definiens: means, solely with respect to Patents that claim or cover the manufacture, use, sale, offer for sale or import of the Included Product : ( a ) an issued claim of any issued Patent owned or co ntrolled by the Seller that has not expired, or been revoked, c ancelled, become abandoned or disclaimed, been decl ared invalid and/or unenforceable by a Patent Office or a decisi on or judgment of a court or other appropriate body of competent jurisdiction ; and ( b ) a claim included in a pending Patent application that is being prosecuted in goo d faith and that has not been cancelled, withdrawn from consideratio n, finally determined to be unallowable by the Pate nt Office or applicable Governmental Authority ( from which no appeal is or can be taken ), or abandoned or discla imed ; provided, however, that, if a claim of a Patent app lication has been pending for more than five ( 5 ) ye ars, such claim will not constitute a Valid Claim for the pur poses of the Agreement unless and until a Patent is sues with such claim ; provided, further, that, for purposes o f the foregoing proviso, any newly filed claim whic h claims essentially the same subject matter as any earlier filed claim shall be considered pending for the sam e period of time as such earlier filed claim has been pending