FOLLOWING DEFINITIONS SHALL BE USED ONLY FOR THE
PURPOSES OF THIS SECTION 9.5 (OR AS OTHERWISE EXPRESSLY REFERENCED IN THIS
AGREEMENT):
(A)
"PROSECUTION AND MAINTENANCE" OR "PROSECUTE AND MAINTAIN," WITH REGARD TO
A PARTICULAR PATENT, MEANS THE PREPARATION, FILING, PROSECUTION AND MAINTENANCE
OF SUCH PATENT, AS WELL AS RE-EXAMINATIONS, REISSUES, REQUESTS FOR PATENT TERM
EXTENSIONS AND THE LIKE WITH RESPECT TO SUCH PATENT, TOGETHER WITH THE CONDUCT
OF INTERFERENCES, THE DEFENSE OF OPPOSITIONS AND OTHER SIMILAR PROCEEDINGS WITH
RESPECT TO SUCH PATENT.
(B)
"PROSECUTING PARTY" MEANS THE PARTY THAT IS RESPONSIBLE FOR THE
PROSECUTION AND MAINTENANCE OF A PATENT UNDER THIS SECTION 9.5.
9.5.2
EXISTING TECHNOLOGY.
EACH OF ARRAY AND CELGENE, IN ITS SOLE
DISCRETION, MAY PROSECUTE AND MAINTAIN PATENTS COVERING THE ARRAY TECHNOLOGY OR
CELGENE TECHNOLOGY, RESPECTIVELY, AND SUCH PROSECUTION AND MAINTENANCE SHALL BE
AT THE EXPENSE OF THE PARTY OWNING SUCH PATENT; PROVIDED, HOWEVER, THAT DURING
THE OPTION TERM AND FOR SO LONG THEREAFTER AS CELGENE RETAINS RIGHTS (UNDER THE
CELGENE PRODUCT OPTION, BY LICENSE OR OTHERWISE) TO COMPOUNDS THAT MODULATE THE
TARGET TO WHICH THE PATENTS LISTED IN SCHEDULE 9.5.2 RELATE, ARRAY SHALL PROVIDE
CELGENE WITH COPIES OF ALL CORRESPONDENCE REGARDING THE PROSECUTION OF SUCH
PATENTS WITH SUFFICIENT TIME FOR CELGENE TO COMMENT, AND TO THE EXTENT POSSIBLE,
AT LEAST SIXTY (60) DAYS PRIOR TO ANY RESPONSE BEING DUE TO THE APPLICABLE
PATENT OFFICE, AND ARRAY WILL CONSIDER IN GOOD FAITH REASONABLE COMMENTS
PROVIDED BY CELGENE.
IF EITHER PARTY ELECTS NOT TO PROSECUTE AND MAINTAIN
PATENTS COVERING SUCH PARTY'S TECHNOLOGY IN ANY COUNTRY, THEN SUCH PARTY SHALL
PROVIDE AT LEAST SIXTY (60) DAYS WRITTEN NOTICE TO THE
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[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.
OTHER PARTY.
THEREAFTER, THE OTHER PARTY SHALL HAVE THE RIGHT, BUT NOT THE
OBLIGATION, TO PURSUE, AT ITS SOLE EXPENSE AND IN ITS SOLE DISCRETION, THE
PROSECUTION AND MAINTENANCE OF SUCH PATENTS IN SUCH COUNTRY.
THE OWNERSHIP OF
SUCH PATENTS SHALL NOT BE AFFECTED, NOTWITHSTANDING ANY TRANSFER OF PROSECUTION
AND MAINTENANCE OF SUCH PATENTS TO SUCH OTHER PARTY IN ACCORDANCE WITH THIS
SECTION 9.5.2.
9.5.3
COLLABORATION TECHNOLOGY.
(A)
JOINTLY OWNED PATENTS.
THE PARTIES SHALL JOINTLY DECIDE ON A STRATEGY FOR
THE PROSECUTION AND MAINTENANCE OF PATENTS COVERING COLLABORATION TECHNOLOGY
THAT ARE JOINTLY OWNED, WHICH STRATEGY MAY INCLUDE RETENTION OF MUTUALLY
ACCEPTABLE OUTSIDE COUNSEL TO CONDUCT SUCH MAINTENANCE AND PROSECUTION, AND THE
PARTIES SHALL EQUALLY SHARE THE EXPENSES THEREFOR.
(B)
SOLELY OWNED PATENTS.
CELGENE OR ARRAY, AS THE CASE MAY BE, SHALL CONTROL
THE PROSECUTION AND MAINTENANCE OF PATENTS WITHIN THE COLLABORATION TECHNOLOGY
THAT ARE OWNED BY SUCH PARTY, IN EACH CASE USING COUNSEL OF ITS CHOICE AND IN
SUCH COUNTRIES AS SUCH PARTY DETERMINES IS APPROPRIATE, AND SUCH PROSECUTION AND
MAINTENANCE SHALL BE AT THE EXPENSE OF THE PARTY OWNING SUCH PATENT.
(C)
COOPERATION.
EACH PARTY SHALL, AT ITS