definiens: means either ( a ) a claim of an issued and unexpired patent which has not been held permanently revoked, unenforceable orinvalid by a decision of a court or other governmental agency of competent jurisdiction, unappealable or unappealed within the time allowed for appealand that is not admitted to be invalid or unenforceable through reissue, disclaimer or otherwise ( i.e., only to the extent the subject matter is disclaimedor is sought to be deleted or amended through reissue ), or ( b ) a claim of a pending patent application that has not been abandoned, finally rejected orexpired without the possibility of appeal or refiling, provided, however, that Valid Claim will exclude any such pending claim in an application that hasnot been granted within the later of ( A ) ten ( 10 ) years following the earliest non - provisional priority filing date for such application and ( B ) five ( 5 ) yearsafter receipt of the first office action in response to such application unless and until such claim is granted