Can a Bankrupt Company Assign Its Patent License to the Highest Bidder, Even When the License Itself Forbids Assignment? Why Everex Systems, Inc. v. Cadtrak Corp. Gives an Unconvincing Answer

A patent licensee that declares bankruptcy will often want to assign its rights under the license to another party in exchange for much-needed cash. The Bankruptcy Code generally allows debtors to assign executory contracts, including patent licenses, in this way. Indeed, the Code permits debtors to assign a contract even if the contract itself contains a “no-assign” clause, i.e., a clause expressly forbidding assignment. But there is an exception: The Code will defer to certain kinds of otherwise applicable non-bankruptcy law that would normally prevent the contract from being assigned. In particular, the Code will not allow assignment by a debtor-licensee if, outside of the bankruptcy context, the applicable non-bankruptcy law would bar assignment regardless of whether the contract contained a no-assign clause or not. Two bodies of non-bankruptcy law speak to the assignment of patent licenses. State contract law generally permits assignment unless the license says otherwise, while a longstanding rule of federal common law generally bars assignment unless the license says otherwise. Careful reflection on these two rules reveals that the federal common-law rule is the type of non-bankruptcy rule the Code will defer to, while the state contract law rule is not. Thus, if state contract law governs questions of patent license assignability outside of bankruptcy, then inside bankruptcy the Code will permit assignment by a bankrupt licensee. On the other hand, if federal common law governs those questions outside of bankruptcy, then inside bankruptcy the Code will defer to the federal rule, and will prevent the bankrupt licensee from assigning. Thus, the question of whether a bankrupt licensee can assign a patent license containing a no-assign clause reduces to an Erie question about which body of law applies to patent license assignability issues outside of bankruptcy. Under the Erie doctrine, whether state contract law or federal common law applies to patent license assignability questions outside of bankruptcy depends on one thing only: whether the use of state contract law to decide such questions would pose a “significant conflict” with some federal policy. Everex Systems, Inc. v. Cadtrak Corp., the leading case on this topic, concluded that using state law would significantly reduce the value of the federal patent monopoly, thereby significantly conflicting with federal patent policy, and that federal common law must therefore apply. Other authors have criticized Everex, most forcefully by arguing that Congress has tacitly indicated that there is no federal policy of protecting the value of the patent monopoly against ordinary variations in state contract law. But such arguments ultimately rest on the authors’ particular, and easily assailable, interpretation of Congressional silence on the subject of patent licenses. The present article offers a more fundamental critique of Everex: Even if we assume, as the Everex court did, that protecting the value of the patent monopoly against variations in state contract law is a genuine goal of federal policy, Everex still contains a serious flaw. Everex concluded that applying state contract law to patent license assignability questions (not in the bankruptcy context, but generally) would significantly undermine the patent monopoly overall, because it would mean that, within any bankruptcy, the no-assign clause in a patent license would always be ignored, destroying much of the patent’s value. But the court failed to account for the fact that this insult to the patent’s value occurs only when the licensee happens to be bankrupt. Outside of the bankruptcy context, the Bankruptcy Code does not apply, and no-assign clauses in patent licenses are routinely enforced, whether one is using state contract law or federal common law. Thus, from the perspective of the would-be innovator—the scientist or R&D director whose behavior the federal patent policy seeks to shape—the ex-ante expected value of the patent may not be significantly reduced by the use of state law as opposed to federal common law. In particular, this ex-ante expected value will not be substantially diminished if the probability is low that the eventual licensee of the patented invention will end up going bankrupt. Everex ignored this empirical element of the Erie analysis—an element that can also be applied in many other, non-patent, settings. In short, the Everex court fell into the trap of imagining that the injury to the patent monopoly in the general case would be of the same magnitude as the injury to the patent monopoly in the case that happened to be before the court that day. It would not, for the simple reason that most patent licensees do not go bankrupt

Connectomic profiling and Vagus nerve stimulation Outcomes Study (CONNECTiVOS): A prospective observational protocol to identify biomarkers of seizure response in children and youth

INTRODUCTION: Vagus nerve stimulation (VNS) is a neuromodulation therapy that can reduce the seizure burden of children with medically intractable epilepsy. Despite the widespread use of VNS to treat epilepsy, there are currently no means to preoperatively identify patients who will benefit from treatment. The objective of the present study is to determine clinical and neural network-based correlates of treatment outcome to better identify candidates for VNS therapy. METHODS AND ANALYSIS: In this multi-institutional North American study, children undergoing VNS and their caregivers will be prospectively recruited. All patients will have documentation of clinical history, physical and neurological examination and video electroencephalography as part of the standard clinical workup for VNS. Neuroimaging data including resting-state functional MRI, diffusion-tensor imaging and magnetoencephalography will be collected before surgery. MR-based measures will also be repeated 12 months after implantation. Outcomes of VNS, including seizure control and health-related quality of life of both patient and primary caregiver, will be prospectively measured up to 2 years postoperatively. All data will be collected electronically using Research Electronic Data Capture. ETHICS AND DISSEMINATION: This study was approved by the Hospital for Sick Children Research Ethics Board (REB number 1000061744). All participants, or substitute decision-makers, will provide informed consent prior to be enrolled in the study. Institutional Research Ethics Board approval will be obtained from each additional participating site prior to inclusion. This study is funded through a Canadian Institutes of Health Research grant (PJT-159561) and an investigator-initiated funding grant from LivaNova USA (Houston, TX; FF01803B IIR)

Dynamical Equivalence and Linear Conjugacy of Chemical Reaction Networks: New Results and Methods

In the first part of this paper, we propose new optimization-based methods for the computation of preferred (dense, sparse, reversible, detailed and complex balanced) linearly conjugate reaction network structures with mass action dynamics. The developed methods are extensions of previously published results on dynamically equivalent reaction networks and are based on mixed-integer linear programming. As related theoretical contributions we show that (i) dense linearly conjugate networks define a unique super-structure for any positive diagonal state transformation if the set of chemical complexes is given, and (ii) the existence of linearly conjugate detailed balanced and complex balanced networks do not depend on the selection of equilibrium points. In the second part of the paper it is shown that determining dynamically equivalent realizations to a network that is structurally fixed but parametrically not can also be written and solved as a mixed-integer linear programming problem. Several examples illustrate the presented computation methods.Comment: 29 pages, 1 figur

Light-Element Abundance Variations at Low Metallicity: the Globular Cluster NGC 5466

We present low-resolution (R~850) spectra for 67 asymptotic giant branch (AGB), horizontal branch and red giant branch (RGB) stars in the low-metallicity globular cluster NGC 5466, taken with the VIRUS-P integral-field spectrograph at the 2.7-m Harlan J. Smith telescope at McDonald Observatory. Sixty-six stars are confirmed, and one rejected, as cluster members based on radial velocity, which we measure to an accuracy of 16 km s-1 via template-matching techniques. CN and CH band strengths have been measured for 29 RGB and AGB stars in NGC 5466, and the band strength indices measured from VIRUS-P data show close agreement with those measured from Keck/LRIS spectra previously taken of five of our target stars. We also determine carbon abundances from comparisons with synthetic spectra. The RGB stars in our data set cover a range in absolute V magnitude from +2 to -3, which permits us to study the rate of carbon depletion on the giant branch as well as the point of its onset. The data show a clear decline in carbon abundance with rising luminosity above the luminosity function "bump" on the giant branch, and also a subdued range in CN band strength, suggesting ongoing internal mixing in individual stars but minor or no primordial star-to-star variation in light-element abundances.Comment: 10 pages, emulateapj format, AJ accepte