definiens: means ( i ) a claim of any issued and unexpired Pat ent whose validity, enforceability or patentability has not been affect ed by ( a ) irretrievable or unrevivable lapse, aband onment, revocation, dedication to the public or disclaimer or ( b ) a holding, finding or decision of invalidity, unenforceability or non - patentability by a court, g overnmental agency, national or regional patent off ice or other appropriate body that has competent jurisdiction, s uch holding, finding or decision being final and un appealable or unappealed within the time allowed for appeal or ( ii ) a claim of a pending Patent application that was filed and is being prosecuted in good faith and has not b een abandoned or finally disallowed without the pos sibility of appeal or re - filing of the application ; provided, however, that Valid Claim will exclude any such pending cl aim in any such Patent 16 Confidential Portions of this Exhibit marked as [ * * * ] have been omitted pursuant to a request for conf idential treatment and have been filed separately with the S ecurities and Exchange Commission