RETAINED BY
ARRAY.
NEITHER PARTY NOR ITS AFFILIATES WILL ENTER INTO A SETTLEMENT OR CONSENT
JUDGMENT OR OTHER VOLUNTARY FINAL DISPOSITION OF A SUIT UNDER THIS SECTION 8.3.2
WITHOUT THE CONSENT OF THE OTHER PARTY (WHICH CONSENT SHALL NOT BE UNREASONABLY
CONDITIONED, WITHHELD OR DELAYED), UNLESS SUCH SETTLEMENT, CONSENT JUDGMENT OR
OTHER DISPOSITION DOES NOT ADMIT THE INVALIDITY OR UNENFORCEABILITY OF ANY
PATENT WITHIN THE LICENSED TECHNOLOGY AND PROVIDED FURTHER, THAT ANY RIGHTS TO
CONTINUE THE INFRINGING ACTIVITY IN SUCH SETTLEMENT, CONSENT JUDGMENT OR OTHER
DISPOSITION SHALL BE LIMITED TO THOSE RIGHTS THAT THE GRANTING PARTY (AND ITS
AFFILIATES) OTHERWISE HAS THE RIGHT TO GRANT TO A THIRD PARTY.
8.4
PATENT TERM EXTENSIONS.
THE PARTIES WILL REASONABLY DISCUSS FOR WHICH
PATENTS RELATED TO A PRODUCT TO PURSUE PATENT TERM EXTENSION.
ARRAY WILL
PROVIDE REASONABLE ASSISTANCE TO AMGEN IN CONNECTION WITH OBTAINING SUPPLEMENTAL
PROTECTION CERTIFICATES FOR PATENTS WITHIN THE LICENSED TECHNOLOGY.
TO THE
EXTENT REASONABLY AND LEGALLY REQUIRED TO OBTAIN ANY SUCH SUPPLEMENTAL
PROTECTION CERTIFICATES IN A PARTICULAR COUNTRY, ARRAY WILL MAKE AVAILABLE TO
AMGEN COPIES OF ALL NECESSARY DOCUMENTATION TO ENABLE AMGEN TO USE THE SAME FOR
THE PURPOSE OF OBTAINING THE SUPPLEMENTAL PROTECTION CERTIFICATES IN SUCH
COUNTRY.
8.5
PATENT MARKING.
AT ARRAY'S REQUEST, AMGEN SHALL MARK (OR CAUSED TO BE
MARKED) ALL PRODUCTS MARKETED AND SOLD HEREUNDER WITH APPROPRIATE PATENT NUMBERS
OR INDICIA TO THE EXTENT PERMITTED BY LAW, IN THOSE COUNTRIES IN WHICH SUCH
NOTICES IMPACT RECOVERIES OF DAMAGES OR REMEDIES AVAILABLE WITH RESPECT TO
INFRINGEMENTS OF PATENTS.
ARTICLE IX - CONFIDENTIALITY
9.1
CONFIDENTIALITY; EXCEPTIONS.
EXCEPT TO THE EXTENT EXPRESSLY
AUTHORIZED BY THIS AGREEMENT OR OTHERWISE AGREED IN WRITING, THE PARTIES HEREBY
AGREE THAT, DURING THE TERM AND FOR FIVE (5) YEARS THEREAFTER, THE RECEIVING
PARTY AND ITS AFFILIATES (HEREINAFTER REFERRED TO IN THIS SECTION 9.1 AS THE
"RECEIVING PARTY") SHALL KEEP CONFIDENTIAL AND SHALL NOT PUBLISH OR OTHERWISE
DISCLOSE OR USE FOR ANY PURPOSE OTHER THAN AS PROVIDED FOR IN THIS AGREEMENT ANY
INFORMATION AND OTHER CONFIDENTIAL AND PROPRIETARY INFORMATION AND MATERIALS
FURNISHED TO IT BY THE OTHER PARTY OR ITS AFFILIATE (HEREINAFTER REFERRED TO IN
THIS SECTION 9.1 AS THE "DISCLOSING PARTY") PURSUANT TO THIS AGREEMENT
(COLLECTIVELY, "CONFIDENTIAL INFORMATION"), EXCEPT TO THE EXTENT THAT IT CAN BE
ESTABLISHED BY THE RECEIVING PARTY THAT SUCH CONFIDENTIAL INFORMATION:
- 46 -
[ * ] = Confidential treatment of certain confidential information contained in
this document, marked by brackets, is being sought pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
(I)
WAS IN THE LAWFUL KNOWLEDGE AND POSSESSION OF THE RECEIVING PARTY
PRIOR TO THE TIME IT WAS DISCLOSED TO, OR LEARNED BY, THE RECEIVING PARTY, OR
WAS OTHERWISE DEVELOPED INDEPENDENTLY BY THE RECEIVING PARTY, AS EVIDENCED BY
WRITTEN RECORDS KEPT IN THE ORDINARY COURSE OF BUSINESS, OR OTHER DOCUMENTARY
PROOF OF ACTUAL USE BY THE RECEIVING PARTY;
(II)
WAS GENERALLY AVAILABLE TO THE PUBLIC OR OTHERWISE PART OF THE PUBLIC
DOMAIN AT THE TIME OF ITS DISCLOSURE TO THE RECEIVING PARTY;
(III)