definiens: shall mean any entity other than [COMPANY], Mirati an d their respective Affiliates . 1.40 shall mean ( a ) a claim of an issued and unexpired Patent ( including the term of any patent term extension, supplemental protection cert ificate, renewal or other extension ) which has not been : ( i ) held unpatentable, invalid or unenforceable in a final d ecision of a court or other government agency of co mpetent jurisdiction from which no appeal may be or has bee n taken, or ( ii ) admitted to be invalid or unenforc eable through reissue, re - examination, disclaimer or otherwise ; o r ( b ) a claim of a patent application, which claim has been pending less than five ( 5 ) years from the original filing date of such claim in a given country, unles s or until such claim thereafter issues as a claim of an issued Pat ent ( from and after which time the same shall be de emed a Valid Claim subject to paragraph ( a ) above )