PERFORM
SUCH FILINGS OR PROSECUTION IN ACCORDANCE WITH THE TERMS HEREOF. IN ITS FILING
AND PROSECUTION OF SUCH PATENTS, THE COMPANY SHALL: (I) ONLY ENGAGE ADVISORS AND
COUNSEL REASONABLY ACCEPTABLE TO THE PURCHASER; (II) PROVIDE ALL DRAFT PATENT
APPLICATIONS TO THE PURCHASER SUFFICIENTLY IN ADVANCE OF FILING FOR THE
PURCHASER TO HAVE A REASONABLE OPPORTUNITY TO COMMENT THEREON AND SHALL GIVE
EFFECT TO ALL REASONABLE COMMENTS OF PURCHASER IN THE APPLICATION FILED;
(III) PROMPTLY FURNISH THE PURCHASER WITH COPIES OF ALL SUBSTANTIVE
COMMUNICATIONS BETWEEN THE COMPANY AND APPLICABLE PATENT OFFICES RELATING TO
SUCH PATENT APPLICATIONS, AND GIVE EFFECT TO ALL REASONABLE COMMENTS OR ADVICE
OF THE PURCHASER WHEN FRAMING RESPONSES AND SUBMISSIONS TO SUCH PATENT OFFICES;
AND (IV) KEEP THE PURCHASER ADVISED OF THE STATUS OF ACTUAL AND PROSPECTIVE
PATENT FILINGS ARISING OUT OF SUCH PATENTS.
(B)
COSTS AND EXPENSES. EACH PARTY SHALL BEAR
ITS OWN COSTS AND EXPENSES IN PREPARING, FILING, PROSECUTING AND MAINTAINING
LICENSED PATENT RIGHTS AND OTHER FILINGS OR APPLICATIONS (INCLUDING REGULATORY
FILINGS) ARISING OUT OF THE PRODUCT INTELLECTUAL PROPERTY.
(C)
COOPERATION. EACH PARTY AGREES TO COOPERATE
WITH THE OTHER WITH RESPECT TO THE FILING, PROSECUTION AND MAINTENANCE OF
PATENTS, PATENT APPLICATIONS AND REGULATORY FILINGS PURSUANT TO THIS
SECTION 3.1, INCLUDING WITHOUT LIMITATION:
(I)
THE EXECUTION OF ALL SUCH DOCUMENTS AND
INSTRUMENTS AND THE PERFORMANCE OF SUCH ACTS AS MAY BE REASONABLY NECESSARY IN
ORDER TO PERMIT THE OTHER PARTY TO FILE, PROSECUTE OR MAINTAIN PATENTS AND
PATENT APPLICATIONS AS PROVIDED FOR IN SECTION 3.1(A);
(II)
MAKING ITS EMPLOYEES, AGENTS AND
CONSULTANTS REASONABLY AVAILABLE TO THE OTHER PARTY (OR TO THE OTHER PARTY'S
AUTHORIZED ATTORNEYS, AGENTS OR REPRESENTATIVES), TO THE EXTENT REASONABLY
NECESSARY TO ENABLE THE PROSECUTING PARTY TO PREPARE, FILE, PROSECUTE AND
MAINTAIN PATENTS AND PATENT APPLICATIONS AS PROVIDED FOR IN SECTION 3.1(A);
(III)
PROVIDING AVAILABLE DATA, RECORDS AND
INFORMATION TO SUPPORT PREPARATION AND PROSECUTION OF PATENT APPLICATIONS; AND
*CONFIDENTIAL TREATMENT REQUESTED
8
(IV)
PROVIDING AVAILABLE DATA, RECORDS, INFORMATION
AND PERSONNEL TO SUPPORT PREPARATION OF ALL REGULATORY FILINGS AND CONSULTANT
WITH REGULATORY AUTHORITIES RELATED THERETO.
SECTION 3.2
THIRD PARTY INFRINGEMENT.
(A)
NOTIFICATIONS OF COMPETITIVE INFRINGEMENT.
EACH PARTY AGREES TO NOTIFY THE OTHER PARTY WHEN IT BECOMES AWARE OF THE
REASONABLE PROBABILITY OF INFRINGEMENT OF THE LICENSED PATENT RIGHTS
("COMPETITIVE INFRINGEMENT").
(B)
INFRINGEMENT ACTION. THE PURCHASER SHALL
HAVE THE INITIAL RIGHT, BUT NO OBLIGATION, TO INSTITUTE AN INFRINGEMENT SUIT OR
TAKE OTHER APPROPRIATE ACTION THAT IT BELIEVES IS REASONABLY REQUIRED TO PROTECT
THE LICENSED PATENT RIGHTS OR THE PRODUCT INTELLECTUAL PROPERTY FROM SUCH
COMPETITIVE INFRINGEMENT. THE PURCHASER SHALL BE PERMITTED TO ACT, OR CHOOSE NOT
TO ACT, SUBJECT TO ITS SOLE DISCRETION, INCLUDING, IF IT SO CHOOSES, TAKING NO
ACTION WITH RESPECT TO COMPETITIVE INFRINGEMENT OR SETTLING ANY SUCH COMPETITIVE
INFRINGEMENT IN ITS SOLE DISCRETION. SUBJECT TO SECTION 3.4, THE EXPENSES OF ANY
SUIT OR SUITS THAT THE PURCHASER ELECTS TO BRING SHALL BE PAID FOR ENTIRELY BY
THE PURCHASER. IF THE PURCHASER DOES NOT TAKE ACTION IN THE PROSECUTION,
PREVENTION, OR TERMINATION OF ANY