware. The Party owning such Trademark shall have the first right, but not the obligation, to control the prosecution of any such infringement. If the Party having the first right to control the prosecution of any such infringement does not initiate an infringement action within [*] of learning of the infringement, then the other Party with all evidence in its possession supporting said infringement. The Parties agree shall have the right, but not the obligation, to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties in the Research Collaboration, Research Compounds, Development Compounds or a Product against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any bring such an action. If, within [ * ] following learning of the infringement by a Third Party, such Neither Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, the other Party shall, in its sole discretion, shall have the right to take such settle any infringement action under this Section 11.9(c) in such country as it deems warranted in its own name and/or in a manner that diminishes the name of the other Party; the Party maintaining such action shall be responsible for [ * ] and shall be entitled to receive [ * ]. If more than one Party wishes to participate in taking action to protect the commercial rights or interests of the Parties Party or imposes any liability on the other Party without the consent of such other Party. The expenses of defense, settlement and judgments in actions governed by this Section 11.9(c) shall be: (i) borne [*] in the Product against infringement, then an authorized representative Royalty Territory; and (ii) [*] in the Co-Promotion Territory. The costs and expenses of each the Party bringing suit under this Section 11.9(c) shall control be reimbursed first out of any damages or other monetary awards recovered in favor of Corgentech and/or BMS (if such recovery is less than the Parties' aggregate costs and expenses incurred in such action; the costs of maintaining , such action recovery shall be [ * allocated between the Parties [*], and the . Any remaining damages recovered from such action for the past infringement shall be [ * allocated: (i) on the same pro rata basis within the Royalty Territory; and (ii) [*] with respect to infringement of Trademarks within the Co-Promotion Territory. Any recovery shall be allocated as provided in this Section, shall [*]. Each Party shall render such reasonable assistance as the prosecuting Party may request.

Infringement by Third Parties. Each Party shall promptly notify the other Party in writing promptly upon learning of any actual or alleged or threatened infringement by a any Third Party of any Tularik Patent, Roche Bioscience Patent or Joint Patent Product Trademarks in the Territory of which they become aware aware. SELLAS shall have the first right, but not the obligation, to initiate, pursue, prosecute and provide control any legal Action and to control the other Party with all evidence in its possession supporting said infringement. The Parties agree defense of any challenge relating to cooperate in taking commercially reasonable legal actions to protect the commercial interests of the Parties Product Trademarks in the Research CollaborationTerritory. If SELLAS does not take steps to address the infringement or initiate an infringement Action within [***], Research Compoundsor any other period that requires action, Development Compounds or a Product against infringement by Third Parties. The Party having responsibility for Patent Management shall take the lead in any such action. If, within [ * ] following after learning of the infringement by a Third Party, such Party fails to take commercially reasonable action against the Third Party to [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. halt such alleged infringement, then 3DMed shall have the other right, but not the obligation, to bring such an Action. Neither Party shall, in its sole discretion, shall have the right to take such settle any infringement action under this Section 6.4(b) in such country as it deems warranted in its own name and/or in a manner that diminishes the name rights or interests of the other Party or imposes any liability on the other Party without the prior written consent of such other Party; , which shall not be unreasonably withheld, conditioned or delayed. SELLAS shall have the right to choose outside counsel. All reasonable and documented expenses of outside counsel incurred in bringing, maintaining, defending, prosecuting, settling, obtaining or enforcing a judgment in any Action governed by this Section 6.4(b) shall be borne by the Party maintaining bringing, maintaining, defending, prosecuting, settling, obtaining or enforcing a judgment in such action Action (to the extent not reimbursed through recoveries from such litigation). Except as otherwise provided, the costs and expenses of the Party bringing suit under this Section 6.4 shall be responsible for [ * ] borne by such Party, and any damages or other monetary awards recovered shall be entitled shared as follows: (i) the amount of such recovery actually received by the Party controlling such Action shall first be applied to receive [ * ]. If more than one Party wishes to participate in taking action to protect the commercial interests of the Parties in the Product against infringement, then an authorized representative out-of-pocket costs of each Party shall control in connection with such actionAction; (ii) if 3DMed is the costs Party controlling such Action, then [***] of maintaining such action any remaining proceeds shall be [ * ]retained by 3DMed, and [***] of the damages recovered from such action for the past infringement remaining proceeds shall be [ * ]. Each paid to SELLAS; or (iii) if SELLAS is the Party controlling such Action, then [***] of any remaining proceeds shall render such reasonable assistance as be retained by SELLAS, and [***] of the prosecuting Party may requestremaining proceeds shall be paid to 3DMed.