definiens: means ( a ) a claim of an issu ed patent that has not expired or been donated to t he public, abandoned, disclaimed or admitted to be or rendered unenforceable through reissue, disclaimer or other wise, nor been revoked, held invalid, unpatentable or unenfor ceable or revoked by a patent office, court or othe r governmental agency of competent jurisdiction in a final and non - appealable judgment ( or judgment from which no appeal was taken within the allowable time perio d ), or ( b ) a claim within a patent application ( i ) which application has not been pending for more than [ * * ] years from the date of its priority filing date or ( ii ) which claim has not been revoked, cancelled, withdrawn or abandoned, or held invalid, unallowable or abandon ed by a patent office, court or other governmental agency o f competent jurisdiction in a final and non - appeala ble decision or judgment ( or decision or judgment from which no appeal was taken within the allowable time period ) . For clarity, the determination whether a g iven claim is invalid, unallowable or abandoned sha ll be made on a claim - by - claim basis and a ruling with respect to a given claim will not be deemed to apply to an y other claim or patent