definiens: means ( a ) an issued claim of an issued Patent within the [COMPANY] Patents which has notbeen ( i ) held unpatentable, invalid or unenforceable by a court or other government agency of competent jurisdiction ina decision from which no appeal can or 10.has been taken ; and ( ii ) admitted to be invalid or unenforceable through reissue, re - examination, disclaimer orotherwise ; or ( b ) a pending claim of a pending Patent application within the [COMPANY] Patents which is being activelyprosecuted in accordance with this Agreement and which has not been cancelled, abandoned or withdrawn fromconsideration, or finally determined to be unallowable by the applicable government agency of competent jurisdictionwhich no appeal can or has been taken . With respect to a Valid Claim of a pending patent application, the phrase to means to engage in an activity that would infringe ( i.e., by either directly infringing, contributorily infringing, or inducing infringement of ) such Valid Claim if it were contained in an issued patent