RELEVANT INQUIRIES FROM THE AUDITING PARTY OR
ITS AGENT.
THE AUDITING PARTY WILL BEAR THE FEES AND EXPENSES OF SUCH AUDIT,
PROVIDED THAT IF THE AUDIT REVEALS UNDERPAYMENT BY THE AUDITED PARTY BY AT LEAST
5%, SUCH COSTS WILL BE BORNE BY THE AUDITED PARTY.
ANY PAYMENT DISCREPANCY
IDENTIFIED AS A RESULT OF AN AUDIT UNDER THIS SECTION 11.4 WILL PROMPTLY BE
CORRECTED BY A PAYMENT OR REFUND, AS APPROPRIATE.
Article 12
Intellectual Property Matters.
12.1
OWNERSHIP.
(A)
SUBJECT TO THE RIGHTS GRANTED TO EXACT PURSUANT TO THIS AGREEMENT, AS
BETWEEN GENZYME AND EXACT, GENZYME WILL RETAIN OWNERSHIP OF ALL RIGHTS, TITLE
AND INTERESTS IN AND TO ALL TRANSFERRED TECHNOLOGY AND GENZYME LICENSED
IMPROVEMENTS.
(B)
SUBJECT TO THE RIGHTS GRANTED TO GENZYME PURSUANT TO THIS AGREEMENT, AS
BETWEEN EXACT AND GENZYME, EXACT WILL RETAIN OWNERSHIP OF ALL RIGHTS, TITLE AND
INTERESTS IN AND TO ALL EXACT LICENSED IMPROVEMENTS, ADDITIONAL EXACT TECHNOLOGY
(INCLUDING OPTIONED TECHNOLOGY) AND RETAINED PATENT RIGHTS.
(C)
INVENTORSHIP AND AUTHORSHIP FOR ALL KNOW-HOW, PATENT RIGHTS AND
COPYRIGHTS THAT ARE DISCOVERED, CONCEIVED, CREATED, MADE OR INVENTED WILL BE
DETERMINED IN ACCORDANCE
PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO THE COMPANY'S APPLICATION REQUESTING
CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE EXCHANGE ACT; [*] DENOTES
OMISSIONS.
30
WITH THE APPLICABLE UNITED STATES RULES, GUIDELINES AND LAWS OF INVENTORSHIP AND
AUTHORSHIP.
WITH RESPECT TO KNOW-HOW AND COPYRIGHTS DISCOVERED, CONCEIVED,
CREATED, MADE OR INVENTED (AS APPLICABLE) JOINTLY BY THE PARTIES [********],
EACH PARTY HEREBY ASSIGNS TO THE OTHER PARTY A JOINT INTEREST IN SUCH JOINT
KNOW-HOW AND COPYRIGHTS.
(D)
ALL JOINT COLLABORATION TECHNOLOGY WILL BE JOINTLY OWNED BY GENZYME AND
EXACT.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING THE
LICENSES GRANTED HEREIN), EACH PARTY WILL HAVE THE RIGHT TO PRACTICE AND LICENSE
THE JOINT COLLABORATION TECHNOLOGY IN ITS RESPECTIVE FIELD (I.E., THE EXACT
FIELD OR GENZYME FIELD, AS APPLICABLE) WITHOUT THE CONSENT OF THE OTHER PARTY
(WHERE CONSENT IS REQUIRED BY LAW, SUCH CONSENT IS DEEMED HEREBY GRANTED) AND
WITHOUT A DUTY OF ACCOUNTING TO THE OTHER PARTY, AND EACH PARTY WILL CONFIRM THE
FOREGOING IN WRITING AT THE OTHER PARTY'S REASONABLE REQUEST.
12.2
FILING, PROSECUTION AND MAINTENANCE OF PATENT RIGHTS.
(A)
PRIMARY PATENT RIGHTS.
THE RIGHTS AND OBLIGATIONS UNDER THIS
SECTION 12.2(A) WILL BE SUBJECT TO THE RIGHTS OF JHU UNDER THE TRANSFERRED
IN-LICENSE AGREEMENT, FOR PATENT RIGHTS INCLUDED WITHIN THE TRANSFERRED
IN-LICENSED TECHNOLOGY.
FROM AND AFTER CLOSING, GENZYME, THROUGH COUNSEL OF ITS
CHOOSING AND [********], WILL BE RESPONSIBLE FOR AND HAVE CONTROL OVER
OBTAINING, PROSECUTING (INCLUDING ANY INTERFERENCES, REISSUE PROCEEDINGS,
RE-EXAMINATIONS AND OPPOSITIONS), AND MAINTAINING THE PRIMARY PATENT RIGHTS, AND
EXACT WILL COOPERATE WITH GENZYME IN REGARD THERETO.
GENZYME WILL KEEP EXACT
INFORMED REGARDING THE PROSECUTION AND MAINTENANCE OF THE PRIMARY PATENT RIGHTS
AS APPLICABLE TO THE EXACT FIELD AND GIVE EXACT A REASONABLE OPPORTUNITY TO
PROVIDE TIMELY COMMENTS FOR GENZYME'S CONSIDERATION ON DRAFT FILINGS AND
CORRESPONDENCE RELATING TO SUCH PROSECUTION OR MAINTENANCE; PROVIDED THAT