FAITH AND
REASONABLE DISCRETION IN EXERCISING ITS DUTIES HEREUNDER.
NOTWITHSTANDING THE
FOREGOING, ALL DECISIONS WITH RESPECT TO PATENTS AND INFRINGEMENT SHALL BE MADE
BY ASSIGNEE, IN ASSIGNEE'S SOLE DISCRETION.
6.2
PATENT SUPPORT AND PROTECTION.
ASSIGNEE
MUST PROVIDE FUNDS FOR ALL APPROPRIATE PATENT PROTECTION (IN ASSIGNEE'S SOLE BUT
REASONABLE DISCRETION) AND SUPPORT RELATED EXPENSES, INCLUDING THE COST OF
RETAINING PATENT COUNSEL WITH RESPECT TO THE INVENTORS PATENTS AND THE COST OF
MAKING ALL NECESSARY PATENT FILINGS, SO LONG AS THIS AGREEMENT IS IN EFFECT.
ASSIGNEE SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO SELECT PRIMARY PATENT
COUNSEL FOR THE INVENTORS PATENTS.
6.3
FILING, PROSECUTING AND MAINTAINING
PATENTS.
ASSIGNEE SHALL HAVE SOLE RESPONSIBILITY FOR FILING, PROSECUTING AND
MAINTAINING ALL U.S. AND FOREIGN PATENT APPLICATIONS AND PATENTS ISSUING THEREON
FOR ANY INVENTORS PATENTS.
ASSIGNEE MAY PROVIDE ASSIGNORS WITH ALL RELEVANT
DOCUMENTATION (INCLUDING ANY DRAFT APPLICATIONS, OFFICIAL PAPERS FROM ANY PATENT
OFFICE REQUIRING A RESPONSE, AND ANY PROPOSED RESPONSE THERETO) FOR ANY PATENT
APPLICATION OR PATENT CLAIMING INVENTORS PATENTS, AND ASSIGNORS SHALL COOPERATE
AND PROVIDE SUCH ASSISTANCE AS ASSIGNEE REASONABLY REQUESTS IN RELATION TO
FILING, PROSECUTING AND MAINTAINING SUCH PATENT APPLICATIONS AND PATENTS.
6.4
INFRINGEMENT.
EACH OF ASSIGNEE AND
ASSIGNORS SHALL PROMPTLY PROVIDE WRITTEN NOTICE TO THE OTHER PARTY OF ANY
ALLEGED INFRINGEMENT BY A THIRD PARTY OF THE INVENTORS PATENTS AND PROVIDE SUCH
OTHER PARTY WITH ANY AVAILABLE EVIDENCE OF SUCH INFRINGEMENT.
6.5
DEFENSE. ASSIGNEE SHALL HAVE THE RIGHT, BUT
NOT THE OBLIGATION, TO PROSECUTE AND/OR DEFEND, AT ITS OWN EXPENSE AND UTILIZING
COUNSEL OF ITS CHOICE, ANY INFRINGEMENT OF, AND/OR CHALLENGE TO, THE INVENTORS
PATENTS.
IN FURTHERANCE OF SUCH RIGHT, ASSIGNORS HEREBY AGREE THAT ASSIGNEE MAY
JOIN ASSIGNORS AS A PARTY IN ANY SUCH SUIT, WITHOUT EXPENSE TO ASSIGNORS.
NO
SETTLEMENT, CONSENT JUDGMENT OR OTHER VOLUNTARY FINAL DISPOSITION OF ANY SUCH
SUIT WHICH WOULD ADVERSELY AFFECT THE RIGHTS OF ASSIGNORS MAY BE ENTERED INTO
WITHOUT THE CONSENT OF ASSIGNORS, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD.
6.6
ALLOCATION OF RECOVERY.
ANY RECOVERY OF
DAMAGES BY ASSIGNEE, IN ANY SUCH SUIT, SHALL BE APPLIED FIRST IN SATISFACTION OF
ANY UNREIMBURSED EXPENSES AND LEGAL FEES
9
OF ASSIGNEE RELATING TO THE SUIT AND THEN TO ASSIGNORS FOR ANY REVENUE SHARE
CREDITED IN ACCORDANCE WITH SECTION 6.8, BELOW.
THE BALANCE REMAINING FROM ANY
SUCH RECOVERY SHALL BE TREATED AS NET SALES RECEIVED BY ASSIGNEE.
6.7
DEFENSE.
IN THE EVENT THAT A CLAIM OR SUIT
IS ASSERTED OR BROUGHT AGAINST ASSIGNEE ALLEGING THAT THE MANUFACTURE OR SALE OF
ANY PRODUCT BY ASSIGNEE, AN AFFILIATE OF ASSIGNEE, OR ANY SUBLICENSEE, OR THE
USE OF SUCH LICENSED PRODUCT, INFRINGES THE PROPRIETARY RIGHTS OF A THIRD PARTY,
ASSIGNEE SHALL GIVE WRITTEN NOTICE THEREOF TO ASSIGNORS.
ASSIGNEE MAY, IN ITS
SOLE DISCRETION, MODIFY SUCH LICENSED PRODUCT TO AVOID SUCH INFRINGEMENT AND/OR
MAY SETTLE ON TERMS THAT IT DEEMS ADVISABLE IN ITS SOLE DISCRETION AFTER
CONSULTATION WITH THE ASSIGNORS.
IN ANY CASE, ASSIGNEE SHALL HAVE THE RIGHT,
BUT NOT THE OBLIGATION, TO DEFEND ANY SUCH CLAIM OR SUIT.
6.8