UNEXPIRED PATENT WITHIN THE PATENT RIGHTS WHICH HAS NOT LAPSED, BECOME
ABANDONED OR BEEN HELD REVOKED, INVALID, OR UNENFORCEABLE BY A DECISION OF A
COURT OR ADMINISTRATIVE OR GOVERNMENT AUTHORITY OR AGENCY OF COMPETENT
JURISDICTION FROM WHICH NO APPEAL CAN BE OR HAS BEEN TAKEN WITHIN THE TIME
ALLOWED FOR SUCH APPEAL, AND WHICH HAS NOT BEEN ADMITTED TO BE INVALID OR
UNENFORCEABLE THROUGH REISSUE, DISCLAIMER OR OTHERWISE, OR A PENDING CLAIM OF
ANY PENDING APPLICATION WITHIN THE PATENT RIGHTS THAT HAS NOT BEEN CANCELLED OR
FINALLY REJECTED WITHOUT POSSIBILITY OF APPEAL OR FURTHER ACTION BEFORE THE
PATENT AUTHORITY REVIEWING SUCH CLAIM.
Additional terms may be defined throughout this Agreement.
ARTICLE 2 - LICENSE GRANT
2.1
LICENSE GRANT.
(A)
AVANT HEREBY GRANTS TO LICENSEE, AND
LICENSEE HEREBY ACCEPTS, SUBJECT TO THE TERMS AND CONDITIONS HEREOF, A
ROYALTY-BEARING, NON-EXCLUSIVE LICENSE (WITHOUT THE RIGHT TO SUBLICENSE, EXCEPT
AS PROVIDED IN SECTION 2.2) IN THE TERRITORY IN THE FIELD OF USE AND UNDER THE
PATENT RIGHTS TO (A) RESEARCH, DEVELOP, MAKE, HAVE MADE, USE, SELL, HAVE SOLD,
OFFER FOR SALE, HAVE OFFERED FOR SALE, IMPORT, AND EXPORT LICENSED PRODUCTS; AND
(B) RESEARCH, DEVELOP, USE, AND PRACTICE LICENSED PROCESSES ONLY FOR THE
PURPOSES OF MANUFACTURING OR HAVING MANUFACTURED THE LICENSED PRODUCTS.
(B)
AVANT HEREBY GRANTS TO LICENSEE, AND
LICENSEE HEREBY ACCEPTS, SUBJECT TO THE TERMS AND CONDITIONS HEREOF, A
ROYALTY-FREE, NON-EXCLUSIVE LICENSE (WITHOUT THE RIGHT TO SUBLICENSE) IN THE
TERRITORY TO CONDUCT PRECLINICAL RESEARCH AND/OR PRE-PHASE II CLINICAL TRIALS
(OR THE EQUIVALENT OF PRE-PHASE II CLINICAL TRIALS IN THE U.S. OR OTHER
COUNTRIES) INVOLVING THE USE OF LICENSED PRODUCTS IN INDICATIONS OUTSIDE OF THE
FIELD OF USE.
FOR PURPOSES OF THIS AGREEMENT, "PHASE II CLINICAL TRIAL" SHALL
HAVE THE GENERALLY ACCEPTED MEANING IN THE INDUSTRY, INCLUDING AS SET FORTH IN
THE U.S. GOVERNMENT CODE OF FEDERAL REGULATION, TITLE 21, VOLUME 5, REVISED AS
OF APRIL 1, 2003, WHICH STATES IN PERTINENT PART
2
"PHASE II INCLUDES THE CONTROLLED CLINICAL STUDIES CONDUCTED TO EVALUATE THE
EFFECTIVENESS OF THE DRUG FOR A PARTICULAR INDICATION IN PATIENTS WITH THE
DISEASE OR CONDITION UNDER STUDY AND TO DETERMINE THE COMMON SHORT-TERM SIDE
EFFECTS AND RISKS ASSOCIATED WITH THE DRUG."
2.2
SUBLICENSES.
LICENSEE SHALL HAVE THE RIGHT
TO GRANT SUBLICENSES OF THE RIGHTS SET FORTH IN SECTION 2.1(A) ABOVE ONLY TO
THIRD PARTIES WITH WHICH LICENSEE HAS A WRITTEN AGREEMENT UNDER WHICH LICENSEE
AND SUCH THIRD PARTY HAVE AGREED TO (A) COLLABORATE ON THE RESEARCH AND
DEVELOPMENT OF LICENSED PRODUCTS AND/OR (B) MARKET, PROMOTE AND/OR SELL (WHETHER
SOLELY BY SUCH THIRD PARTY OR JOINTLY BY SUCH THIRD PARTY AND LICENSEE) LICENSED
PRODUCTS (EACH SUCH SUBLICENSEE, WHETHER UNDER SUB-CLAUSE (A) OR SUB-CLAUSE (B)
OF THIS SECTION 2.2, A "COLLABORATOR" AND EACH SUCH WRITTEN AGREEMENT, A
"COLLABORATION AGREEMENT").
ARTICLE 3- LICENSEE OBLIGATIONS RELATING TO COMMERCIALIZATION
3.1
LICENSEE SHALL USE ITS COMMERCIALLY
REASONABLE EFFORTS TO BRING THE LICENSED PRODUCTS TO MARKET IN THE FIELD OF USE
THROUGH AN ACTIVE AND DILIGENT PROGRAM FOR EXPLOITATION OF THE PATENT RIGHTS AND
TO CONTINUE