definiens: means either ( a ) a claim of an issued and unexpired patent which has not been held permanently revoked, unenforceable or invalid by a decision of a court or other governmental agency of competent jurisdiction, unappealable or unappealed within the timeallowed for appeal and that is not admitted to be invalid or unenforceable through reissue, disclaimer or otherwise ( i.e., only to the extent the subjectmatter is disclaimed or is sought to be deleted or amended through reissue ), or ( b ) a claim of a pending patent application that has not been abandoned, finally rejected or expired without the possibility of appeal or refiling, provided however, that ( x ) Valid Claim shall exclude any such pending claim in anapplication that has not been granted within five ( 5 ) years following the earliest priority filing date for such application and ( y ) Valid Claim shall excludeany such pending claim that does not have a reasonable bona fide basis for patentability ( such reasonable bona fide basis to be determined byarbitration pursuant to Section 16.2 with the / each arbitrator being an attorney having appropriate expertise in patent law, in the event that the Partiesdisagree as to whether there is a reasonable bona fide basis for patentability for such a claim ), in either case of ( x ) or ( y ) unless and until such claim isgranted, at which time the claim may be a Valid Claim under ( a )