AND MAINTENANCE EFFORTS FOR CYBERHEART PATENTS, TO THE
EXTENT DESIRED BY ACCURAY.
NOTWITHSTANDING THE FOREGOING, CYBERHEART SHALL HAVE
THE RIGHT, IN ITS REASONABLE DISCRETION, TO ABANDON ANY SUCH PATENT APPLICATIONS
AND/OR CEASE PAYMENT OF MAINTENANCE FEES ON ANY SUCH ISSUED PATENTS; BUT ONLY IF
CYBERHEART HAS FIRST ADVISED ACCURAY IN WRITING OF SUCH INTENTION AT LEAST
NINETY (90) DAYS PRIOR TO THE INTENDED ABANDONMENT OR CESSATION DATE.
IN SUCH
EVENT, ACCURAY, AT ITS SOLE EXPENSE, SHALL HAVE THE RIGHT TO ASSUME THE
PROSECUTION OF ANY SUCH PATENT APPLICATION AND/OR MAY CONTINUE TO PAY TO
MAINTAIN SUCH ISSUED PATENT IN EACH CASE THAT IS WITHIN THE CYBERHEART PATENTS
AND RELATES TO THE ACCURAY FIELD OR ANY CYBERKNIFE SYSTEM.
32
10.1.3
ASSISTANCE.
EACH PARTY AGREES TO (I) REASONABLY COOPERATE
WITH THE OTHER PARTY IN PREPARING, FILING, PROSECUTING, AND MAINTAINING ANY
ACCURAY PATENTS OR CYBERHEART PATENTS, AS THE CASE MAY BE, AND (II) EXECUTE ANY
DOCUMENTS AS SHALL BE NECESSARY OR DESIRABLE FOR SUCH PURPOSE.
10.2
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10.2.1
NOTIFICATION.
EACH PARTY SHALL PROMPTLY NOTIFY THE OTHER
PARTY IN WRITING (AND PROVIDE A REASONABLE DESCRIPTION) OF ANY SUSPECTED
INFRINGEMENT BY A THIRD PARTY OF ANY ACCURAY PATENT OR CYBERHEART PATENT (A
"THIRD-PARTY INFRINGEMENT").
10.2.2
ENFORCEMENT OF ACCURAY PATENTS.
BY ACCURAY.
SUBJECT TO SECTION , ACCURAY SHALL HAVE
THE FIRST RIGHT, BUT NOT THE OBLIGATION, TO FILE AND PURSUE ANY SUIT OR ACTION
FOR ANY THIRD-PARTY INFRINGEMENT OF THE ACCURAY PATENTS, INCLUDING WITHOUT
LIMITATION IN THE CYBERHEART FIELD, AND ACCURAY SHALL NOT, ABSENT CYBERHEART'S
PRIOR WRITTEN PERMISSION NOT TO BE WITHHELD UNREASONABLY, ENTER INTO ANY
SETTLEMENT OR OTHER ARRANGEMENT THAT GRANTS A LICENSE OR FREEDOM TO OPERATE
(INCLUDING WITHOUT LIMITATION BY WAY OF A COVENANT NOT TO SUE) TO ANY THIRD
PARTY UNDER THE ACCURAY PATENTS THAT WOULD INFRINGE UPON OR VIOLATE CYBERHEART'S
EXCLUSIVITY UNDER THIS AGREEMENT OR THAT OTHERWISE IS FOR ANY ACTIVITIES IN OR
FOR THE CYBERHEART FIELD.
ACCURAY SHALL BEAR THE REASONABLE EXPENSES INCURRED
BY CYBERHEART IN PROVIDING ASSISTANCE AND COOPERATION PURSUANT TO THIS SECTION
AS REQUESTED BY ACCURAY.
UNLESS ACCURAY AND CYBERHEART OTHERWISE
AGREE, ANY AMOUNT RECOVERED IN ANY SUCH SUIT OR ACTION, WHETHER BY JUDGMENT OR
SETTLEMENT, SHALL BE PAID TO AND RETAINED BY ACCURAY, UNLESS THE THIRD-PARTY
INFRINGEMENT WAS IN THE CYBERHEART FIELD.
FOR THIRD-PARTY INFRINGEMENTS IN THE
CYBERHEART FIELD, ACCURAY SHALL BE REIMBURSED OUT OF ACCURAY'S OWN RECOVERY
ACCURAY'S REASONABLE EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES) AND
FOR ANY PAYMENTS MADE TO CYBERHEART FOR ANY REASONABLE EXPENSES INCURRED BY
CYBERHEART IN PROVIDING ANY ASSISTANCE AND COOPERATION REQUESTED BY AND PROVIDED
TO ACCURAY IN CONNECTION WITH SUCH SUIT OR ACTION. ANY REMAINING AMOUNT SHALL BE
ALLOCATED TWENTY PERCENT (20%) TO ACCURAY AND EIGHTY PERCENT (80%) TO
CYBERHEART.
BY CYBERHEART.
IN THE EVENT ACCURAY (I) HAS NOT FILED A
SUIT OR ACTION TO ENFORCE THE ACCURAY PATENTS WITH RESPECT TO A THIRD-PARTY
INFRINGEMENT OF ACCURAY PATENTS IN THE CYBERHEART FIELD WITHIN NINETY (90) DAYS
OF LEARNING OF SUCH THIRD-PARTY INFRINGEMENT, (II) CEASES