Third Party Infringement Suit. In the event that a Third Party sues Licensee alleging that Licensee’s, its Affiliates” or its sublicensees” making, having made, importing, exporting, using, manufacturing, having manufactured Licensed Compound or distributing, marketing, promoting, offering for sale or selling Licensed Product infringes or will infringe a claim of a patent that specifically covers the Licensed Compound or its manufacture, then Licensee may elect to defend such suit and, during the period in which such suit is pending, notwithstanding Licensee’s obligation to indemnify Merck under Section 11.01 herein, ​.

Course of Action. In the event that Licensee’s, its Affiliates” or its sublicensees” making, having made, importing, exporting, using, Manufacturing, having Manufactured Licensed Compound or distributing, marketing, promoting, offering for sale or selling Licensed Product infringes, will infringe or is alleged by a Third Party to infringe, a claim of a patent that specifically covers the Licensed Compound or its Manufacture, the Party becoming aware of same shall promptly notify the other. Licensee shall determine a course of action that may include: # modification of the Licensed Product or its use and Manufacture so as to be non-infringing; or # obtaining a license or assignment from said Third Party.