definiens: means Patents or trade secrets that are Controlled by J&J and cover or claim proprietary formulation or delivery technologies, devices or methods ( including but not limited to methods of treating or preventing diseases or conditions in mammals ) that were developed independent of the Research Program or activities under the Agreement and are broadly applicable to use with pharmaceutical agents other than the Active Compounds ; ( vi ) if such termination of this Agreement by Arena pursuant to Section 13.4 ( for breach of diligence ) or 14.10 or under Section 11.2, or by J&J under Section 11.2, 11.3, 11.4, 11.5 or 14.10 occurs after dosing of the first patient in a Phase IIa Clinical Trial, Arena shall have the option to obtain a worldwide, exclusive ( even as to J&J ), irrevocable, perpetual license, with the right to sublicense, under the Proprietary Delivery Technology, solely to make, have made, use, sell, have sold, offer for sale and import products containing whatever Active Compound or Active Compounds were undergoing or had undergone ( as a Selected Compound ) such Phase IIa Clinical Trial in the Field, and Arena shall pay to J&J royalties equal to three percent ( 3 % ) of the net sales by Arena, its Affiliates or sublicensees of products covered under such Proprietary Delivery Technology as the sole consideration for such license ( and where such shall be defined in the equivalent manner as in Article 1 for sales of Collaboration Products by J&J ) ; ( vii ) J&J covenants to Arena that J&J and its Affiliates and Sublicensees will not develop, promote, market or sell any compound that has been discovered or identified as an Active Compound, or has otherwise become known to J&J or its Affiliate as an Active Compound, or any product containing such an Active Compound ; and ( viii ) If J&J intends to abandon or not maintain any J&J Patent or Joint Patent that claims an Active Compound or its manufacture or use or that claims 19 AJ or its use in discovering modulators or in a method of treatment, J&J will provide reasonable prior written notice to Arena of such intention to abandon ( which notice will, in any event, be given no later than 60 days prior to the next deadline for any action that may be taken with respect to such Joint Patent with the U.S. Patent & Trademark Office or any foreign patent office ) and Arena may then assume the J&J Patent Prosecution with respect to such J&J Patent or Joint Patent