definiens: as of a point in time, shall mean any product of a Third Party ( i ) that Palomar is accusing of infringement under any Xxxxx xxx Patent in a then - pending suit or action, provid ed that ( 1 ) if ( A ) Palomar accuses such Third Party of infr ingement under any Xxxxxxxx Patent pursuant to a su it or action instituted after the Effective Date ( and suc h Third Party was not accused by Palomar of such in fringement pursuant to a suit or action as of the Effective Da te ) ( a ), ( B ) [COMPANY] or it s Affiliate is at the time of such institution of such suit or act ion, or has been in the last six ( 6 ) months prior t o such institution of such suit or action, in active negotiations with such Later Sued Third Party with respect to a pote ntial business transaction ( which can be evidenced by [COMPANY] thro ugh reasonable documentation ) and ( C ) the definitiv e documentation for such transaction is executed with in six ( 6 ) months after the filing of such suit or action, then the products of such Later Sued Third Party relevan t to such business transaction will not be covered by this definition and ( 2 ) if [COMPANY] or its Affiliate inco rporates any non - core Components of such Later Sued Third Party in any [COMPANY] Products prior to such institu tion of such suit or action, then such non - core Com ponents will not be deemed Excluded Technology to the exten t incorporated in [COMPANY] Products ( including if Sy neron and its Affiliates continue to incorporate such non -core Components in [COMPANY] Products ), or ( ii ) with respect to which Palomar has obtained a then - outstanding injun ction preventing the making or sale of such Third P arty product based on infringement of any Xxxxxxxx Paten t ( and such Third Party ’s making or selling of such product has not been licensed to do so under the ap plicable Xxxxxxxx Patent for such product )