definiens: means the commencement or assertion by [COMPANY], its Affiliate or Sublicensee ( i ) in any lawsuit orreexamination proceeding ( excluding any administrative opposition proceeding ), of any claim challenging the 45 validity or enforceability of an issued [COMPANY] Patent to the extent such Patent and such challenge apply to aCompound, or ( ii ) in any administrative opposition proceeding, of any claim challenging the validity orenforceability of a [COMPANY] Patent ; provided, however, that none of the following shall constitute a for purposes of this Section 9.4 : ( A ) [COMPANY] ’s or its Affiliate ’s good faith assertion that ( x ) any Inventionclaimed by a Patent filed by or on behalf of [COMPANY] as a [COMPANY] Patent was an [COMPANY] Invention or Joint Invention, or ( y ) any Invention claimed by a Joint Patent filed by or on behalf of [COMPANY] as a Joint Patent was a Joint Invention;(B ) [COMPANY] ’s or its Affiliate ’s good faith assertion, in the context of whether a payment of royalties is due to [COMPANY], that no Valid Claim within the [COMPANY] Patents applies with respect to a Product ; ( C ) any claim made by [COMPANY] or itsAffiliate as a defense in any lawsuit or administrative proceeding brought by [COMPANY] ; and ( D ) any lawsuit, reexamination proceeding or opposition brought by [COMPANY] or its Affiliate challenging the validity or enforceabilityof any claim within an issued [COMPANY] Patent which claim does not Claim the composition of matter or formulation of, or any method of making or using, a Compound ( and not challenging the validity or enforceability of any claimwithin an issued [COMPANY] Patent that Claims the composition of matter or formulation of, or any method of making orusing, a Compound )