PROGRAM PATENTS AND
JOINT PATENTS.
SECTION 8.3
PATENT TERM EXTENSION.
PHARMACOPEIA AND BMS SHALL EACH COOPERATE WITH ONE ANOTHER AND SHALL USE
COMMERCIALLY REASONABLE EFFORTS IN OBTAINING PATENT TERM EXTENSIONS (INCLUDING
WITHOUT LIMITATION, ANY PEDIATRIC EXCLUSIVITY EXTENSIONS AS MAY BE AVAILABLE) OR
SUPPLEMENTAL PROTECTION CERTIFICATES OR THEIR EQUIVALENTS IN ANY COUNTRY WITH
RESPECT TO PATENTS COVERING PRODUCTS.
IF ELECTIONS WITH RESPECT TO OBTAINING
SUCH PATENT TERM EXTENSIONS OR SUPPLEMENTAL PROTECTION ARE TO BE MADE, BMS SHALL
HAVE THE RIGHT TO MAKE SUCH ELECTION, PROVIDED THAT SUCH ELECTION WILL BE MADE
IN ACCORDANCE WITH APPLICABLE LAW SO AS TO MAXIMIZE THE PERIOD OF MARKETING
EXCLUSIVITY FOR SUCH PRODUCT.
SECTION 8.4
ENFORCEMENT OF PATENTS
8.4.1
ENFORCEMENT OF SOLELY OWNED PATENTS.
EXCEPT AS SET
FORTH IN SECTION 8.4.2 BELOW FOR THOSE PHARMACOPEIA PROGRAM PATENTS EXCLUSIVELY
LICENSED TO BMS PURSUANT TO SECTION 2.2 AND JOINT PATENTS, EACH PARTY WILL HAVE
THE SOLE RIGHT AND RESPONSIBILITY TO ENFORCE, AT ITS DISCRETION, ANY PATENTS
SOLELY OWNED BY SUCH PARTY.
FOR PURPOSES OF THE PRECEDING SENTENCE, ALL
PHARMACOPEIA PROGRAM PATENTS ASSIGNED TO BMS PURSUANT TO SECTION 2.1 SHALL BE
UNDERSTOOD TO BE SOLELY OWNED BY BMS.
8.4.2
ENFORCEMENT OF PHARMACOPEIA PROGRAM PATENTS AND JOINT
PATENTS LICENSED TO BMS.
A.
ENFORCEMENT BY BMS.
IN THE EVENT THAT PHARMACOPEIA OR BMS
BECOMES AWARE OF A SUSPECTED INFRINGEMENT OF ANY PHARMACOPEIA PROGRAM PATENT
EXCLUSIVELY LICENSED TO BMS
19
PURSUANT TO SECTION 2.2 OR JOINT PATENT, OR ANY SUCH PHARMACOPEIA PROGRAM PATENT
OR JOINT PATENT IS CHALLENGED IN ANY ACTION OR PROCEEDING (OTHER THAN ANY
INTERFERENCES, REISSUE PROCEEDINGS, OPPOSITIONS OR REEXAMINATIONS, WHICH ARE
ADDRESSED ABOVE), SUCH PARTY SHALL NOTIFY THE OTHER PARTY PROMPTLY, AND
FOLLOWING SUCH NOTIFICATION, THE PARTIES SHALL CONFER.
BMS SHALL HAVE THE
RIGHT, BUT SHALL NOT BE OBLIGATED, TO DEFEND ANY SUCH ACTION OR PROCEEDING OR
BRING AN INFRINGEMENT ACTION WITH RESPECT TO SUCH INFRINGEMENT TO THE EXTENT
RELEVANT TO BMS'S EXCLUSIVE RIGHTS HEREUNDER AT ITS OWN EXPENSE, IN ITS OWN NAME
AND ENTIRELY UNDER ITS OWN DIRECTION AND CONTROL, OR SETTLE ANY SUCH ACTION,
PROCEEDING OR DISPUTE BY LICENSE (TO THE EXTENT SUCH SUBLICENSE IS PERMITTED
UNDER THIS AGREEMENT), SUBJECT TO THE FOLLOWING.
PHARMACOPEIA SHALL REASONABLY
ASSIST BMS IN ANY ACTION OR PROCEEDING BEING DEFENDED OR PROSECUTED IF SO
REQUESTED, AND SHALL LEND ITS NAME TO SUCH ACTIONS OR PROCEEDINGS IF REASONABLY
REQUESTED BY BMS OR REQUIRED BY APPLICABLE LAW.
BMS SHALL REIMBURSE
PHARMACOPEIA FOR THE DOCUMENTED OUT-OF-POCKET COSTS PHARMACOPEIA REASONABLY
INCURS IN PROVIDING SUCH ASSISTANCE REQUESTED BY BMS.
IN THE EVENT PHARMACOPEIA
IS A REQUIRED PARTY TO THE PROCEEDING OR ACTION, PHARMACOPEIA SHALL HAVE THE
RIGHT TO BE REPRESENTED BY ITS OWN COUNSEL (SUCH SELECTION TO BE SUBJECT TO
BMS'S APPROVAL, SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD), AND BMS SHALL
REIMBURSE PHARMACOPEIA FOR THE DOCUMENTED OUT-OF-POCKET COSTS PHARMACOPEIA
REASONABLY INCURS THAT ARE REASONABLY RELATED TO THE PROCEEDING OR ACTION,
INCLUDING ATTORNEYS' FEES; PROVIDED THAT BMS SHALL RETAIN OVERALL RESPONSIBILITY
FOR THE PROSECUTION OF SUCH ACTION OR PROCEEDING IN SUCH EVENT.
IN THE EVENT
THAT