SUBSTITUTE ITSELF FOR THE WITHDRAWING PARTY AND PURSUE SUCH ACTION OR PROCEEDING
IN ACCORDANCE WITH THE TERMS OF THIS SECTION 8.4.
D.
COOPERATION.
THE PARTY NOT ENFORCING THE APPLICABLE PATENT
WILL PROVIDE REASONABLE ASSISTANCE TO THE OTHER PARTY (AT SUCH OTHER PARTY'S
EXPENSE), INCLUDING PROVIDING ACCESS TO RELEVANT DOCUMENTS AND OTHER EVIDENCE,
MAKING ITS EMPLOYEES AVAILABLE AT REASONABLE BUSINESS HOURS, AND JOINING THE
ACTION TO THE EXTENT NECESSARY TO ALLOW THE ENFORCING PARTY TO MAINTAIN THE
ACTION.
E.
DAMAGES.
IN THE EVENT THAT EITHER PARTY EXERCISES THE RIGHTS
CONFERRED IN THIS SECTION 8.4 AND RECOVERS ANY DAMAGES OR OTHER SUMS IN SUCH
ACTION, SUIT OR PROCEEDING OR IN SETTLEMENT THEREOF, SUCH DAMAGES OR OTHER SUMS
RECOVERED SHALL FIRST BE APPLIED TO ALL OUT-OF-POCKET COSTS AND EXPENSES
INCURRED BY THE PARTIES IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES.
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 8.4, EACH PARTY
WILL BEAR ITS OWN EXPENSES WITH RESPECT TO ANY SUIT OR OTHER PROCEEDING AGAINST
AN INFRINGER.
IF SUCH RECOVERY IS INSUFFICIENT TO COVER ALL SUCH COSTS AND
EXPENSES OF BOTH PARTIES, IT SHALL BE SHARED PRO RATA IN PROPORTION TO THE TOTAL
OF SUCH COSTS AND EXPENSES INCURRED BY EACH PARTY.
IF AFTER SUCH REIMBURSEMENT
ANY FUNDS SHALL REMAIN FROM SUCH DAMAGES OR OTHER SUMS RECOVERED, SUCH FUNDS
SHALL REMAIN WITH THE PARTY THAT BROUGHT THE ENFORCEMENT ACTION AT ITS EXPENSE.
SECTION 8.5
NOTIFICATION OF PATENT
CERTIFICATION.
PHARMACOPEIA SHALL NOTIFY AND PROVIDE BMS WITH COPIES OF ANY
ALLEGATIONS OF ALLEGED PATENT INVALIDITY, UNENFORCEABILITY OR NON-INFRINGEMENT
OF ANY PHARMACOPEIA PROGRAM PATENT COVERING A RESEARCH COMPOUND OR BMS COMPOUND,
OR A PRODUCT (INCLUDING METHODS OF USE THEREOF) PURSUANT TO A PARAGRAPH IV
PATENT CERTIFICATION BY A THIRD PARTY FILING AN ABBREVIATED NEW DRUG
APPLICATION, AN APPLICATION UNDER §505(B)(2) OR OTHER SIMILAR PATENT
CERTIFICATION BY A THIRD PARTY, AND ANY FOREIGN EQUIVALENT THEREOF FOR A GENERIC
PRODUCT.
SUCH NOTIFICATION AND COPIES SHALL BE PROVIDED TO BMS BY PHARMACOPEIA
AS SOON AS PRACTICABLE AND AT LEAST WITHIN FIVE (5) BUSINESS DAYS AFTER
PHARMACOPEIA RECEIVES SUCH CERTIFICATION, AND SHALL BE SENT BY FACSIMILE AND
OVERNIGHT COURIER TO THE ADDRESS SET FORTH BELOW:
Bristol-Myers Squibb Company
P.O. Box 4000
Route 206 & Province Line Road
Princeton, New Jersey 08543-4000
Attention:
Vice President and Chief Intellectual Property Counsel
Telephone:
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Facsimile:
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SECTION 8.6
FURTHER ACTIONS.
EACH PARTY
SHALL, UPON THE REASONABLE REQUEST OF THE OTHER PARTY, PROVIDE SUCH ASSISTANCE
AND EXECUTE SUCH DOCUMENTS AS ARE REASONABLY NECESSARY FOR SUCH PARTY TO
EXERCISE ITS RIGHTS AND/OR PERFORM ITS OBLIGATIONS PURSUANT TO THIS ARTICLE 8;
PROVIDED HOWEVER, THAT NEITHER PARTY SHALL BE REQUIRED TO TAKE ANY ACTION
PURSUANT TO ARTICLE 8 THAT SUCH PARTY REASONABLY DETERMINES IN ITS SOLE JUDGMENT
AND DISCRETION CONFLICTS WITH OR VIOLATES ANY APPLICABLE COURT OR GOVERNMENT
ORDER OR DECREE.
SECTION 8.7
INFRINGEMENT CLAIMS; OPPOSITIONS.
BMS AND PHARMACOPEIA SHALL PROMPTLY INFORM THE OTHER IN WRITING OF ANY WRITTEN
NOTICE TO IT OF ALLEGED INFRINGEMENT OR MISAPPROPRIATION, BASED ON THE RESEARCH,
DEVELOPMENT, MAKING, USING, IMPORTING, EXPORTING OR