“Background Intellectual Property” means:
(a) any Intellectual Property other than the GEMS Intellectual Property created, devised, generated, owned by or licensed to the PTC Group or which the PTC Group has rights to prior to the Commencement Date (but excluding, for the avoidance of doubt, the Programme Intellectual Property), which are necessary or useful for undertaking the Programme, for the protection or exploitation of the Programme Intellectual Property, and/or which are necessary or useful for the development and exploitation of the Programme Intellectual Property; and
(b) The following patents or patent applications: [**];
“Background Know-How” Means any and all Know-How and any components thereof (including without limitation manufacturing processes and quality control procedures) other than the GEMS Know-How which are used by the PTC Group at any time for the Programme which are necessary or useful for undertaking the Programme, for the protection or exploitation of the Programme Intellectual Property, and/or which are necessary or useful for the development and exploitation of the Programme Intellectual Property, but excluding the Programme Intellectual Property. For the avoidance of doubt, PTC Background Know-How shall include Know-How generated by any PTC Affiliate and subsequently used by PTC for the Programme;
“GEMS” means PTC’s drug discovery technology for the modulation of gene expression by small molecules.
“GEMS Intellectual Property” means:
(a) any Intellectual Property created, devised, generated, owned by or licensed to the PTC Group or to which the PTC Group has rights (but excluding, for the avoidance of doubt, the Programme Intellectual Property), which relates to the GEMS technology; and
(b) The following patents or patent applications: [**]
“Not for Profit Basis” means (a) sales of Products where the consideration received by the seller is less than or equal to the sum of the Cost of Goods for such Product; in calculating the consideration received by the seller account shall be taken of any equity or lump sum or other payments received by the seller in respect of the Product; or (b) or sales of Products where the seller is a charitable organisation (other than the Trust or its Affiliates) under applicable law;
4. PROGRAMME MANAGEMENT AND PROGRAMME AUDIT
4.2 PTC warrants that it has or that it shall have in place contracts with its Staff such that any Programme Intellectual Property shall be owned by and assigned to PTC and that each member of the Staff is obliged to waive (to the extent that such rights exist under applicable law and are waivable) all moral rights and rights of a like nature in the Programme Intellectual Property. The Trust may upon reasonable notice require PTC to produce all and any Staff contracts for inspection by the Trust except as may be limited by applicable laws.
4.3 PTC shall cause to be kept full, detailed and accurate records of all of its activities and results obtained in connection with the Programme. In this respect, PTC shall and shall procure that the Staff shall at all times:
(a) observe professional standards; and
(b) maintain a policy which requires its Staff or others acting on its behalf to record and maintain all data and information developed during the Programme in such a manner as to enable the Parties to use such records to establish the earliest date of invention and/or diligence to reduction to practice (an “Invention Policy”). Such Invention Policy shall, among other things, provide that such individuals are to keep record all research, development and other work carried out in respect of the Programme and the results of such research, development and other work, in standard laboratory notebooks (or electronic equivalents that meet the requirements of applicable law) that are dated and corroborated by non–inventors on a regular, contemporaneous basis.
7. PROGRAMME COLLABORATORS AND SUBCONTRACTORS
7.1 If PTC wishes to use a Third Party collaborator or sub–contractor to conduct any part of the Programme, it shall seek the consent of the RSG unless such sub–contractor or collaborator is specified in the Application. PTC shall provide a copy of the agreed form of any sub–contract or collaboration agreement to the Trust for review by the Trust prior to signature by the parties thereto. Unless otherwise agreed in writing between the Parties, PTC shall ensure in all cases that any collaborations or sub–contracts shall be on the following terms:
(a) that the Third Party shall not have any rights to any results emerging from such work and all such results shall as between the Parties and the Third Party be deemed to be Programme Intellectual Property and owned in accordance with the provisions of this Agreement; provided, however, that if applicable law prevents assignment of ownership, PTC shall use its best efforts to secure appropriate license or option rights to such intellectual property […]
11.3 Prior to any member of the PTC Group (whether itself or through any other member of the PTC Group, or by granting a license or in collaboration with any Third Party) (the “Exploiting Party”), commencing the Development and/or Exploitation of any Programme Intellectual Property and/or Products both inside and outside the Field, PTC or the relevant the member of the PTC Group shall obtain the prior written consent of the Trust to such Development and Exploitation by sending written notice to the Trust and the following information:
(a) reasonable details of the relevant Programme Intellectual Property, the Products and the activity proposed;
(b) details of whether the proposed Exploitation will be on a For–Profit and/or Not–For–Profit Basis; and
(c) if applicable, amounts of any milestones payments and royalties that would be payable to the Trust pursuant to Schedule 6 and any other applicable terms.