definiens: means either ( a ) a claim of an issued and unexpired patent which has not been heldpermanently revoked, unenforceable or invalid by a decision of a court or other governmental agency of competentjurisdiction, unappealable or unappealed within the time allowed for appeal and that is not admitted to be invalid orunenforceable through reissue, disclaimer or otherwise ( i.e., only to the extent the subject matter is disclaimed or issought to be deleted or amended through reissue ), or ( b ) a claim of a pending patent application that has not beenabandoned, finally rejected or expired without the possibility of appeal or refiling, provided, however, that ( i ) ValidClaim will exclude any such pending claim in an application that has not been granted within the later of ( A ) five(5 ) years following the earliest non - provisional priority filing date for such application and ( B ) three ( 3 ) years afterreceipt of the first office action in response to such application and ( ii ) Valid Claim will exclude any such pendingclaim that does not have a reasonable bona fide basis for patentability ( such reasonable bona fide basis to bedetermined by arbitrators pursuant to Section 16.2 who shall be an outside counsel selected by the Parties in theevent that - 14 -the Parties disagree as to whether there is a reasonable bona fide basis for patentability for such a claim ), in eithercase of ( i ) or ( ii ), unless and until such claim is granted