COULD NOT
PRACTICE UNDER THE PATENT RIGHTS, AND WHICH RIGHTS ARE (IN THE REASONABLE
OPINION OF COMPANY'S OR SUBLICENSEE'S COUNSEL) NECESSARY IN ORDER FOR THE
COMPANY OR SUBLICENSEE TO SELL OR PERFORM INFRINGING FECAL BASED TESTS OR OTHER
ITEMS, THEN [********] OF THE AMOUNT OF ANY SUCH THIRD PARTY PAYMENTS SHALL BE
CREDITED AGAINST AMOUNTS OTHERWISE PAYABLE TO JHU HEREUNDER (ONLY IN SUCH
CIRCUMSTANCES WHERE COMPANY COULD NOT PRACTICE THE PATENT RIGHTS); PROVIDED,
HOWEVER, THAT IN NO EVENT SHALL ANY SUCH CREDIT BE APPLIED TO REDUCE THE AMOUNT
PAYABLE HEREUNDER IN RESPECT OF ANY SUCH INFRINGING FECAL BASED TEST OR OTHER
ITEM TO LESS THAN [********] OF THAT AMOUNT WHICH WOULD OTHERWISE HAVE BEEN PAID
OR PAYABLE TO JHU IN RESPECT THEREOF IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT AND PRIOR TO ANY CREDIT OTHERWISE AVAILABLE UNDER THIS PARAGRAPH 3.8.
ARTICLE 4
PATENT PROSECUTION
4.1
PROSECUTION & MAINTENANCE - GENERAL.
SUBJECT TO AND IN ACCORDANCE
WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THIS ARTICLE 4, THE
PARTIES SHALL PREPARE, FILE, PROSECUTE AND MAINTAIN THE PATENT RIGHTS.
TITLE TO
ALL PATENT AND PATENT APPLICATIONS CONSTITUTING OR COMPRISING THE PATENT RIGHTS
SHALL IN ANY EVENT RESIDE WITH JHU, BUT SHALL CONTINUE TO BE LICENSED TO THE
COMPANY AS AND TO THE EXTENT HEREIN PROVIDED.
PURSUANT TO THE PROVISIONS OF
THIS ARTICLE 4, THE PARTIES DESIRE TO ESTABLISH REASONABLE AND APPROPRIATE
PROCEDURES FOR THE MAKING OF ANY AND ALL DETERMINATIONS NECESSARY IN RESPECT OF
THE PREPARATION, FILING, PROSECUTING AND MAINTAINING OF THE PATENT RIGHTS, AND
FOR THE MAKING OF DECISIONS WITH RESPECT THERETO.
IN THAT REGARD, THE PARTIES
SHALL EXERCISE BEST EFFORTS TO KEEP EACH OTHER INFORMED ON THE PROGRESS OF ALL
PATENTS AND PATENT APPLICATIONS RELATED TO THE PATENT RIGHTS FOR WHICH THE
RESPECTIVE PARTIES MAINTAIN RESPONSIBILITY UNDER THIS AGREEMENT, AS HEREIN BELOW
PROVIDED.
AT ALL TIMES DURING WHICH THIS AGREEMENT REMAINS IN EFFECT, ALL COSTS
AND EXPENSES INCURRED IN CONNECTION WITH THE PROSECUTION, FILING OR MAINTENANCE
OF THE PATENT RIGHTS, INCLUDING COSTS AND EXPENSES OF COUNSEL EMPLOYED BY EXACT
OR JHU IN RESPECT OF EITHER THE EXACT OVERSEEN PATENT RIGHTS OR THE JHU OVERSEEN
PATENT RIGHTS, WHETHER IN A PRIMARY OR OVERSIGHT ROLE AS DESCRIBED FURTHER
BELOW, SHALL BE BORNE SOLELY BY EXACT, AND EXACT SHALL PROMPTLY REIMBURSE JHU
FOR ANY EXPENSES INCURRED AND PAID OUT-OF-POCKET BY JHU IN RESPECT THEREOF.
4.2
PROSECUTION, MAINTENANCE - EXACT OVERSEEN PATENT RIGHTS.
FOLLOWING
THE EFFECTIVE DATE, EXACT SHALL, AT ITS SOLE COST AND EXPENSE, BE PRIMARILY
RESPONSIBLE FOR DECISIONS RELATING TO, AND OVERSIGHT AND MANAGEMENT OF, THE
PREPARATION, FILING, PROSECUTION AND MAINTENANCE OF THE EXACT OVERSEEN PATENT
RIGHTS, INCLUDING, WITHOUT LIMITATION, THE SELECTION AND RETENTION OF PATENT
COUNSEL TO PREPARE, FILE, PROSECUTE AND MAINTAIN THE EXACT OVERSEEN PATENT
RIGHTS, ALL SUBJECT, HOWEVER, TO THE TERMS AND CONDITIONS OF THIS ARTICLE 4.
EXACT SHALL EXERCISE ITS BEST EFFORTS TO KEEP JHU INFORMED OF THE PROGRESS OF
ALL PATENTS AND PATENT APPLICATIONS INCLUDED AMONG THE EXACT OVERSEEN PATENT
RIGHTS, AND IN ANY EVENT,