RESEARCH AND DEVELOPMENT DATA, FORMULAE, IDEAS, KNOW-HOW, RESEARCH,
ANALYSIS, EXPERIMENTS, PROPRIETARY PROCESSES AND PROCEDURES, ALGORITHMS, MODELS
AND METHODOLOGIES, TECHNICAL INFORMATION, TECHNOLOGIES, TECHNIQUES, INNOVATIONS,
CREATIONS, CONCEPTS, DESIGNS, INDUSTRIAL DESIGNS, PROCEDURES, TRADE SECRETS AND
CONFIDENTIAL INFORMATION, AND RIGHTS IN ANY DOMESTIC OR FOREIGN JURISDICTION TO
LIMIT THE USE OR DISCLOSURE THEREOF BY ANY PERSON; (IV) WRITINGS AND OTHER WORKS
OF AUTHORSHIP OF ANY TYPE (INCLUDING PATTERNS, DRAWINGS, DATA, THE CONTENT
CONTAINED ON ANY WEB SITE), WHETHER COPYRIGHTABLE OR NOT, IN ANY SUCH
JURISDICTION, AND ANY COPYRIGHTS AND MORAL RIGHTS THEREIN ("COPYRIGHTS");
(V) COMPUTER SOFTWARE (WHETHER IN SOURCE CODE OR OBJECT CODE FORM), DATABASES,
COMPILATIONS, AND DATA; AND (VI) REGISTRATIONS OR APPLICATIONS FOR REGISTRATION
OF COPYRIGHTS IN ANY DOMESTIC OR FOREIGN JURISDICTION, AND ANY RENEWALS OR
EXTENSIONS THEREOF; AND (VII) ANY SIMILAR INTELLECTUAL PROPERTY OR PROPRIETARY
RIGHTS.
(T)
"IRREVOCABLE LICENSE FEE" MEANS THE TOTAL
AMOUNT OF TWENTY MILLION DOLLARS (US$20,000,000; I.E., THE SUM OF THE LICENSE
FEE AND THE THREE MILESTONE PAYMENTS), PAID TO PMII PURSUANT TO SECTION 7
HEREOF.
(U)
"KNOW-HOW" SHALL MEAN ALL DATA AND
INFORMATION OWNED BY, USED BY, OR HELD FOR USE BY OR ON BEHALF OF OR LICENSED TO
(OR OTHERWISE CONTROLLED BY) PMII OR A PMII AFFILIATE AND MAINTAINED IN
CONFIDENCE BY PMII OR A PMII AFFILIATE, INCLUDING ALL PROCESSES, PLANS, DESIGNS,
RESEARCH, OPERATING MANUALS, METHODS, COMPOUNDS, FORMULAE, DISCOVERIES,
DEVELOPMENTS, DESIGNS, DRAWINGS, TECHNOLOGY, TECHNIQUES, PROCEDURES,
SPECIFICATIONS, INVENTIONS, COMPUTER PROGRAMS, AND ANY OTHER SCIENTIFIC OR
TECHNICAL DATA OR INFORMATION CONCEIVED, MEMORIALIZED, DEVELOPED, AND/OR REDUCED
TO PRACTICE, IN EACH CASE WHETHER OR NOT PATENTABLE IN ANY JURISDICTION.
UNTIL
SUCH TIME AS ANY PARTICULAR PATENT HAS BEEN PUBLISHED IN ACCORDANCE WITH THE
TERMS OF A PATENT APPLICATION OR SUCH PATENT APPLICATION HAS BEEN PUBLISHED, THE
TERM "KNOW-HOW" SHALL BE DEEMED TO INCLUDE ALL INVENTIONS DISCLOSED IN SUCH
PATENT APPLICATION.
(V)
"LICENSED IP" SHALL MEAN, ONLY TO THE EXTENT
THAT THE IP IN SECTIONS 1.1(V)(I)-(IV) BELOW APPLIES TO LINEAR STAPLERS, OR
LINEAR CUTTERS, OR THEIR ASSOCIATED DRIVE OR CONTROL COMPONENTS, OR ANY
COMBINATION THEREOF:
(I)
(A) PATENT RIGHTS OWNED OR CONTROLLED BY
PMII OR ANY PMII AFFILIATE ON THE AGREEMENT DATE, INCLUDING WITHOUT LIMITATION
THOSE SET FORTH ON EXHIBIT 1.1(V) ATTACHED HERETO; (B) IMPROVEMENT PERIOD PATENT
RIGHTS OWNED OR CONTROLLED BY PMII OR ANY
4
PMII AFFILIATE; AND (C) PATENT RIGHTS TO NEW PMII IP (SUBJECT TO THE LIMITATION
SET FORTH IN CLAUSE (V) ABOVE, SUCH RIGHTS ARE HEREINAFTER COLLECTIVELY REFERRED
TO AS "LICENSED PATENT RIGHTS");
(II)
PMII FIELD KNOW-HOW;
(III)
NEW PMII IP (AS DEFINED IN SECTION 8.4); AND
(IV)
INTELLECTUAL PROPERTY AS DEFINED IN
SUBSECTIONS (III) - (VII) OF SECTION 1.1(S), THAT IS OWNED OR CONTROLLED BY PMII
OR ANY PMII AFFILIATE ON THE AGREEMENT DATE OR DURING THE IMPROVEMENT PERIOD.
(W)
"LICENSED MARKS" SHALL MEAN THE TRADE NAME AND
MARK "POWER MEDICAL INTERVENTIONS, INC."
(X)
"LIEN" SHALL MEAN ALL LIENS, PLEDGES,
CHARGES, MORTGAGES, ENCUMBRANCES, RESTRICTIONS, LICENSES, ADVERSE RIGHTS OR
CLAIMS, AND SECURITY INTERESTS OF ANY KIND OR NATURE WHATSOEVER.
(Y)
"LITIGATION MATTER" SHALL MEAN ANY CLAIM,
INVESTIGATION, ARBITRATION, GRIEVANCE,