AsymmetRx v. Biocare Medical

582 F.3d 1314 (2009)

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AsymmetRx v. Biocare Medical

United States Court of Appeals for the Federal Circuit
582 F.3d 1314 (2009)

Facts

Harvard University owned two patents relating to monoclonal antibodies that were useful in detecting certain cancers. Harvard had licensed Biocare Medical, LLC (Biocare) (defendant) to make, use, and sell the antibodies while Harvard’s patent applications were still pending. Two years later, after the patents were issued, Harvard granted AsymmetRx, Inc. (plaintiff) an exclusive commercial license under the patents and a license to use the antibodies. Harvard reserved the right to make and use the antibodies for research purposes and to grant nonexclusive licenses to other nonprofit institutions for research purposes. Harvard also retained certain rights to control sublicensing by AsymmetRx, as well as the right to render the commercial license nonexclusive under certain circumstances. The agreement gave AsymmetRx the right to prosecute infringement actions in the commercial diagnostic field if AsymmetRx still had an exclusive license. However, AsymmetRx was obligated to consider Harvard’s views, and if AsymmetRx did sue to challenge an infringement, Harvard had the right to join and to jointly control the action. The agreement also barred AsymmetRx from settling an infringement suit without Harvard’s consent. Finally, if AsymmetRx elected not to prosecute an infringement, Harvard retained the right to do so. AsymmetRx sued Biocare for patent infringement, alleging that Biocare’s sales of the antibodies violated AsymmetRx’s rights in the commercial diagnostic field. The district court entered summary judgment in favor of Biocare, and AsymmetRx appealed.

Rule of Law

Issue

Holding and Reasoning (Lourie, J.)

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