SECTION 1.9
"HDDS TECHNOLOGYTM".
HDDS
TECHNOLOGYTM MEANS THAT CERTAIN PROPRIETARY POROUS MATRIX DRUG DELIVERY SYSTEM
OWNED OR CONTROLLED BY ACUSPHERE, CONSTITUTING A POROUS MATRIX CONTAINING A
HYDROPHOBIC ACTIVE INGREDIENT THAT HAS AN ENHANCED DISSOLUTION RATE RELATIVE TO
THE UNPROCESSED ACTIVE INGREDIENT.
SECTION 1.10
"LICENSED KNOW-HOW".
LICENSED
KNOW-HOW MEANS ALL INVENTIONS, METHODS, PROCESSES, TECHNIQUES, IMPROVEMENTS,
DESIGNS, FORMULAE, SPECIFICATIONS, AND TECHNICAL, SCIENTIFIC AND BUSINESS
INFORMATION (INCLUDING, WITHOUT LIMITATION, ALL BIOLOGICAL, CHEMICAL,
PHARMACOLOGICAL, TOXICOLOGICAL, CLINICAL AND ASSAY INFORMATION, DATA AND
ANALYSES), WHETHER OR NOT PATENTABLE, WHICH ARE CONTROLLED BY ACUSPHERE AND
WHICH RELATE TO THE HDDS TECHNOLOGYTM
AS USED WITHIN THE FIELD(INCLUDING,
WITHOUT LIMITATION, AI-850TM) AND IN WHATEVER FORM EXISTING (INCLUDING, WITHOUT
LIMITATION, PAPER, NOTEBOOKS, BOOKS, FILES, LEDGERS, RECORDS, TAPES, DISCS,
DISKETTES, CD-ROM AND ANY OTHER MEDIA ON WHICH THE FOREGOING CAN BE STORED).
SECTION 1.11
"LICENSED PATENT RIGHTS".
LICENSED
PATENT RIGHTS MEANS (A) THE PATENT RIGHTS SET FORTH ON EXHIBIT A, AND
(B) COUNTERPARTS OF THE PATENT RIGHTS SET FORTH ON EXHIBIT A IN ANY COUNTRY OF
THE WORLD.
SECTION 1.12
"PARTY".
PARTY MEANS CEPHALON OR
ACUSPHERE; "PARTIES" MEANS CEPHALON AND ACUSPHERE.
SECTION 1.13
"PATENT RIGHTS".
PATENT RIGHTS
MEANS UNITED STATES AND FOREIGN PATENTS AND PATENT APPLICATIONS AND ALL
SUBSTITUTIONS, DIVISIONS, CONTINUATIONS, CONTINUATIONS-IN-PART, REQUESTS FOR
CONTINUED EXAMINATIONS, REISSUES, REEXAMINATIONS AND EXTENSIONS THEREOF.
SECTION 1.14
"PERSON".
PERSON MEANS ANY NATURAL
PERSON OR ANY CORPORATION, COMPANY, PARTNERSHIP, JOINT VENTURE, FIRM OR OTHER
ENTITY, INCLUDING WITHOUT LIMITATION A PARTY.
SECTION 1.15
"THIRD PARTY".
THIRD PARTY MEANS
ANY PERSON OR ENTITY OTHER THAN A PARTY OR ANY OF ITS AFFILIATES.
2
SECTION 1.16
"VALID CLAIM".
VALID CLAIM MEANS A
CLAIM OF ANY ISSUED, UNEXPIRED UNITED STATES OR FOREIGN PATENT, WHICH SHALL NOT
HAVE BEEN DONATED TO THE PUBLIC, DISCLAIMED, NOR HELD INVALID OR UNENFORCEABLE
BY A COURT OF COMPETENT JURISDICTION IN AN UNAPPEALED OR UNAPPEALABLE DECISION.
Article II
GRANT OF LICENSE; DISCLOSURE OF KNOW-HOW; CLINICAL DATA
SECTION 2.1
LICENSE GRANT.
SUBJECT TO THE
TERMS AND CONDITIONS OF THIS AGREEMENT, ACUSPHERE HEREBY GRANTS TO CEPHALON AN
EXCLUSIVE, WORLDWIDE, ROYALTY-FREE RIGHT AND LICENSE UNDER THE LICENSED PATENT
RIGHTS AND THE LICENSED KNOW-HOW FOR ALL APPLICATIONS, USES AND PURPOSES IN THE
FIELD, INCLUDING WITHOUT LIMITATION, TO DEVELOP, MAKE, HAVE MADE, USE, OFFER FOR
SALE, SELL AND IMPORT PHARMACEUTICAL FORMULATIONS AND PRODUCTS, INCLUDING
AI-850TM.
SECTION 2.2
DISCLOSURE OF LICENSED
KNOW-HOW.
DURING THE TERM OF THIS AGREEMENT, CEPHALON SHALL HAVE ACCESS, AS
REASONABLY REQUESTED BY CEPHALON, TO PERSONNEL OF ACUSPHERE AND ITS AFFILIATES
AT REASONABLE TIMES DURING NORMAL BUSINESS HOURS AND UPON PRIOR NOTICE FOR
DISCUSSIONS RELATING TO REGULATORY, SCIENTIFIC, MEDICAL AND OTHER TECHNOLOGY
CONTAINED IN OR RELATING TO THE LICENSED KNOW-HOW.
IN ADDITION, TO THE EXTENT
REASONABLY NECESSARY, CEPHALON SHALL HAVE ACCESS TO ALL DOCUMENTS OF ACUSPHERE
AND ITS AFFILIATES IDENTIFIED BY CEPHALON AS IMPORTANT AS A RESULT OF SUCH
DISCUSSIONS.
SECTION 2.3
TRANSFER OF PRE-CLINICAL AND
CLINICAL DATA.
WITHIN TEN (10) DAYS OF THE EFFECTIVE DATE, ACUSPHERE SHALL
TRANSFER TO CEPHALON, AT ACUSPHERE'S SOLE COST AND EXPENSE, ALL PRECLINICAL AND
CLINICAL DATA RELATED TO HDDS TECHNOLOGYTM IN THE