PARTY SHALL HAVE THE RIGHT TO MAKE AN ELECTION UNDER THE COOPERATIVE
RESEARCH AND TECHNOLOGY ENHANCEMENT ACT OF 2004, 35 U.S.C. 103(C)(2)-(C)(3) (THE
"CREATE ACT") WHEN EXERCISING ITS RIGHTS UNDER THIS ARTICLE 8 WITHOUT THE PRIOR
WRITTEN CONSENT OF THE OTHER PARTY, WHICH SHALL NOT BE UNREASONABLY WITHHELD,
CONDITIONED OR DELAYED.
WITH RESPECT TO ANY SUCH PERMITTED ELECTION, THE
PARTIES SHALL USE REASONABLE EFFORTS TO COOPERATE AND COORDINATE THEIR
ACTIVITIES WITH RESPECT TO ANY SUBMISSIONS, FILINGS OR OTHER ACTIVITIES IN
SUPPORT THEREOF.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS A
"JOINT RESEARCH AGREEMENT" AS DEFINED IN THE CREATE ACT.
8.9
OBLIGATIONS TO THIRD PARTIES.
NOTWITHSTANDING ANY OF THE FOREGOING, EACH
PARTY'S RIGHTS AND OBLIGATIONS WITH RESPECT TO REGULUS TECHNOLOGY UNDER THIS
ARTICLE 8 SHALL BE SUBJECT TO THIRD PARTY AND PARENT-ORIGINATED RIGHTS AND
OBLIGATIONS.
8.10
ADDITIONAL RIGHT.
NOTWITHSTANDING ANY PROVISION OF THIS ARTICLE 8, ISIS
WILL ACTIVELY PARTICIPATE IN THE PLANNING AND CONDUCT OF ANY ENFORCEMENT OF
REGULUS TECHNOLOGY AND WILL TAKE THE LEAD OF SUCH ENFORCEMENT SOLELY TO THE
EXTENT THAT THE SCOPE OR VALIDITY OF ANY PARENT COMPANY PATENT CONTROLLED BY
ISIS AND COVERING A [***] CHEMICAL MODIFICATION IS AT RISK.
SUCH PARENT COMPANY
PATENTS CONTROLLED BY ISIS AS OF THE EFFECTIVE DATE ARE SET FORTH ON SCHEDULE
8.10.
ARTICLE 9
CONFIDENTIALITY
9.1
CONFIDENTIALITY; EXCEPTIONS.
EXCEPT TO THE EXTENT EXPRESSLY AUTHORIZED BY
THIS AGREEMENT OR OTHERWISE AGREED IN WRITING, THE PARTIES AGREE THAT, DURING
THE AGREEMENT TERM AND FOR [***] YEARS THEREAFTER, THE RECEIVING PARTY (THE
"RECEIVING PARTY"), ITS AFFILIATES AND, WITH RESPECT TO REGULUS, ITS PARENT
COMPANIES, SHALL KEEP CONFIDENTIAL AND SHALL NOT PUBLISH OR OTHERWISE DISCLOSE
OR USE FOR ANY PURPOSE OTHER THAN AS PROVIDED FOR IN THIS AGREEMENT ANY KNOW-HOW
OR OTHER CONFIDENTIAL AND PROPRIETARY INFORMATION AND MATERIALS, PATENTABLE OR
OTHERWISE, IN ANY FORM (WRITTEN, ORAL, PHOTOGRAPHIC, ELECTRONIC, MAGNETIC, OR
OTHERWISE) WHICH IS DISCLOSED TO IT BY THE OTHER PARTY (THE "DISCLOSING PARTY"),
ITS AFFILIATES OR, WITH RESPECT TO REGULUS, ITS PARENT COMPANIES OR OTHERWISE
RECEIVED OR ACCESSED BY A RECEIVING PARTY IN THE COURSE OF PERFORMING ITS
OBLIGATIONS OR EXERCISING ITS RIGHTS UNDER THIS AGREEMENT, INCLUDING, BUT NOT
LIMITED TO TRADE SECRETS, KNOW-HOW, INVENTIONS OR DISCOVERIES, PROPRIETARY
INFORMATION,
86
FORMULAE, PROCESSES, TECHNIQUES AND INFORMATION RELATING TO THE PAST, PRESENT
AND FUTURE MARKETING, FINANCIAL, AND RESEARCH AND DEVELOPMENT ACTIVITIES OF ANY
PRODUCT OR POTENTIAL PRODUCT OR USEFUL TECHNOLOGY OF THE DISCLOSING PARTY, ITS
AFFILIATES OR PARENT COMPANIES AND THE PRICING THEREOF (COLLECTIVELY,
"CONFIDENTIAL INFORMATION"), EXCEPT TO THE EXTENT THAT IT CAN BE ESTABLISHED BY
THE RECEIVING PARTY THAT SUCH CONFIDENTIAL INFORMATION:
9.1.1
WAS IN THE LAWFUL KNOWLEDGE AND POSSESSION OF THE RECEIVING PARTY,
ITS AFFILIATES OR PARENT COMPANIES PRIOR TO THE TIME IT WAS DISCLOSED TO, OR
LEARNED BY, THE RECEIVING PARTY, ITS AFFILIATES OR PARENT COMPANIES, OR WAS
OTHERWISE DEVELOPED INDEPENDENTLY BY THE RECEIVING PARTY, ITS AFFILIATES OR
PARENT COMPANIES, AS EVIDENCED BY WRITTEN RECORDS KEPT IN THE ORDINARY COURSE OF
BUSINESS, OR OTHER DOCUMENTARY PROOF OF ACTUAL USE BY THE