definiens: means ( a ) a claim of an issued and unexpiredPatent within the Product IP that has not been revoked or held unenforceable, unpatentable orinvalid by a decision of a court or other governmental agency of competent jurisdiction that is notappealable or has not been appealed within the time allowed for appeal, and that has not beenabandoned, disclaimed, denied or admitted to be invalid or unenforceable through reissue, re - examination or disclaimer or otherwise, or ( b ) a claim in any pending Patent within the Product IPthat has not been abandoned or finally disallowed without the possibility of appeal or re - filing ofthe application ; provided that such claim, or any other claim that is not patentably distinct, has notbeen pending more than [ * * * ] ( [ * * * ] ) years from the priority date of such application ( but if suchpending claim with a pendency of [ * * * ] ( [ * * * ] ) years or longer subsequently issues it will beconsidered a Product Claim upon issuance, but without retroactive effect )