DEFENSE OF ANY SUCH CLAIM, SUIT OR PROCEEDING, AT ITS OWN
EXPENSE, USING COUNSEL OF ITS OWN CHOICE;
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PROVIDED, HOWEVER, IT SHALL NOT ENTER INTO ANY SETTLEMENT WHICH ADMITS OR
CONCEDES THAT ANY ASPECT OF (I) THE SCHERING TECHNOLOGY OR COLLABORATION
TECHNOLOGY IN THE CASE OF PHARMACOPEIA, AND (II) THE PHARMACOPEIA TECHNOLOGY OR
COLLABORATION TECHNOLOGY IN THE CASE OF SCHERING, IS INVALID OR UNENFORCEABLE
WITHOUT THE PRIOR WRITTEN CONSENT OF SUCH OTHER PARTY.
THE PARTY SUBJECT TO THE
CLAIM SHALL KEEP THE OTHER PARTY HERETO REASONABLY INFORMED OF ALL MATERIAL
DEVELOPMENTS IN CONNECTION WITH ANY SUCH CLAIM, SUIT OR PROCEEDING.
6.7
CERTIFICATION UNDER DRUG PRICE COMPETITION
AND PATENT RESTORATION ACT.
PHARMACOPEIA AND SCHERING EACH SHALL IMMEDIATELY
GIVE WRITTEN NOTICE TO THE OTHER OF ANY CERTIFICATION OF WHICH THEY BECOME AWARE
FILED PURSUANT TO 21 U.S.C.§§355(B)(2)(A)(IV) AND 355(J)(2)(A)(VII) CLAIMING
THAT COLLABORATION PATENT RIGHTS DO NOT COVER THE USE OR SALE OF ANY PRODUCT(S)
EQUIVALENT TO AN EXISTING AGREEMENT PRODUCT(S) BY A THIRD PARTY.
SCHERING SHALL
HAVE THE RIGHT TO BRING AN INFRINGEMENT ACTION, IN ITS SOLE DISCRETION AND AT
ITS OWN EXPENSE, IN ITS OWN NAME AND/OR IN THE NAME OF PHARMACOPEIA, SUBJECT TO
SECTION 6.5 ABOVE.
THE PROVISIONS OF SECTION 6.5.4 SHALL APPLY TO ANY SUCH
INFRINGEMENT ACTION.
6.8
PATENT TERM RESTORATION.
THE PARTIES HERETO
SHALL GIVE REASONABLE COOPERATION TO EACH OTHER IN OBTAINING PATENT TERM
RESTORATION OR SUPPLEMENTAL PROTECTION CERTIFICATES OR THEIR EQUIVALENTS IN ANY
COUNTRY IN THE TERRITORY WHERE APPLICABLE TO THE COLLABORATION TECHNOLOGY.
ARTICLE VII
CONFIDENTIALITY
7.1
CONFIDENTIAL INFORMATION.
EXCEPT AS
EXPRESSLY PROVIDED HEREIN, THE PARTIES AGREE THAT, * THE RECEIVING PARTY SHALL
NOT DISCLOSE AND EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 7, SHALL NOT USE
FOR ANY PURPOSE ANY CONFIDENTIAL INFORMATION ("CONFIDENTIAL INFORMATION")
FURNISHED TO IT BY THE DISCLOSING PARTY HERETO PURSUANT TO THIS AGREEMENT EXCEPT
TO THE EXTENT THAT IT CAN BE ESTABLISHED BY THE RECEIVING PARTY BY COMPETENT
PROOF THAT SUCH INFORMATION:
(I)
WAS ALREADY KNOWN TO THE RECEIVING PARTY, OTHER
THAN UNDER AN OBLIGATION OF CONFIDENTIALITY, AT THE TIME OF DISCLOSURE;
(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)
BECAME GENERALLY AVAILABLE TO THE PUBLIC OR OTHERWISE
PART OF THE PUBLIC DOMAIN AFTER ITS DISCLOSURE AND OTHER THAN THROUGH ANY ACT OR
OMISSION OF THE RECEIVING PARTY IN BREACH OF THIS AGREEMENT;
(IV)
WAS INDEPENDENTLY DEVELOPED BY THE RECEIVING PARTY AS
DEMONSTRATED BY DOCUMENTED EVIDENCE PREPARED CONTEMPORANEOUSLY WITH SUCH
INDEPENDENT DEVELOPMENT; OR
(V)
WAS SUBSEQUENTLY LAWFULLY DISCLOSED TO THE RECEIVING
PARTY, OTHER THAN UNDER A DUTY OF CONFIDENTIALITY, BY A THIRD PARTY THAT HAD THE
RIGHT TO MAKE SUCH DISCLOSURE.
7.2
PERMITTED USE AND DISCLOSURES.
EACH PARTY
HERETO MAY USE OR DISCLOSE CONFIDENTIAL INFORMATION DISCLOSED TO IT BY THE OTHER
PARTY TO THE EXTENT SUCH INFORMATION IS INCLUDED IN THE PHARMACOPEIA TECHNOLOGY,
SCHERING TECHNOLOGY OR COLLABORATION TECHNOLOGY, AS THE CASE MAY BE, AND TO THE
EXTENT (I) SUCH USE OR DISCLOSURE IS REASONABLY