definiens: shall mean rights inpatents and patent applications in any country and know - how ( including information, trade secrets and data, whetherpatentable or not ) which are controlled by a Transaction Counterparty Group immediately prior to the consummation ofthe Acquisition Transaction involving such Transaction Counterparty Group and the applicable Transaction Party;provided, however that such patent rights and know - how of a Transaction Counterparty Group shall not be consideredTransaction Counterparty Group Intellectual Property ( and shall therefore be included as NVS Patents or Know - How, or Vanda Patents or Vanda Know - How, as applicable ) in the event that ( i ) any such patent rights and/or know - how areactually used by such Transaction Counterparty Group or any of its Affiliates at any time during the term of thisSublicense Agreement in the research, development or commercialization of the Compound or Product or ( ii ) suchpatent rights and know - how were licensed to [COMPANY] or Vanda ( as applicable ) hereunder prior to the consummation ofthe Acquisition Transaction