definiens: means any challenge to the validity or enforceability of the applicable [COMPANY] Patent, including by ( a ) ﬁling a declaratoryjudgment action in which the applicable [COMPANY] Patent is alleged to be invalid or unenforceable, ( b ) becoming party to aninterference with the applicable [COMPANY] Patent pursuant to 35 U.S.C. § 135 or ( c ) ﬁling or commencing any reexamination, opposition, cancellation, nullity or similar proceedings against the applicable [COMPANY] Patent, or petitioning for any form ofadministrative or judicial ( or arbitration ) review of the applicable [COMPANY] Patent, including post - grant review, inter partesreview, or opposition proceedings ; provided, however, that the term Challenge shall not include arguments, or any otherstatements or allegations, made by or on behalf of the Company, its Aﬃliate, or its Sublicensee that ( i ) distinguish theinventions claimed in patents or patent applications owned or controlled ( except by virtue of this Agreement ) by theCompany, its Aﬃliate, or its Sublicensee from those claimed in the [COMPANY] Patents ( A ) in the ordinary course of ex parteprosecution of such patents or patent applications owned or controlled by the Company, its Aﬃliate, or its Sublicensee, including any reissue or reexamination patents or patent applications or ( B ) in inter partes or post grant review proceedings, oppositions, nullity proceedings, reissue proceedings, reexamination proceedings, and any other similar proceedings beforethe U.S. Patent & Trademark Oﬃce or other agency or tribunal in any jurisdiction, or in any arbitration or litigation, whereinsuch patents or patent applications owned or controlled by the Company, its Aﬃliate, or its Sublicensee have beenchallenged ; or ( ii ) are made in connection with a response to a claim or allegation that the Company, its Aﬃliate, or itsSublicensee, or any of their34respective direct or indirect customers infringes or may infringe any Patents Controlled or enforceable by [COMPANY], itsAﬃliates, or any of their respective successors or assigns