definiens: shall mean a claim of ( i ) an issued and unexpired Patent or an unexpired supplementary protection certificate, which claim has not been abandoned, disclaimed, revoked or held invalid or unenforceable by a court or other government agency of competent jurisdiction from which no appeal can be or has been taken, and has not been held or admitted to be invalid or unenforceable through re - examination or disclaimer, reissue, opposition procedure, nullity suit or otherwise, or ( ii ) a patent application that has been pending for five ( 5 ) or fewer years and has not been cancelled, withdrawn or abandoned ; provided however, that [COMPANY] may, on or after the fifteenth ( 15th ) anniversary of First 16 I - PR/1374875.15 CONADENTIAL TREATMENT REQUESTED Commercial Sale of the Product in the Territory by written notice to Myriad, exclude from the definition of the tenn any patent application that would otherwise be included in such definition, regardless of how long such patent application has been included within the licenses granted to [COMPANY] herein, such exclusion to be effective upon [COMPANY] 's written notice to Myriad, for all purposes hereunder ( including for purposes of Article II and Article ill ), for the remainder of the Tenn and throughout the Territory