THEREON AND SHALL TAKE SUCH COMMENTS INTO CONSIDERATION
IN THE APPLICATION FILED; (II) PROMPTLY FURNISH THE COMPANY WITH COPIES OF ALL
SUBSTANTIVE COMMUNICATIONS BETWEEN THE PURCHASER AND APPLICABLE PATENT OFFICES
RELATING TO SUCH PATENT APPLICATIONS, AND TAKE THE COMPANY'S COMMENTS AND
SUGGESTIONS INTO CONSIDERATION WHEN FRAMING RESPONSES AND SUBMISSIONS TO SUCH
PATENT OFFICES; (III) KEEP THE COMPANY ADVISED OF THE STATUS OF ACTUAL AND
PROSPECTIVE PATENT FILINGS INCLUDED IN THE LICENSED PATENT RIGHTS.
THE
PURCHASER SHALL GIVE THE COMPANY THE OPPORTUNITY TO PROVIDE COMMENTS UPON AND
MAKE REQUESTS OF THE PURCHASER CONCERNING THE PREPARATION, FILING, PROSECUTION,
PROTECTION AND MAINTENANCE OF
*CONFIDENTIAL TREATMENT REQUESTED
8
THOSE LICENSED PATENT RIGHTS CONSTITUTING PATENT APPLICATIONS, AND SHALL
CONSIDER SUCH COMMENTS AND REQUESTS IN GOOD FAITH; PROVIDED, HOWEVER, THAT FINAL
DECISION-MAKING AUTHORITY SHALL VEST IN THE PURCHASER.
(C)
COSTS AND EXPENSES.
EACH PARTY SHALL BEAR ITS OWN COSTS AND
EXPENSES IN PREPARING, FILING, PROSECUTING AND MAINTAINING LICENSED PATENT
RIGHTS AND OTHER FILINGS OR APPLICATIONS (INCLUDING REGULATORY FILINGS) ARISING
OUT OF THE PRODUCT INTELLECTUAL PROPERTY.
(D)
COOPERATION.
EACH PARTY AGREES TO COOPERATE WITH THE OTHER WITH
RESPECT TO THE FILING, PROSECUTION AND MAINTENANCE OF PATENTS, PATENT
APPLICATIONS AND REGULATORY FILINGS PURSUANT TO THIS SECTION 3.1, INCLUDING
WITHOUT LIMITATION:
(I)
THE EXECUTION OF ALL SUCH DOCUMENTS AND INSTRUMENTS AND THE
PERFORMANCE OF SUCH ACTS AS MAY BE REASONABLY NECESSARY IN ORDER TO PERMIT THE
OTHER PARTY TO FILE, PROSECUTE OR MAINTAIN PATENTS AND PATENT APPLICATIONS AS
PROVIDED FOR IN THIS SECTION 3.1;
(II)
MAKING ITS EMPLOYEES, AGENTS AND CONSULTANTS REASONABLY AVAILABLE
TO THE OTHER PARTY (OR TO THE OTHER PARTY'S AUTHORIZED ATTORNEYS, AGENTS OR
REPRESENTATIVES), TO THE EXTENT REASONABLY NECESSARY TO ENABLE THE PROSECUTING
PARTY TO PREPARE, FILE, PROSECUTE AND MAINTAIN PATENTS AND PATENT APPLICATIONS
AS PROVIDED FOR IN THIS SECTION 3.1;
(III)
PROVIDING AVAILABLE DATA, RECORDS AND INFORMATION TO SUPPORT
PREPARATION AND PROSECUTION OF PATENT APPLICATIONS; AND
(IV)
PROVIDING AVAILABLE DATA, RECORDS, INFORMATION AND PERSONNEL TO
SUPPORT PREPARATION OF ALL REGULATORY FILINGS AND CONSULTANT WITH REGULATORY
AUTHORITIES RELATED THERETO.
SECTION 3.2
THIRD PARTY INFRINGEMENT.
(A)
NOTIFICATIONS OF COMPETITIVE INFRINGEMENT.
EACH PARTY AGREES TO
NOTIFY THE OTHER PARTY WHEN IT BECOMES AWARE OF THE REASONABLE PROBABILITY OF
INFRINGEMENT OF THE LICENSED PATENT RIGHTS ("COMPETITIVE INFRINGEMENT").
(B)
INFRINGEMENT ACTION.
THE PURCHASER SHALL HAVE THE SOLE RIGHT, BUT
NO OBLIGATION, TO INSTITUTE AN INFRINGEMENT SUIT OR TAKE OTHER APPROPRIATE
ACTION THAT IT BELIEVES IS REASONABLY REQUIRED TO PROTECT THE LICENSED PATENT
RIGHTS OR THE PRODUCT INTELLECTUAL PROPERTY FROM SUCH COMPETITIVE INFRINGEMENT.
THE PURCHASER SHALL BE PERMITTED TO ACT, OR CHOOSE NOT TO ACT, SUBJECT TO ITS
SOLE DISCRETION, INCLUDING, IF IT SO CHOOSES, TAKING NO ACTION WITH RESPECT TO
COMPETITIVE INFRINGEMENT OR SETTLING ANY SUCH COMPETITIVE INFRINGEMENT IN ITS
SOLE DISCRETION.
SUBJECT TO SECTION 3.4, THE EXPENSES OF ANY SUIT OR SUITS THAT
THE PURCHASER ELECTS TO BRING SHALL BE PAID FOR ENTIRELY BY THE PURCHASER.
(I)
RECOVERIES.
THE PURCHASER SHALL HAVE THE SOLE RIGHT TO ANY
RECOVERY OBTAINED AS A RESULT OF ANY PROCEEDING DESCRIBED IN