definiens: means, with respect to a given Development Candid ate, Related Program Compound or Discontinued Product, as applicable, ( a ) Patent Rights ( other than [COMPANY] Program Patents ) and Know - How that are Controlled by [COMPANY] or its Affil iates that the Parties agree to include in the appl icable Development Candidate Identification Plan ( over whi ch [COMPANY] may not exercise its final decision making authority ) or ( b ) Patent Rights ( other than [COMPANY] Program Pat ents ) that are Controlled by [COMPANY] or its Affiliat es as of the date that the license is granted under Sections 1.8 .3(d)(iii ), 3.1.2(e ), 10.6.3(h)(i ), or 10.6.4(d)(i ), as applicable, that the Parties agree ( or, if the Parties are unab le to agree, then as determined by Expert Resolutio n in accordance with Section 12.1.4 ) Cover such Development Candida te, Related Program Compound or Discontinued Produc t, as applicable, as such Development Candidate, Relat ed Program Compound or Discontinued Product exists as of such effective date of the applicable license ; provided that no inventions Covered by such Patent Rights were incorporated by [COMPANY] into such Development Candida te, Related Program Compound or Discontinued Produc t, as applicable, without [COMPANY] ’s written consent or is not otherwise reflected in the applicable Developme nt Candidate Identification Plan