definiens: means : ( a ) a claim in an issued Patent that has n ot : ( i ) expired or been canceled ; ( ii ) been declared invalid by an unreversed and una ppealable or unappealed decision of a court or othe r appropriate body of competent jurisdiction ; ( iii ) been admitted to be invalid or unenforceable through reissue, di sclaimer or otherwise ; or ( iv ) been abandoned in accordance wit h or as permitted by the terms of this Agreement or by written agreement of the Parties ; or ( b ) a claim that has b een pending [ * * * ] or less from the date that the fi rst action on the merits ( excluding restriction requirements, not ices to file missing parts, and the like ) was recei ved in a patent application in which such claim is examined, and th at has not been abandoned ( without the possibility of refiling ) or finally rejected by the applicable Governmental Authority or court ( and from which no appeal is or can be taken ) . For clarity, if a claim is canceled and ref iled in a continuing application, the period of pen dency is calculated from the date that the first action on the merits a s to that claim was first received