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 on the merits in response to such application and ( ii ) Valid Claim will exclude any suchpending claim 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 the Parties disagree as to whether there is a reasonable bona fide basis for patentability for such a claim),in either case of ( i ) or ( ii ), unless and until such claim is granted