definiens: shall mean ( a ) [COMPANY] 's Japanese Patent No . JP 3136129, European Patent No . EP 0 872 562 BI ; and claims in [COMPANY] 's patents and applications that claim priority of United States patent application Serial No . 08/968~208 ; and ( a ) each patent claim to an apparatus or to a method of using that apparatus now or hereafter owned by [COMPANY] ; provided that such claim would be infringed by the manufacture, use ( in the manner used as of the Effective, Date as evidenced by Licensee 's product literature attached as Exhibit 2 to this Agreement ) or sale of any [COMPANY] Smart Cycler, GeneXpert or I~ CORE - module - containing product that had been commercially sold by Licensee as of the Effective Date ofthisAgreement, as evidenced by Licensee 's product literature attached as Exhibit 2 to this Agreement . No other patent claims are included, whether expressly or by implication, within the definition of Real - Time Apparatus Rights or Amplification System Patent Rights . Notwithstanding anything herein to the contrary, the term Real - Time Apparatus Patent Rights does not include any patent or patept claim that claims ' a real - time process, reagent or method