AFTER THE EFFECTIVE DATE DURING THE DEVELOPMENT
PERIOD; AND (II) THE NEW SOFTWARE. NOTWITHSTANDING THE FOREGOING, CYBERHEART
IMPROVEMENTS SHALL EXCLUDE (1) ANY IMPROVEMENTS TO THE CYBERKNIFE SYSTEM (OTHER
THAN THE NEW SOFTWARE) THAT ARE USEFUL IN THE ACCURAY FIELD AND (2) ANY
TECHNOLOGY (OTHER THAN THE NEW SOFTWARE), CONCEIVED OR CREATED BY OR ON BEHALF
OF ACCURAY, ITS AFFILIATES, OR ANY OF THEIR CONTRACTORS OR LICENSORS, TO THE
EXTENT THAT SUCH TECHNOLOGY IS NOT AN IMPROVEMENT DERIVED DURING THE DEVELOPMENT
PERIOD FROM A CYBERHEART PRODUCT, OR A PORTION OF A CYBERHEART PRODUCT THAT WAS
3
DISCLOSED BY CYBERHEART TO ACCURAY
PRIOR TO THE TIME AT WHICH THE IMPROVEMENT
WAS FIRST CONCEIVED OR CREATED.
1.12
"CYBERHEART LIAISON" HAS THE MEANING ASSIGNED TO SUCH TERM UNDER
SECTION 4.2.3.
1.13
"CYBERHEART MODULE" MEANS ANY AND ALL HARDWARE, SOFTWARE, OTHER
MODIFICATIONS, AND TECHNOLOGY THAT ARE ADDED TO OR USED WITH, OR THAT ALTER, ANY
CYBERKNIFE SYSTEM - WHETHER OR NOT SUCH HARDWARE, SOFTWARE, OTHER MODIFICATION, OR
TECHNOLOGY IS AN IMPROVEMENT OF A CYBERKNIFE SYSTEM, OR PORTION THEREOF, AND
WHETHER OR NOT IT IS DEVELOPED THROUGH THE EXERCISE OF RIGHTS GRANTED TO
CYBERHEART IN THIS AGREEMENT - SO THAT SUCH MODIFIED CYBERKNIFE SYSTEM, IN
COMBINATION WITH SUCH HARDWARE, SOFTWARE, OTHER MODIFICATIONS, AND TECHNOLOGY,
IS CAPABLE OF PERFORMING APPLICATIONS SOLELY WITHIN THE CYBERHEART FIELD.
FOR
CLARITY, THE CYBERHEART MODULE INCLUDES ALL PORTIONS OF ANY CYBERHEART SYSTEM
THAT ARE WITHIN THE SCOPE OF THE FOREGOING.
1.14
"CYBERHEART PATENTS" MEANS (I) THE PATENTS SET FORTH IN EXHIBIT C;
(II) ALL PATENTS TO WHICH THE PATENTS IN (I), ABOVE CLAIM PRIORITY; (III) ALL
PATENTS CLAIMING PRIORITY TO ANY OF THE PATENTS IDENTIFIED IN (I) OR (II),
ABOVE; (IV) ANY AND ALL OTHER PATENTS CLAIMING CYBERHEART TECHNOLOGY, CYBERHEART
PRODUCTS, OR AN ACCURAY IMPROVEMENT (EXCEPT TO THE EXTENT THE PATENT IS ASSIGNED
TO ACCURAY PURSUANT TO SECTION 9.1.2), OR ANY PORTION THEREOF; (V) ANY AND ALL
OTHER PATENT CLAIMS CLAIMING CYBERHEART PRODUCTS (OR ANY PORTION THEREOF) THAT
ARE USEFUL IN THE ACCURAY FIELD; AND (VI) ANY AND ALL OTHER PATENTS THAT ARE
USEFUL IN THE ACCURAY FIELD OR FOR ANY MAKING, USE, SALE, OFFER FOR SALE,
IMPORTATION, OR OTHER EXPLOITATION OR DISPOSITION OF ANY CYBERKNIFE SYSTEM; IN
EACH CASE IN ANY COUNTRY OR JURISDICTION AND, IN THE CASE OF (IV), (V) AND (VI),
ABOVE, TO THE EXTENT OWNED OR OTHERWISE CONTROLLED BY CYBERHEART OR ITS
CONTROLLED AFFILIATES, INCLUDING WITHOUT LIMITATION BY ASSIGNMENT FROM ACCURAY
UNDER SECTION 9.1.3 (BUT OTHER THAN AS A RESULT OF ANY LICENSE FROM ACCURAY),
SUCH THAT CYBERHEART OR ITS CONTROLLED AFFILIATE MAY GRANT TO ACCURAY THE
LICENSES HEREUNDER, ON THE EFFECTIVE DATE OR AT ANY OTHER TIME PRIOR TO THE IP
CUTOFF DATE.
NOTWITHSTANDING THE FOREGOING, THE CYBERHEART PATENTS SHALL
EXCLUDE THE ACCURAY PATENTS.
1.15
"CYBERHEART PRODUCT" MEANS EACH OF THE CYBERHEART MODULE AND THE
CYBERHEART SYSTEM.
1.16
"CYBERHEART SOFTWARE" HAS THE MEANING ASSIGNED TO SUCH TERM UNDER
SECTION .
1.17
"CYBERHEART SYSTEM" MEANS A STEREOTACTIC RADIOSURGERY SYSTEM THAT
IS DESIGNED OR DEVELOPED BY OR ON BEHALF OF CYBERHEART OR