definiens: means, solely with respect to Patents that claim or cover the manufacture, use, sale, offer for sale or import of the Included Product : ( a ) an issued claim of any issued Patent owned or co ntrolled by the Seller that has not expired, or been revoked, c ancelled, become abandoned or disclaimed, been decl ared invalid and/or unenforceable by a Patent Office or a decisi on or judgment of a court or other appropriate body of competent jurisdiction ; and ( b ) a claim included in a pending Patent application that is being prosecuted in goo d faith and that has not been cancelled, withdrawn from consideratio n, finally determined to be unallowable by the Pate nt Office or applicable Governmental Authority ( from which no appeal is or can be taken ), or abandoned or discla imed ; provided, however, that, if a claim of a Patent app lication has been pending for more than [ * ] years, such claim will not constitute a Valid Claim for the purposes of this Agreement unless and until a Patent issues with such claim ; provided, further, that, for purposes of the foregoing proviso, any newly filed claim which cla ims essentially the same subject matter as any earlier filed claim shall be considered pending for the same period of time as such earlier filed claim has been pending