definiens: means a claim of any Company Patent that covers t he composition of matter of the Licensed Product whose validity, enforceability, or patentability has not been affected by any of the following : ( a ) expiration ; ( b ) irretrievable lapse, abandonmen t, revocation, dedication to the public, or disclai mer ; or ( c ) a holding, finding, or decision of invalidity, unenfo rceability, or non - patentability by a court, govern mental agency, national or regional patent office, or other approp riate body that has competent jurisdiction, such ho lding, finding, or decision being final and unappealable or unappea led within the time allowed for appeal ; provided th at in the case of a pending claim in any such Company Patent, such claim shall be [ * * * ] years or less from the d ate that the first action on the merits ( excluding restriction r equirements, notices to file missing parts, and the like ) was received in a patent application in which such clai m is examined, and that has not been abandoned ( wit hout the possibility of refiling ) or finally rejected by the applicable Governmental Authority or court ( and fr om which no appeal is or can be taken )