THE PROSECUTION AND MAINTENANCE OF SUCH PATENTS SHALL BE
SHARED BY NEORX AND ANORMED ON A BASIS TO BE MUTUALLY AGREED TO BY THE PARTIES
TAKING INTO ACCOUNT THE RIGHTS IN SUCH ANORMED PATENT GRANTED TO NEORX AND THE
THIRD PARTIES RESPECTIVELY.
IF THE PARTIES CANNOT AGREE ON AN ALLOCATION OF THE
COSTS OF THE PROSECUTION AND MAINTENANCE OF SUCH ANORMED PATENT, THE DISPUTE
SHALL BE RESOLVED IN ACCORDANCE WITH SECTION 19.2.
10.5
THIRD PARTY CLAIMS OF INFRINGEMENT
In the event that any Third Party brings a claim against AnorMED or NeoRx or any
of their respective Affiliates (for this purpose, "control" in the definition of
Affiliate shall mean direct or indirect beneficial ownership of [*] interest in
the income of a Person or such other relationship as, in fact, constitutes
actual control) that the manufacture, use, sale, distribution, marketing or
importation of a Licensed Compound or a Licensed Product infringes rights in
Intellectual Property owned or otherwise controlled by such Third Party (an
"Infringement Suit"), the following shall apply:
(A)
THE PARTY RECEIVING A CLAIM, OR LEARNS OF
THE THREAT OF SUCH A CLAIM, SHALL GIVE THE OTHER PARTY PROMPT WRITTEN NOTICE
DETAILING AS MANY FACTS AS POSSIBLE CONCERNING THE CLAIM;
(B)
NEORX, IN ITS SOLE DISCRETION, SHALL HAVE
THE FIRST RIGHT, BUT NOT AN OBLIGATION, TO DEFEND AGAINST THE INFRINGEMENT SUIT;
(C)
IF NEORX DOES NOT TAKE STEPS TO DEFEND
AGAINST THE INFRINGEMENT SUIT WITHIN 90 DAYS AFTER THE DATE THAT NOTICE THEREOF
WAS RECEIVED FROM OR DELIVERED TO ANORMED, ANORMED MAY TAKE SUCH LEGALLY
PERMISSIBLE ACTION AS IT DEEMS NECESSARY OR APPROPRIATE TO DEFEND AGAINST THE
INFRINGEMENT SUIT, BUT SHALL NOT BE OBLIGATED TO DO SO;
(D)
THE PARTY DEFENDING AGAINST THE INFRINGEMENT
SUIT (IN THIS SECTION, THE "LITIGATING PARTY") SHALL HAVE THE RIGHT TO CONTROL
SUCH LITIGATION AND SHALL BEAR ALL LEGAL EXPENSES (INCLUDING COURT COSTS AND
LEGAL FEES), BUT IT SHALL HAVE NO RIGHT TO SETTLE ANY DISPUTE IN ANY MANNER
WHICH WOULD ABRIDGE THE RIGHTS OF THE OTHER PARTY UNDER THIS AGREEMENT.
BY WAY
OF EXAMPLE AND NOT BY WAY OF LIMITATION, NEITHER PARTY MAY STIPULATE OR
17
ADMIT TO THE INVALIDITY OR UNENFORCEABILITY OF ANY RIGHT IN INTELLECTUAL
PROPERTY.
BEFORE ANY ACTION IS TAKEN BY EITHER PARTY WHICH COULD ABRIDGE THE
RIGHTS OF THE OTHER PARTY HEREUNDER, THE PARTIES AGREE TO, IN GOOD FAITH,
CONSULT WITH EACH OTHER WITH A GOAL OF ADOPTING A MUTUALLY SATISFACTORY
POSITION;
(E)
THE LITIGATING PARTY SHALL KEEP THE OTHER
PARTY FULLY INFORMED OF THE ACTIONS AND POSITIONS TAKEN OR PROPOSED TO BE TAKEN
BY THE LITIGATING PARTY AND THE ACTIONS AND POSITIONS TAKEN BY ALL OTHER PARTIES
TO SUCH LITIGATION; AND
(F)
IN THE EVENT THAT NEORX DEFENDS AGAINST
THE INFRINGEMENT SUIT, ANORMED MAY ELECT TO PARTICIPATE FORMALLY IN THE
INFRINGEMENT SUIT TO THE EXTENT THAT THE COURT MAY PERMIT, PROVIDED THAT ANY
ADDITIONAL EXPENSES GENERATED BY ANORMED'S FORMAL PARTICIPATION SHALL BE PAID BY
ANORMED.
10.6
INFRINGEMENT BY THIRD PARTIES.
In the event that either party