definiens: means ( a ) a claim of a n issued and unexpired Patent within the Product IP that has not been revoked or held unenfo rceable, unpatentable or invalid by a decision of a court or other governmental agency of competent jurisdiction that is not appealable or has not been appealed wi thin the time allowed for appeal, and that has not been aban doned, disclaimed, denied or admitted to be invalid or unenforceable through reissue, re - examination or di sclaimer or otherwise, or ( b ) a claim in any pendin g Patent within the Product IP that has not been abandoned o r finally disallowed without the possibility of app eal or re - filing of the application ; provided that such claim, or any other claim that is not pa tentably distinct, has not been pending more than [ * * * ] ( [ * * * ] ) years from the prio rity date of such application ( but if such pending claim with a pendency of [ * * * ] ( [ * * * ] ) years or longer subsequ ently issues it will be considered a Product Claim upon issuance, but without retroactive effect )