AFFILIATE PURSUANT TO SECTION 8.2.3 ABOVE (THE "PROSECUTING PARTY")
INTENDS TO ALLOW SUCH PATENT TO LAPSE OR BECOME ABANDONED WITHOUT HAVING FIRST
FILED A SUBSTITUTE, THE PROSECUTING PARTY SHALL, WHENEVER PRACTICABLE, NOTIFY
THE OTHER PARTY OF SUCH INTENTION AT LEAST SIXTY (60) DAYS PRIOR TO THE DATE
UPON WHICH SUCH PATENT SHALL LAPSE OR BECOME ABANDONED, AND SUCH OTHER PARTY
SHALL THEREUPON HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO ASSUME RESPONSIBILITY
FOR THE PROSECUTION AND MAINTENANCE THEREOF AT ITS OWN EXPENSE WITH COUNSEL OF
ITS OWN CHOICE.
(C)
THE PROSECUTING PARTY SHALL BE RESPONSIBLE FOR COSTS ASSOCIATED WITH THE
PROSECUTION AND MAINTENANCE OF SUCH PATENTS WITHIN THE COLLABORATION TECHNOLOGY
THAT IT OWNS SOLELY.
THE OTHER PARTY AND ITS AFFILIATES SHALL REASONABLY
COOPERATE WITH AND ASSIST THE PROSECUTING PARTY, AT THE PROSECUTING PARTY'S
REQUEST AND EXPENSE, IN CONNECTION WITH SUCH ACTIVITIES, INCLUDING BY MAKING
SCIENTISTS AND SCIENTIFIC RECORDS REASONABLY AVAILABLE TO THE PROSECUTING PARTY.
(D)
"PROSECUTION AND MAINTENANCE" OR "PROSECUTE AND MAINTAIN" WITH REGARD TO A
PATENT SHALL MEAN THE PREPARING, FILING, PROSECUTING AND MAINTENANCE OF SUCH
PATENT, AS WELL AS RE-EXAMINATIONS, REISSUES, REQUESTS FOR PATENT TERM
EXTENSIONS AND THE LIKE WITH RESPECT TO SUCH PATENT, TOGETHER WITH THE CONDUCT
OF INTERFERENCES, THE DEFENSE OF OPPOSITIONS AND OTHER SIMILAR PROCEEDINGS WITH
RESPECT TO THE PARTICULAR PATENT.
(E)
IF REQUESTED BY AMGEN, ARRAY WILL IN GOOD FAITH DISCUSS WITH AMGEN WHETHER
IT WOULD BE APPROPRIATE TO TRANSITION TO AMGEN FOR PROSECUTION AND MAINTENANCE
ANY PROGRAM-RELATED PATENTS NOT THEN BEING PROSECUTED OR MAINTAINED BY AMGEN.
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[ * ] = Confidential treatment of certain confidential information contained in
this document, marked by brackets, is being sought pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
8.3
ENFORCEMENT RIGHTS.
8.3.1
DEFENSE AND SETTLEMENT OF THIRD PARTY CLAIMS.
SUBJECT TO THE
INDEMNIFICATION OBLIGATIONS OF EACH PARTY UNDER SECTION 10.4 OF THIS AGREEMENT,
EACH PARTY SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, AT ITS OWN COST AND
EXPENSE, TO DEFEND AGAINST THIRD PARTY CLAIMS BROUGHT AGAINST IT; PROVIDED THAT,
IF A THIRD PARTY ASSERTS AGAINST ARRAY OR AGAINST ARRAY AND AMGEN THAT A PATENT
OR OTHER RIGHT OWNED BY IT IS [***], AMGEN SHALL HAVE THE FIRST RIGHT, BUT NOT
THE OBLIGATION, TO DEFEND AGAINST SUCH ASSERTIONS AT ITS COST AND EXPENSE (SO
LONG AS AMGEN HAS THE RIGHT TO SELL SUCH PRODUCT HEREUNDER), SUBJECT TO THE
INDEMNIFICATION OBLIGATIONS OF EACH PARTY UNDER SECTION 10.4 OF THIS AGREEMENT.
8.3.2
INFRINGEMENT BY THIRD PARTIES.
(A)
IF ANY PATENT WITHIN THE LICENSED TECHNOLOGY CONTROLLED BY ARRAY OR JOINT
PATENT IS INFRINGED BY A THIRD PARTY IN ANY COUNTRY IN CONNECTION WITH [***],
AMGEN SHALL HAVE THE PRIMARY RIGHT, BUT NOT THE OBLIGATION, TO INSTITUTE,
PROSECUTE, AND CONTROL ANY ACTION OR PROCEEDING WITH RESPECT TO SUCH
INFRINGEMENT OF SUCH PATENT, BY COUNSEL OF ITS OWN CHOICE, AND ARRAY SHALL HAVE
THE RIGHT, AT ITS OWN EXPENSE, TO BE SEPARATELY REPRESENTED BY COUNSEL OF ITS
OWN CHOICE (BUT AMGEN WILL CONTINUE