definiens: shall mean ( a ) a claim of an issued and unexpired patent within the Patent R ights that has not been ( i ) held permanently revoked, unenforceable, unpatentable or invalid by a decision of a court or governmental body of competent jurisdiction, unappealable or unappealed within the time allowed for appeal, ( ii ) rendered unenforceable through disclaimer or otherwise, ( iii ) abandoned or ( iv ) permanently lost through an interference or opposition proceeding without any right of appeal or review ; or ( b ) a pending claim of a pending patent application within the Patent Rights that ( i ) has been asserted and continues to be prosecuted in good faith and ( ii ) has not been abandoned or finally rejected without the possibility of appeal or refiling, and ( iii ) has not been pending for more than [ * * * ] after the date of first substantive examination of such claim, as evidenced by the receipt of an office action on the merits from the United States Patent and Trademark Office ( or an equivalent examination report form a foreign patent office ) ; provided, however, that in the event such claim issues as a claim of an issued patent, then such claim shall be a Valid Claim hereunder, and Company shall pay to [COMPANY] any amounts that would otherwise have been due as if such claim had remained a Valid Claim