OF THE OTHER PARTY
THEREON, IF TIMELY PROVIDED.
THE ENFORCING PARTY NONETHELESS SHALL HAVE THE
ULTIMATE AUTHORITY AND DISCRETION TO TAKE ANY ACTION THAT IS NECESSARY TO
ENFORCE SAID PATENT RIGHTS, WITHOUT CONSULTATION WITH THE OTHER PARTY, IF EITHER
THE OTHER PARTY HAS FAILED TO PROVIDE ITS COMMENTS AND COUNSEL IN A TIMELY
FASHION, OR IF IT IS NOT POSSIBLE AND PRACTICABLE TO CONSULT WITH THE OTHER
PARTY BEFORE ANY SUCH PAPERS MUST BE EXCHANGED OR FILINGS MUST BE MADE.
THE
OTHER PARTY SHALL JOIN IN ANY INFRINGEMENT ACTION AS A PARTY AT THE ENFORCING
PARTY'S REQUEST IN THE EVENT THAT AN ADVERSE PARTY ASSERTS, THE COURT RULES OR
OTHER LAWS THEN APPLICABLE PROVIDE OR THE ENFORCING PARTY DETERMINES IN GOOD
FAITH, THAT A COURT LACKS JURISDICTION BASED ON THE OTHER PARTY'S ABSENCE AS A
PARTY IN SUCH SUIT.
48
8.4.3.C.
STEP-IN RIGHTS. SUBJECT TO ANY PRIOR OBLIGATIONS OF THE PARTIES, IN
THE EVENT THAT THE ENFORCING PARTY SHALL NOT, WITHIN [**] MONTHS OF WRITTEN
NOTICE FROM THE OTHER PARTY OR OTHERWISE BECOMING AWARE OF A SUSPECTED
INFRINGEMENT OF SUCH GLYCOPROTEIN PRODUCT-RELATED PATENT RIGHTS BY A THIRD PARTY
MAKING, USING, SELLING, OFFERING TO SELL OR IMPORTING A PRODUCT COMPETITIVE WITH
A PRODUCT IN THE FIELD IN THE RELEVANT TERRITORY, COMMENCE AND VIGOROUSLY PURSUE
AN ACTION TO ENJOIN SUCH INFRINGEMENT, SUCH OTHER PARTY SHALL BE ENTITLED, AT
ITS EXPENSE (SUBJECT TO SECTION 4.1.3, AND PROVIDED THAT WITH RESPECT TO ANY
GLYCOPROTEIN PRODUCT-RELATED PATENT RIGHTS WHICH ARE JOINT COLLABORATION PATENT
RIGHTS, SUCH COSTS SHALL BE BORNE EQUALLY BY THE PARTIES, , EXCEPT AS PROVIDED
IN SECTION 4.1.3), TO COMMENCE THE ACTION IN ITS NAME.
THE ENFORCING PARTY
SHALL JOIN IN SUCH INFRINGEMENT ACTION AS A PARTY, AT THE REQUEST OF THE OTHER
PARTY, IN THE EVENT THAT THE COURT RULES OR OTHER LAWS THEN APPLICABLE SHALL
REQUIRE THE JOINDER OF THE ENFORCING PARTY FOR PURPOSES OF PROSECUTING SUCH
INFRINGEMENT ACTION, BUT SHALL HAVE NO OBLIGATION TO ACTIVELY PARTICIPATE OR
INCUR EXPENSES BEYOND THE MINIMUM LEVEL NECESSARY TO APPEAR FOR THE PURPOSE OF
SUSTAINING JURISDICTION.
8.4.4.
RECOVERIES.
SUBJECT TO ANY PRIOR OBLIGATIONS OF THE PARTIES, ANY
RECOVERY OBTAINED BY A PARTY(IES) AS A RESULT OF ANY PROCEEDING DESCRIBED IN
THIS SECTION 8.4 OR FROM ANY COUNTERCLAIM OR SIMILAR CLAIM ASSERTED IN A
PROCEEDING DESCRIBED IN SECTIONS 8.5 OR 8.6, BY SETTLEMENT OR OTHERWISE, SHALL
BE APPLIED AS FOLLOWS:
8.4.4.A.
FIRST, TO REIMBURSE EACH PARTY FOR ALL LITIGATION COSTS IN
CONNECTION WITH SUCH PROCEEDING PAID BY THAT PARTY (ON A PRO RATA BASIS,
DETERMINED IN ACCORDANCE WITH THE RELEVANT MOMENTA PROFIT PERCENTAGE, BASED ON
EACH PARTY'S RESPECTIVE LITIGATION COSTS, TO THE EXTENT THE RECOVERY WAS LESS
THAN ALL SUCH LITIGATION COSTS); AND
8.4.4.B.
SECOND, THE REMAINDER OF THE RECOVERY SHALL BE SHARED SO THAT
MOMENTA RECEIVES THE APPLICABLE MOMENTA PROFIT PERCENTAGE THEREOF.
8.4.5.
COOPERATION; SETTLEMENTS.
IN THE EVENT THAT ANY PARTY TAKES ACTION
PURSUANT TO THIS SECTION 8.4, THE OTHER PARTY SHALL COOPERATE WITH THE PARTY SO
ACTING TO THE EXTENT REASONABLY POSSIBLE,