United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ABRAXIS BIOSCIENCE, INC., 

Plaintiff-Appellee, 

v. 

NAVINTA LLC, 

Defendant-Appellant. 

__________________________ 

2009-1539 

__________________________ 

Appeal from the United States District Court for the 

District of New Jersey in Case No. 07-CV-1251, Judge 

Joel A. Pisano. 

__________________________ 

Decided: November 9, 2010 

__________________________ 

RICHARD DE BODO, Hogan & Hartson, LLP, of Los Angeles, California argued for plaintiff-appellee. With him 

on the brief were AMY M. GALLEGOS; and SIEGMUND Y.

GUTMAN, of Washington, DC. 

MEREDITH MARTIN ADDY, Brinks Hofer Gison & Lione, 

of Chicago, Illinois, argued for defendant-appellant. With 

her on the brief were MARK H. REMUS, LAURA A.

LYDIGSEN, and LUKE A. PARSONS. 

__________________________ 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 2

Before NEWMAN, GAJARSA, and LINN, Circuit Judges. 

Opinion for the court filed by Circuit Judge GAJARSA. 

Dissenting opinion filed by Circuit Judge NEWMAN. 

GAJARSA, Circuit Judge. 

Appellant Navinta LLC appeals from a final judgment 

of the United States District Court for the District of New 

Jersey finding, inter alia, that Navinta’s Abbreviated New 

Drug Application (“ANDA”) product would directly infringe claims 1-3 of U.S. Patent No. 4,870,086 (the “’086 

patent”) and contribute to and induce infringement of 

claim 6 of the ’086 patent. In addition, the district court 

found that Navinta’s ANDA product would contribute to 

and induce infringement of claims 1 and 9 of U.S. Patent 

No. 5,670,524 (the “’524 patent”) and claim 1 of U.S. 

Patent No. 5,834,489 (the “’489 patent”), both disclosing 

methods of using low concentrations of ropivacaine hydrochloride to treat pain. See Abraxis Bioscience, Inc. v. 

Navinta, LLC, 640 F. Supp. 2d 553, 569-92 (D.N.J. 2009). 

Because the district court erred in failing to dismiss 

Abraxis Bioscience, Inc.’s (“Abraxis’s”) action for lack of 

standing, we vacate the judgment below. 

 BACKGROUND 

Abraxis markets the drug Naropin® as a local or regional anesthetic indicated for use in surgery and for 

acute pain management, such as pain management 

during labor and delivery. Abraxis sells Naropin® in four 

concentrations: 1.0%, 0.75%, 0.5%, and 0.2%. The 0.2% 

concentration is the only FDA-approved strength for use 

in labor and delivery. The ’086 patent discloses the sole 

active ingredient in Abraxis’s Naropin® drug product, 
3 ABRAXIS BIOSCIENCE v. NAVINTA LLC

ropivacaine hydrochloride monohydrate (“ropivacaine”).1 

The ’489 patent claims the use of ropivacaine for treating 

pain at concentrations less than 0.5% administered 

epidurally. The ’524 patent discloses the use of ropivacaine for treating pain at concentrations less than 0.25%. 

Asserted claim 9 of the ’524 patent is a composition claim 

that covers “a pharmaceutical salt of ropivacaine at a 

concentration [. . .] lower than 0.25% by weight.” 

The sole inventor of the ’086 patent, Rune Sandberg, 

assigned his rights in the ’086 patent to Astra Lakemedel 

Aktieboag (“Astra L”) on October 16, 1986. Arne Torsten 

Eek, as sole inventor, assigned his rights in the ’524 and 

’489 patents to AB Astra on June 19, 1994. As a result of 

a merger between AB Astra and AstraZeneca AB (“AZAB”), AB Astra assigned the ’524 and ’489 patents to AZAB. 

On April 26, 2006, Abraxis entered into an Asset Purchase Agreement (“APA”) with AstraZeneca (“AZ-UK”). 

The APA provides that AZ-UK “shall or shall cause one or 

more of its Affiliates to, Transfer to the Purchaser, and 

the Purchaser shall purchase and accept from the Seller 

or its Affiliates, as applicable, all of the right, title and 

interests of the Seller and its Affiliates in” the asserted 

patents. Following the execution of the APA, AZ-UK and 

Abraxis executed a written Intellectual Property Assignment Agreement (“IP Assignment Agreement”) on June 

28, 2006 purportedly assigning the asserted patents to 

Abraxis. The “Further Assurances” provision of the IP 

Assignment Agreement states, in pertinent part, that 

“Seller will . . . execute . . . any and all further . . . as-

 1 Because the ’086 patent expired on September 24, 

2010, Navinta chose not to appeal the district court’s 

infringement findings regarding that patent. 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 4

signments . . . as necessary to . . . vest in Buyer any of the 

Transferred Intellectual Property.” There was a break in 

the chain of title, however, because the asserted patents 

were still owned by Astra L and AZ-AB, neither of which 

had assigned the rights in the asserted patents to AZ-UK. 

See Abraxis Bioscience, Inc. v. Navinta LLC, No. 07-1251, 

2009 WL 904043, at *2 (D.N.J. Mar. 30, 2009) (order 

denying motion to dismiss for lack of subject matter 

jurisdiction). 

On November 13, 2006, Navinta filed an ANDA for a 

generic version of Naropin®. Along with the ANDA, 

Navinta filed a patent certification pursuant to 21 U.S.C. 

§ 355(j)(2)(A)(vii)(IV) (“Paragraph IV Certification”), 

which alleged that none of the claims of the ’086 patent 

would be infringed by the manufacture, use, or sale of 

Navinta’s generic ropivacaine hydrochloride product. At 

the time of the Paragraph IV Certification, the only 

patent listed by Astra in the Food and Drug Administration’s (“FDA’s”) Approved Drug Products with Therapeutic Equivalence Evaluations (the “Orange Book”) for 

Naropin® was the ’086 composition patent. Although the 

’524 and ’489 patents issued ten years earlier, on September 23, 1997, and November 10, 1998, respectively, Astra 

elected not to list those patents in the Orange Book. 

On March 15, 2007, Abraxis filed an action against 

Navinta under the Hatch-Waxman Act, triggering the 

thirty-month statutory stay on approval of Navinta’s 

ANDA. See Drug Price Competition and Patent Term 

Restoration Act of 1984, Pub. L. No. 98-417, 98 Stat. 1585 

(1984) (codified at 21 U.S.C. §§ 355, 360cc; 35 U.S.C. 

§§ 156, 271). The complaint alleged that Navinta’s ANDA 

with its Paragraph IV Certification artificially infringes 

the listed ’086 patent under 35 U.S.C. § 271(e)(2). See Eli 

Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 678 (1990) 
5 ABRAXIS BIOSCIENCE v. NAVINTA LLC

(Section 271(e)(2) creates “a highly artificial act of infringement that consists of submitting an ANDA . . . 

containing a [Paragraph IV Certification] that is in error 

as to whether commercial, manufacture, use, or sale of 

the new drug (none of which, of course, has actually 

occurred) violates the relevant patent.”); Glaxo Group Ltd. 

v. Apotex, Inc., 376 F.3d 1339, 1351 (Fed. Cir. 2004) 

(“[Section] 271(e)(2) is designed to create an artificial act 

of infringement for purposes of establishing jurisdiction in 

the federal courts . . . .”). Also, to avoid the listing requirements under § 271(e)(2) with regards to the ’524 and 

’489 method patents, the complaint erroneously alleged 

indirect infringement of the method patents under 35 

U.S.C. § 271(b)-(c). Abraxis could not make any such 

allegation, however, because Navinta has never sold or 

offered to sell ropivacaine hydrochloride products and an 

act of actual commercial infringement is required for 

induced or contributory infringement. See 35 U.S.C. 

§ 271(b)-(c). 

On the same day this action was filed, Astra L and 

AZ-AB each executed nearly identical assignments of 

their respective patents to AZ-UK. The assignments 

reference the April 26, 2006 APA and provide that the 

assignments were executed to allow AZ-UK to “further 

convey” the patents to Abraxis. On November 12, 2007, 

almost eight months after filing suit, AZ-UK, in a separate document entitled “Intellectual Property Assignment 

Agreement,” “confirm[ed] the sale, assignment, conveyance and transfer to Abraxis, for Abraxis’ sole and exclusive use and enjoyment, of all of Astra Zeneca UK’s right, 

title, and interest, in and to” the asserted patents. The 

agreement further stated that AZ-UK and Abraxis “consider and have considered Abraxis by way of assignment 

and pursuant to the [APA], to own all rights, title, and 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 6

interest” to the asserted patents, including the right to 

sue for patent infringement no later than June 28, 2006. 

Awaiting the expiration of the ’086 patent on the 

composition, Navinta submitted a “Section viii Statement” 

along with a proposed labeling amendment seeking a use 

for its generic ropivacaine hydrochloride product not 

covered by the ’524 and ’489 method patents. As a general rule, the label associated with the generic version of a 

drug must be exactly the same as the label of the branded 

drug approved in the original New Drug Application 

(“NDA”). 21 U.S.C. § 355(j)(2)(A)(v), (j)(4)(G); 21 C.F.R. 

§ 14.94(a)(8)(iv). One exception to the rule under the 

Hatch-Waxman Act is if a generic manufacturer makes a 

“Section viii Statement,” 21 U.S.C. § 355(j)(2)(A)(viii), 

seeking FDA approval for a use not covered by a method 

patent listed in the Orange Book, along with a proposed 

label that “carves out” the patented method. Navinta 

submitted the Section viii Statement to avoid Abraxis’s 

infringement contentions regarding the unlisted method 

patents. Specifically, Navinta’s labeling amendment 

sought to delete the indication for acute pain management and maintained only the indication for surgical 

anesthesia with a recommended concentration of greater 

than 0.5%. It is uncontested that the use of ropivacaine 

for surgical anesthesia at concentrations of at least 0.5% 

does not infringe the ’524 and ’489 patents because the 

claims of those patents are limited to methods of treating 

pain and also require concentrations less than 0.25% and 

0.5%, respectively.

Initially, the FDA rejected Navinta’s labeling amendment because the ’524 and ’489 patents were not listed in 

the Orange Book at the time the complaint was filed, and 

thus, there was no basis for the Navinta package insert to 

depart from the approved NDA package insert for 
7 ABRAXIS BIOSCIENCE v. NAVINTA LLC

Naropin®. Then, in late 2007, Abraxis finally listed the 

’524 and ’489 patents in the Orange Book. In response, 

Navinta resubmitted its Section viii Statement and the 

FDA allowed the labeling amendment after Navinta made 

significant changes to its package insert to “carve out” all 

statements that might reasonably relate to the uses 

claimed in the ’524 and ’489 patents. 

Subsequently, Navinta filed a motion to dismiss the 

infringement counts with respect to the ’524 and ’489 

patents for lack of subject matter jurisdiction because the 

counts alleged speculative future infringement of the 

unlisted method patents under § 271(b)-(c). In response, 

Abraxis moved to amend the complaint to add a claim of 

infringement of the ’524 and ’489 patents under 

§ 271(e)(2). Navinta argued that the district court also 

lacked jurisdiction under § 271(e)(2) because the ’524 and 

’489 method patents were not listed in the Orange Book 

and, therefore, Navinta could not make a Paragraph IV 

Certification as to those patents. The district court 

granted Abraxis’s motion to amend its complaint to allege 

that Navinta infringed the ’524 and ’489 patents pursuant 

to § 271(e)(2). See Abraxis Bioscience, Inc. v. Navinta 

LLC, No. 07-1251 (D.N.J. Oct. 9, 2007) (order granting 

motion to amend complaint). The district court denied 

Navinta’s Rule 12(b)(1) motion to dismiss for lack of 

subject matter jurisdiction and exercised jurisdiction over 

the method patents based on § 271(e)(2) and the Declaratory Judgment Act. Id. (order denying motion to dismiss 

for lack of subject matter jurisdiction under 35 U.S.C. 

§ 271(e)(2)). 

Navinta also filed a second Rule 12(b)(1) motion to 

dismiss for lack of standing alleging that Abraxis did not 

own the asserted patents at the time the complaint was 

filed. See Abraxis Bioscience, 2009 WL 904043, at *1. 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 8

While acknowledging that there was a break in the chain 

of title to the patents, the district court held that the 

“intent” of the various Astra entities was sufficient to 

imply a nunc pro tunc assignment based on the relationship between the corporate entities. Id. at *4. The district court found that: 

[a]though Defendant is correct that Astra L and 

AZ-AB were not parties to the APA, neither were 

they complete strangers to that transaction. They 

were, respectively, a corporate affiliate and subsidiary of AZ-UK, and each of the March 2007 

agreements expressly recognize that they are “affiliate[s] of the Transferee.” So while Astra L and 

AZ-AB may not have been bound by the terms of 

the APA, given their relationship to the transaction between Abraxis and AZ-UK, the Court finds 

that their express recognition of the APA in the 

March 2007 assignments is significant—it evinces 

their intent that their transfer of the patents to 

AZ-UK be in accordance with the terms of that 

agreement, i.e., retroactive to June 28, 2006. 

Id. The district court then gave the March 15, 2007, 

assignments nunc pro tunc effect based on the June 28, 

2006 IP Assignment Agreement between AZ-UK and 

Abraxis in order to cure the defect in ownership as of the 

date of filing of Abraxis’s complaint. Id.

After a seven-day bench trial, the court issued its decision on August 3, 2009, two days before the expiration of 

the thirty-month stay on Navinta’s ANDA. Abraxis, 640 

F. Supp. 2d at 558. The district court found direct and 

indirect infringement of the ’086 patent and indirect 

infringement of the ’524 and ’489 patents. Id. at 569-92. 

Pursuant to its findings on inducement and contributory 
9 ABRAXIS BIOSCIENCE v. NAVINTA LLC

infringement, the district court ordered that the effective 

date of approval of Navinta’s ANDA product be no earlier 

than September 14, 2014, the expiration date of the ’524 

and ’489 patents. 

Navinta timely appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(1). 

DISCUSSION

Standing is a constitutional requirement pursuant to 

Article III and it is a threshold jurisdictional issue. Lujan 

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). We 

review standing, a question of law, de novo. See Pennington Seed, Inc. v. Produce Exch. No. 299, 457 F.3d 1334, 

1338 (Fed. Cir. 2006); Enzo Apa & Son, Inc. v. Geapag 

A.G., 134 F.3d 1090, 1092 (Fed. Cir. 1998). “To the extent 

[any] jurisdictional facts are in dispute, however, the 

findings of fact are reviewed for clear error.” Canadian 

Lumber Trade Alliance v. United States, 517 F.3d 1319, 

1330-31 (Fed. Cir. 2008); see SanDisk Corp. v. STMicroelectronics, Inc., 480 F.3d 1372, 1377 (Fed. Cir. 2007); 

Plumtree Software, Inc. v. Datamize, LLC, 473 F.3d 1152, 

1158 (Fed. Cir. 2006). 

We have stated that “[a]lthough state law governs the 

interpretation of contracts generally . . . the question of 

whether a patent assignment clause creates an automatic 

assignment or merely an obligation to assign is intimately 

bound up with the question of standing in patent cases. 

We have accordingly treated it as a matter of federal law.” 

DDB Techs., L.L.C. v. MLB Advanced Media, L.P., 517 

F.3d 1284, 1290 (Fed. Cir. 2008); see Speedplay, Inc. v. 

Bebop, Inc., 211 F.3d 1245, 1253 (Fed. Cir. 2000) (stating 

that while the ownership of patent rights is typically a 

question exclusively for state courts, the question of 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 10

whether contractual language effects a present assignment of patent rights, or an agreement to assign rights in 

the future, is resolved by Federal Circuit law). 

A court may exercise jurisdiction only if a plaintiff has 

standing to sue on the date it files suit. Keene Corp. v. 

United States, 508 U.S. 200, 207 (1993) (There is a “longstanding principle that the ‘jurisdiction of the Court 

depends upon the state of things at the time of the action 

brought.’”) (internal citations omitted); Minneapolis & St. 

Louis R.R. v. Peoria & Perkin Union Ry. Co., 270 U.S. 

580, 586 (1926) (“The jurisdiction of the lower court 

depends upon the state of things existing at the time the 

suit was brought.”). Based upon this Supreme Court 

jurisprudence, we have held that in a patent infringement 

action, “the plaintiff must demonstrate that it held enforceable title to the patent at the inception of the lawsuit” to assert standing. Paradise Creations, Inc. v. UV 

Sales, Inc., 315 F.3d 1304, 1309-310 (Fed. Cir. 2003); see 

also 35 U.S.C. §§ 100(d), 281 (A “patentee” is entitled to 

bring a “civil action for infringement of his patent,” and 

the patentee includes the “successors in title to the patentee.”). Thus, “if the original plaintiff lacked Article III 

initial standing, the suit must be dismissed, and the 

jurisdictional defect cannot be cured” after the inception 

of the lawsuit. Schreiber Foods, Inc. v. Beatrice Cheese, 

Inc., 402 F.3d 1198, 1203 (Fed. Cir. 2005); Lans v. Digital 

Equip. Corp., 252 F.3d 1320, 1328 (Fed. Cir. 2001) (affirming dismissal of complaint and denial of motion to 

amend pleadings to substitute assignee as plaintiff when 

plaintiff-inventor assigned the patent prior to filing the 

action). 

Whether an assignment of patent rights in an agreement is automatic or merely a promise to assign depends 

on the contractual language itself. DDB Techs., 517 F.3d 
11 ABRAXIS BIOSCIENCE v. NAVINTA LLC

at 1290. If the contract expressly conveys rights in future 

inventions, no further act is required once an invention 

comes into being, and the transfer of title occurs by operation of law. Id. For example, in Speedplay, an employment agreement providing that all inventions made 

during the term of employment “shall belong” to Speedplay and that the employee “hereby conveys, transfers 

and assigns . . . all right, title and interest in and to 

Inventions” operated as an automatic assignment once 

the invention was created. 211 F.3d at 1253 (holding that 

a party had standing to assert its patent because the 

assignment agreement in effect granted it all substantial 

rights in the patent); see DDB Techs., 517 F.3d at 1290 

(holding that an employment agreement reciting that the 

employee “agrees to and does hereby grant and assign” all 

rights in future inventions was an automatic assignment 

to employer by operation of law with no further act required on the part of the employer). 

In contrast, contracts that obligate the owner to grant 

rights in the future do not vest legal title to the patents in 

the assignee. Bd. of Trs. of Leland Stanford Junior Univ. 

v. Roche Molecular Sys., Inc., 583 F.3d 832, 841-42 (Fed. 

Cir. 2009) (cert. granted Nov. 1, 2010) (finding that “agree 

to assign” contract language in a university researcher’s 

patent assignment agreement with the university only 

provided a promise to assign the invention in the future, 

and, therefore, was trumped by “will assign and do hereby 

assign” contract language in a later agreement the researcher signed with a company regarding any invention 

made while collaborating with the company). Thus, 

contract language stating that a party “agrees to assign” 

reflects a mere promise to assign rights in the future, not 

an immediate transfer of expectant interests. See IpVenture, Inc. v. Prostar Computer, Inc., 503 F.3d 1324, 1327 

(Fed. Cir. 2007) (interpreting “agree to assign” as “an 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 12

agreement to assign,” requiring a subsequent written 

instrument); Arachnid, Inc. v. Merit Indus., Inc., 939 F.2d 

1574, 1580-81 (Fed. Cir. 1991) (holding that “will be 

assigned” does not create “a present assignment of an 

expectant interest”). 

Here, the contractual language of the APA indicates 

that the actual transfer of the asserted patents was to 

occur in the future. The APA states that AZ-UK “shall, or 

shall cause one or more of its Affiliates to, Transfer to the 

Purchaser, and the Purchaser shall purchase and accept 

from the Seller or its Affiliates, as applicable all of the 

right, title and interests of the Seller and its Affiliates in” 

the asserted patents. The actual transfer of the patents 

was to occur by means of a separate “IP Assignment 

Agreement” in the form to be mutually agreed upon by 

the parties prior to a July 31, 2006 closing date. Following the execution of the APA, AZ-UK and Abraxis executed the written June 28, 2006 IP Assignment 

Agreement. The IP Assignment Agreement purported to 

assign the asserted patents from AZ-UK to Abraxis. At 

that time AZ-UK could not assign the patents because it 

did not possess their titles. AZ-UK had no legal title to 

assign and, therefore, lacked standing to commence this 

litigation. See Gaia Techs., Inc. v. Reconversion Techs., 

Inc., 93 F.3d 774, 778 (Fed. Cir. 1996) (dismissing plaintiff’s patent and trademark infringement claims for lack 

of standing because of its “inability to prove that it was 

the owner of the Intellectual Property at the time the suit 

was filed”), as amended on reh’g on different grounds, 104 

F.3d 1296 (Fed. Cir. 1996); see FilmTec Corp. v. AlliedSignal, Inc., 939 F.2d 1568, 1572 (Fed. Cir. 1991) (stating 

that the purported assignment is a nullity if the assignor 

had nothing to assign). The district court’s ruling to the 

contrary was legal error. 
13 ABRAXIS BIOSCIENCE v. NAVINTA LLC

The dissent contends that our “promise to assign” line 

of cases is irrelevant. Dissent Op. at 10-11. The dissent’s 

contention is erroneous. Because the APA is a promise by 

AZ-UK to assign the relevant patents to Abraxis when 

AZ-UK obtains legal title, under our “promise to assign” 

cases, a subsequent written agreement is necessary to 

consummate the assignment. See IpVenture, 503 F.3d at 

1327. It is clear from the record that AZ-UK did not have 

legal title when it executed the June 28, 2006 IP Assignment Agreement and it did not obtain legal title to the 

patents until March 15, 2007. Whether, as the dissent 

argues, the March 15, 2007 assignments from Astra L and 

AZ-AB to AZ-UK contained nunc pro tunc provisions is 

irrelevant. Even if given retroactive effect, the March 15, 

2007 assignments do not automatically assign the patents 

to Abraxis; a subsequent written agreement was necessary. The only subsequent written agreement between 

AZ-UK and Abraxis is the November 12, 2007 Intellectual 

Property Assignment Agreement. This document is a 

clear recognition by Abraxis that AZ-UK did not hold 

legal title and therefore could not have transferred the 

patents without a properly executed assignment. It was a 

futile attempt by the parties to correct a critical error by a 

nunc pro tunc assignment. The effect of this document—

executed eight months after the lawsuit was filed—is the 

critical issue on appeal. 

Even if, as the district court found, the March 15, 

2007 agreements were considered to be retroactive, title 

to the asserted patents did not automatically vest in 

Abraxis upon the March 15, 2007 transfer to AZ-UK 

because the June 28, 2006 IP Assignment Agreement did 

not result in an immediate transfer of “expectant interests” to Abraxis. See Bd. of Trs. of Leland Stanford 

Junior Univ., 583 F.3d at 841-42. For title to vest in 

Abraxis, a further assignment by AZ-UK was required by 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 14

the “Further Assurances” provision of the June 28, 2006 

IP Assignment Agreement. Whether Astra L, AZ-AB, and 

AZ-UK are part of the same corporate structure and are 

not “complete strangers,” therefore, is irrelevant because 

there was no valid written assignment to Abraxis. See 35 

U.S.C. § 261 (assignments of patents must be in writing); 

Enzo APA, 134 F.3d at 1093 (same). Common corporate 

structure does not overcome the requirement that even 

between a parent and a subsidiary, an appropriate written assignment is necessary to transfer legal title from 

one to the other. Without the transfer of legal title of the 

patents, Abraxis had no standing to bring this infringement action. Lans, 252 F.3d at 1328 (holding that a 

plaintiff-inventor, who assigned his patent to a corporation in which he was the sole shareholder and managing 

director prior to filing the action, lacked standing to sue). 

AZ-UK finally assigned the asserted patents to 

Abraxis on November 12, 2007, nearly eight months after 

filing the complaint.2 Abraxis contends that the November 12, 2007 assignment confers standing because it was 

a nunc pro tunc assignment, thus, the requirement to 

have legal title to the patents on the day of suit was met 

retroactively. But the argument is to no avail because “if 

the original plaintiff lacked Article III initial standing, 

the suit must be dismissed, and the jurisdictional defect 

cannot be cured by . . . the subsequent purchase of an 

 2 On December 5, 2008, Abraxis assigned all rights, 

title, and interest in the asserted patents to APP Pharmaceuticals LLC and joined APP Pharmaceuticals as a 

plaintiff in this action. See Abraxis Bioscience, 2009 WL 

904043, at *5. Because Abraxis did not have standing at 

the time it filed the complaint, the joinder of APP Pharmaceuticals in 2008 cannot cure the jurisdictional defect 

after the inception of the action. 
15 ABRAXIS BIOSCIENCE v. NAVINTA LLC

interest in the patent in suit.” Schreiber Foods, 402 F.3d 

at 1203. Even if the November 12, 2007 agreement is 

considered to be a nunc pro tunc assignment, for purposes 

of standing, Abraxis was required to have legal title to the 

patents on the day it filed the complaint and that requirement can not be met retroactively.3 Enzo APA, 134 

F.3d at 1093 (vacating judgment of infringement and 

holding that “nunc pro tunc assignments are not sufficient 

to confer retroactive standing” where no written transfer 

of rights under patent had been made at the time claims 

were brought); Gaia Techs., 93 F.3d at 780 (reversing 

denial of motion to dismiss infringement complaint and 

vacating verdict that the asserted patents were infringed 

because alleged nunc pro tunc agreement was insufficient 

to cure the lack of standing existing when the complaint 

was filed). Thus, despite Abraxis’s delayed attempt to 

obtain title to the asserted patents, the action must be 

dismissed because Abraxis lacked standing on the day it 

filed the action.4 

 3 While Abraxis filed an amended complaint on November 16, 2007, we look to the date of the original Complaint, March 15, 2007, because “the jurisdiction of the 

Court depends on the state of things at the time of the 

action brought.” Keene Corp. v. United States, 508 U.S. 

200, 207 (1993); see Schreiber Foods, 402 F.3d at 1203, n.7 

(“The initial standing of the original plaintiff is assessed 

at the time of the original complaint, even if the complaint is later amended.”); FED. R. CIV. P. 15(a) & (c) 

(requiring an amended pleading to relate back to the date 

of the original pleading when the amendment asserts a 

claim that arises out of the conduct, transaction, or occurrence set out in the original pleading). 

4 The dissent criticizes our reliance on Enzo. Dissent Op. at 10. Yet, we are bound by Enzo and subsequent cases applying Enzo’s clear holding. As we have 

stated before, “[t]his court’s precedent clearly establishes 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 16

The foregoing rule has a narrow exception. A party 

may sue for past infringement transpiring before it acquired legal title if a written assignment expressly grants 

the party a right to do so. Moore v. Marsh, 74 U.S. 515, 

522 (1868) (“[I]t is a great mistake to suppose that the 

assignment of a patent carries with it a transfer of the 

right to damages for an infringement committed before 

such assignment.”); Arachnid, 939 F.2d at 1579 n.7, 1580-

81 (holding that the right to sue for past infringement 

“must be express, and cannot be inferred from an assignment of the patent itself”). This exception is irrelevant to 

this case. Despite what the parties to the November 12, 

2007 assignment believed, Abraxis was never granted the 

right to sue for past infringement that occurred when 

Navinta filed its ANDA and Paragraph IV Certification 

on November 13, 2006. The March 15, 2007 assignments 

to AZ-UK did not assign the right to sue for past in-

 

that a nunc pro tunc assignment executed after filing of a 

lawsuit cannot retroactively cure standing that was 

deficient at the time of filing.” Messagephone, Inc. v. SVI 

Sys.’s, Inc., 243 F.3d 556, at *5 (Fed. Cir. 2000) (Table). 

The dissent attempts to distinguish Enzo on the 

grounds that there was no evidence of any intention that 

the license would be exclusive before the suit was filed. 

Dissent Op. at 10. The distinction is impuissant. First, 

the parties in Enzo argued that the nunc pro tunc assignment agreement “was a memorialization [sic] of the 

pre-suit oral agreement of the parties,” thereby establishing evidence of an intention that the license would be 

exclusive before the suit was filed. 134 F.3d at 1092. 

Second, despite the dissent’s focus on intent, neither Enzo

nor any subsequent case involving nunc pro tunc assignments focused on intent. Instead, Enzo and its progeny 

stand for the clear proposition that irrespective of a 

party’s intent, “nunc pro tunc assignments are not sufficient to confer retroactive standing.” Id. at 1093 (formatting added). 
17 ABRAXIS BIOSCIENCE v. NAVINTA LLC

fringement, thus AZ-UK could not have assigned those 

rights to Abraxis on November 12, 2007, even if the 

November 12, 2007 assignment is “considered” to be 

retroactive. Therefore, Abraxis’s complaint must be 

dismissed because Abraxis lacked standing at the time 

the action was filed and continues to lack standing to sue 

for past infringement. 

Finally, Abraxis improperly relies on Arachnid to 

support its argument that equitable title to the asserted 

patents through the APA was sufficient to confer standing 

to sue under the Hatch-Waxman Act. Arachnid concerned a present agreement to assign rights to future 

inventions. 939 F.2d at 1576, 1580. In contrast, the June 

2006 IP Assignment Agreement attempted to assign 

rights to existing patents, but was ineffective, because the 

assignor, AZ-UK, did not own the patents at the time. 

Without ownership, AZ-UK had no authority to convey 

either the patents’ equitable or legal titles to Abraxis. Cf.

Arachnid, 939 F.2d at 1581. The legal title to the asserted patents remained with Astra L and AZ-AB until 

March 15, 2007 when it was transferred to AZ-UK, leaving Abraxis with defective legal title to the patents. 

Accordingly, we reverse the denial of the motion to 

dismiss the infringement complaint for lack of standing, 

vacate the district court’s judgment, and remand with 

instructions for the district court to dismiss Abraxis’s 

complaint without prejudice. Because we vacate the 

judgment of the district court for lack of standing, we 

need not address Navinta’s alternative jurisdictional 

ground for dismissal and we cannot review the merits of 

Navinta’s arguments regarding infringement. 

REVERSED, VACATED, AND REMANDED 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ABRAXIS BIOSCIENCE, INC., 

Plaintiff-Appellee, 

v. 

NAVINTA LLC, 

Defendant-Appellant. 

__________________________ 

2009-1539 

__________________________ 

Appeal from the United States District Court for the 

District of New Jersey in Case No. 07-CV-1251, Judge Joel 

A. Pisano. 

__________________________ 

NEWMAN, Circuit Judge, dissenting. 

The district court, applying the laws of contract and 

property transfer, held that the three patents in suit were 

owned by the plaintiff Abraxis when this suit was filed, and 

that the plaintiff had standing to bring this suit. The defendant did not seek interlocutory review of that ruling; and 

there have been over three years of litigation, including full 

trial of infringement of all three patents, and judicial determination of complex questions of law and fact concerning 

the Hatch-Waxman Act and its application. This court now 

finds that the plaintiff did not have standing, after all. 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 2

The court thus erases the trial, nullifies the judgment, 

cancels the appeal, and sends the case back so that the 

parties and the district court and this court can do it all 

again. However, the court has not shown reversible error in 

the district court’s ruling on the question of standing, a 

ruling based on state contract and commercial transaction 

law. Instead, the panel majority creates a new and convoluted law unique to the patent aspect of commercial transactions. No special public policy is served, and no reason 

exists for creating a new commercial law, divergent from the 

governing state law, when the subject of the commercial 

sale is a patent. I must, respectfully, dissent. 

DISCUSSION

New York law applies to these sales and transfer 

agreements. All of the documents state, and the parties and 

the district court agree, that the Asset Purchase Agreement 

and all of the related agreements are governed by New York 

law. Indeed, the choice of law is fundamental to this court’s 

ruling, for my colleagues do not dispute that when New 

York law is applied, the district court’s decision on standing 

should be upheld. Instead, the panel majority holds, contrary to New York law, that these commercial contracts 

cannot be given the effective date of the sales contract, on 

which these patents were sold and ownership was transferred. Thus although the parties to these contracts do not 

dispute their effective date, my colleagues now permit third 

parties to challenge and invalidate this commercial transaction, despite its undisputed validity as between the parties 

to the transaction. 

New York law is otherwise. Indeed, all state and federal 

law is otherwise. 
3 ABRAXIS BIOSCIENCE v. NAVINTA LLC

A 

The master agreement between AstraZeneca UK and 

Abraxis, called the Asset Purchase Agreement (APA) and 

dated April 26, 2006, provided for the sale and purchase of 

eight pharmaceutical products and their patents. This 

master agreement contains a complex series of avowals, 

warranties, covenants, and considerations provided by each 

party and states that various aspects will be the subject of 

“Acquisition Documents,” defining these “Acquisition Documents” as “any and all other agreements, instruments, 

certificates and other documents executed and delivered in 

connection with this Agreement.” APA §1.1. Section 3.1 of 

the APA states that 

the effectiveness of the documents, agreements, 

opinions and certificates delivered in accordance 

with [the APA], and the consummation of the transactions contemplated hereby shall be deemed to occur at the Effective Time. 

The Effective Time is defined as “12:01 a.m., New York time 

on the Closing Date.” The Closing Date is defined as June 

28, 2006. 

The Asset Purchase Agreement defines “Transferred 

Patent Rights” as the patents relating to the products that 

were sold. For the Transferred Patent Rights, APA §2.1(e) 

provides that AstraZeneca UK (“the Seller”) 

shall, or shall cause one or more of its Affiliates to, 

Transfer to the Purchaser, and the Purchaser shall 

purchase and accept from the Seller or its Affiliates, 

as applicable, all of the right, title and interests of 

the Seller and its Affiliates in and to . . . all Transferred Patent Rights. 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 4

On June 28, 2006 the Intellectual Property Assignment 

Agreement was executed. This agreement states that the 

“provisions of this instrument are subject to the terms and 

conditions of the Purchase Agreement.” The agreement 

states that the seller “hereby sells, assigns, conveys and 

transfers to Buyer . . . all of Seller’s right, title and interest” 

in the patents on the attached Schedule A. Schedule A lists 

the three patents in suit, and other patents. The Intellectual Property Assignment Agreement includes a “Further 

Assurances” clause, wherein AstraZeneca UK agrees that it 

will “do, execute, acknowledge and deliver, or will cause to 

be done, executed, acknowledged and delivered, any and all 

further acts, conveyances, transfers, assignments, and 

assurances as necessary to grant, sell, convey, assign, 

transfer, set over to or vest in Buyer any of the Transferred 

Intellectual Property.” 

In early 2007 AstraZeneca UK learned that title to some 

of the patents on Schedule A remained with affiliates of 

AstraZeneca UK, and had not been formally assigned to 

Abraxis. Astra Läkemedel Aktieboag (“Astra L”) was still 

the nominal assignee of U.S. Patent 4,870,086, and AstraZeneca AB was still the nominal assignee of U.S. Patents 

5,670,524 and 5,834,489. AstraZeneca UK acted in accordance with the Further Assurances clause, and on March 

15, 2007 Astra L and AstraZeneca AB executed additional 

documents assigning these patents to AstraZeneca UK, the 

documents stating that “this instrument is being executed 

by the parties to enable the Transferee to further convey to 

Buyer that portion of the Transferred Assets" included in 

the Asset Purchase Agreement, “dated as of April 26, 2006 

. . . pursuant to which Transferee agreed to sell to Buyer 

and Buyer agreed to purchase from Transferee the Transferred Assets, all as more particularly set out in the Purchase Agreement,” with “consummation of the transactions 

. . . deemed to occur at the Effective Time” on the Closing 
5 ABRAXIS BIOSCIENCE v. NAVINTA LLC

Date. APA §3.1. On November 12, 2007 AstraZeneca UK 

executed an additional document “confirming” that Abraxis 

has owned all “right, title, and interest” to the patents in 

suit “since no later than June 28, 2006.” 

It is not unusual to transfer a complex set of related assets through a master agreement and additional contracts 

and assurances. Here the specified patent rights were 

identified, and sold to Abraxis, in the Asset Purchase 

Agreement dated April 26, 2006. The patents were listed on 

Schedule A of the Intellectual Property Assignment Agreement dated June 28, 2006, and then, pursuant to the Further Assurances clause, on March 15, 2007 three of the 

patents that had been sold were subject to the Further 

Assurances of formal assignment and delivery, as required 

by the Asset Purchase Agreement and implemented in the 

Intellectual Property Assignment Agreement. Nonetheless, 

my colleagues dismiss the suit for lack of standing, deeming 

the transfer a “nullity” on inapt authority. Maj. Op. at 12. 

The district court reached a different conclusion, upon 

correct analysis of the transaction documents and on the 

entire record. 

B. 

The district court, applying New York law of contracts 

and property transfers, held that the March 15, 2007 assignment documents were “delivered in accordance with” 

the terms of the Asset Purchase Agreement and were effective as of June 28, 2006, as stated therein. The district 

court determined that the June 28, 2006 Closing Date 

applied to all of the listed patents. The court stated: “Given 

this retroactive effect, the [Intellectual Property Assignment 

Agreement] would then operate to transfer title from [AstraZeneca UK] to Abraxis as of that date as well,” and held 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 6

that the transfer was effective as of June 28, 2006. Abraxis 

Bioscience, Inc. v. Navinta LLC, Civ. Action No. 07-1251, 

2009 WL 904043, at *4 (D.N.J. Mar. 30, 2009). No error of 

law or fact has been shown in this ruling. 

The district court applied the New York law of contracts, which recognizes provision of an effective date before 

or after the date of signing of a contract. See Viacom Int’l 

Inc. v. Tandem Prods., Inc., 368 F. Supp. 1264, 1270 

(S.D.N.Y. 1974) (“When a written contract provides that it 

shall be effective ‘as of’ an earlier date, it generally is retroactive to the earlier date.”); Faculty Ass’n of Suffolk Cmty. 

Coll. v. Public Emp’t Relations Bd., 508 N.Y.S.2d 591, 592 

(App. Div. 1986) (recognizing retroactive effect of a successor agreement going back to the expiration date of the 

predecessor contract); Local Union 1567, Int'l Bhd. of Electrical Workers, AFL-CIO v. Orange and Rockland Utils., 

Inc., 478 N.Y.S.2d 937, 938 (App. Div. 1984) (retroactive 

effective date provided by collective bargaining agreement 

was binding, and applied to grievances that arose before the 

agreement was executed); Matthews v. Jeremiah Burns, 

Inc., 129 N.Y.S.2d 841, 847 (Sup. Ct. 1954) (amended 

agreement was retroactive to the date of the original 

amendment to which it referred, rather than taking effect 

only from the amendment’s date of execution); see also

Mutual Life Ins. Co. of N.Y. v. Hurni Packing Co., 263 U.S. 

167, 175–76 (1923) (applying New York law, “It was competent for the parties to agree that the effective date of the 

policy should be one prior to its actual execution or issue; 

and this, in our opinion, is what they did.”). Retroactivity 

also can serve to fill an unintended omission in an earlier 

agreement. See Local Union 1567, 478 N.Y.S.2d at 938; 

Matthews, 129 N.Y.S.2d at 847; Buffalo Police Benevolent 

Ass’n v. City of Buffalo, 453 N.Y.S.2d 314, 317 (Sup. Ct. 

1982) (collective bargaining agreement was made retroac-
7 ABRAXIS BIOSCIENCE v. NAVINTA LLC

tive to cover the period between the lapse of the previous 

contract and the execution of the new contract). 

It is beyond cavil that parties to a contract can set the 

effective date of their agreement. The district court found, 

in accordance with New York law, that the June 28, 2006 

Closing Date applied to all of the documents that referred to 

that Closing Date, and that the March 15, 2007 assignments 

were effective on the Effective Date stated therein. 

My colleagues hold that despite the explicit language of 

the contract documents and the intent of the parties as 

stated in the contracts, the patents were not transferred on 

any of the transfer dates stated in the contracts. This court 

rejects the district court’s ruling that the March 15, 2007 

reparative assignments were effective as of the Closing Date 

of June 28, 2006, although those patents were listed and 

sold in the closing documents. They even reject that the 

March 15, 2007 reparative assignments were effective on 

March 15, 2007. And they do not mention that even if there 

were some imperfection in ownership, it was corrected by 

the time the suit was filed. 

C 

The panel majority relies on assorted cases debating 

rights to future inventions. The question in this case is not 

whether or to whom an inventor assigned rights in possible 

unidentified future inventions, as in the “agree to assign” 

cases typified by Bd. Of Trustees of Leland Stanford Junior 

Univ. v. Roche Molecular Sys., Inc., 583 F.3d 832, 841 (Fed. 

Cir. 2009). This case relates to the law governing the commercial sale of existing patents, not the law of future rights 

to unknown inventions. 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 8

Patent conveyances are contracts, and the interpretation of sales contracts is a matter of state law. New York 

law permits contracts to take effect on a specified date, 

when such is the parties’ intent. Viacom, 368 F. Supp. at 

1270; Faculty Ass’n of Suffolk Cmty. Coll., 508 N.Y.S.2d at 

592; Local Union 1567, 478 N.Y.S.2d at 938; Matthews,129 

N.Y.S.2d at 847; see also Mutual Life, 263 U.S. at 175–76. 

It is incorrect for this court to refuse to apply the law that 

the parties have agreed to apply to these contracts. Indeed, 

my colleagues misdescribe New York contract law, ignoring 

the district court’s citation of authority. The district court 

correctly applied New York law in holding that the listed 

patents had been transferred as of June 28, 2006, the Closing Date of the transaction, and that Abraxis had title to the 

patents when suit was filed. No contrary meaning has been 

suggested for any of these contracts, and no conflicting law 

has been cited. 

New York law recognizes that correct contract interpretation implements the intent of the contracting parties. 

E.g., Greenfield v. Philles Records, Inc., 780 N.E.2d 166, 170 

(N.Y. 2002) (“The fundamental, neutral precept of contract 

interpretation is that agreements are construed in accord 

with the parties’ intent.”). For the contracts before us, there 

is no uncertainty or indefiniteness or ambiguity. See id.

(“Extrinsic evidence of the parties’ intent may be considered 

only if the agreement is ambiguous, which is an issue of law 

for the courts to decide.”). The district court relied on all of 

the contract documents, and gave effect to the parties’ 

intent as stated in the Asset Purchase Agreement and all of 

the documents. E.g.,Snug Harbor Square Venture v. Never 

Home Laundry, Inc., 675 N.Y.S.2d 365, 366 (App. Div. 1998) 

(“In construing a contract, the document must be read as a 

whole to determine the parties’ purpose and intent, giving a 

practical interpretation to the language employed so that 

the parties’ reasonable expectations are realized.”). 
9 ABRAXIS BIOSCIENCE v. NAVINTA LLC

No evidence of a different intent was offered, nor any 

plausible theory that the parties intended anything other 

than transfer of the patents on the Closing Date. The 

March 15, 2007 documents state that they are effective as of 

June 28, 2006, “to enable the Transferee to further convey to 

Buyer that portion of the Transferred Assets” included in 

the Asset Purchase Agreement, “pursuant to which Transferee agreed to sell to Buyer and Buyer agreed to purchase 

from Transferee the Transferred Assets, all as more particularly set out in the Purchase Agreement.” The Asset Purchase Agreement states that the “Closing Date,” June 28, 

2006, is the effective date for the transaction. As the district court correctly held, this date applies no less to the 

reparative assignments than it does to the other aspects of 

this commercial transaction. See Sunrise Med. HHG, Inc. v. 

AirSep Corp., 95 F. Supp. 2d 348, 436–37 (W.D. Pa. 2000) 

(“[A] nunc pro tunc assignment filed before the filing date of 

the action with an effective assignment date before the 

action does effect a valid transfer of rights sufficient to 

confer standing.”) (citing Gaia Techs., Inc. v. Reconversion 

Techs., Inc., 93 F.3d 774, 779-80 (Fed. Cir.), amended on 

reh’g on different grounds, 104 F.3d 1296 (Fed. Cir. 1996)). 

By ignoring this clear expression of the parties’ intent, 

the majority has not given a “practical interpretation” to the 

agreements, and has failed to realize the parties’ intentions. 

Snug Harbor, supra. The majority has done quite the 

opposite, engrafting a meaning that no party could reasonably or possibly have intended, and holding that despite all of 

these documents, ownership of these three patents was not 

transferred until the November 12, 2007 “confirmation” of 

ownership “since no later than June 28, 2006.” 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 10

D 

The panel majority states that this court has its own 

law, derived not from state law but from federal patent 

policy, in order to prevent litigants from filing suit before 

they have achieved ownership of the assets they seek to 

litigate, citing Enzo APA & Son, Inc. v. Geapag A.G., 134 

F.3d 1090, 1093 (Fed. Cir. 1998). In Enzo the court held 

that an exclusive license executed after a non-exclusive 

licensee filed suit did not establish standing at the time of 

filing, even if the exclusive license is stated to be retroactive. In Enzo the court found that there was no indication 

or evidence of any intention that the license would be exclusive before the suit was filed, despite an alleged oral agreement; thus the court held that the proposed retroactivity of 

exclusivity did not track an actual intent at the earlier time. 

Id. at 1093 (noting that no written license agreement 

existed at the time suit was filed). In sharp contrast, for the 

case at bar the Asset Purchase Agreement and the Intellectual Property Assignment Agreement state the sale of all 

rights to these patents. The parties intended that these 

patents would be included in the sale, and they were sold on 

the Closing Date of June 28, 2006. The reparative assignment documents on March 15, 2007 reflected that which 

was intended. See Mas-Hamilton Grp. v. LaGard, Inc., 156 

F.3d 1206, 1211 (Fed. Cir. 1998) (distinguishing patentee’s 

nunc pro tunc agreement correcting an earlier writing as of 

the earlier date, from Enzo, where a post-filing assignment 

could not retroactively cure the absence of any written presuit agreement). Enzo does not affect the district court’s 

ruling under New York law, for here there were explicit 

written pre-suit sales and transfer agreements. 

As mentioned ante, the panel majority relies on cases interpreting “promise to assign” disputes, stating that these 

cases mean that the district court erred in implementing the 
11 ABRAXIS BIOSCIENCE v. NAVINTA LLC

Further Assurances provision of the June 28, 2006 Intellectual Property Assignment Agreement. Maj. Op. at 11-12. 

However, the “promise to assign” cases do not invalidate, 

and indeed have no relation to this Further Assurances 

provision, for they relate to the special situation of ownership of future inventions not made at the time of the “promise to assign.” See, e.g., Arachnid, Inc. v. Merit Indus., Inc., 

939 F.2d 1574, 1576 (Fed. Cir. 1991) (disputing rights to an 

invention that may have been conceived during a consulting 

project). Issues arising from employment contracts have 

arisen on a variety of facts, but do not relate even remotely 

to this case. The majority’s reliance on this class of cases is 

obscure. 

The issue here is not an expectant interest in a future 

invention, but the effect under New York law of the explicit 

transfer of existing patents, as in the Intellectual Property 

Assignment Agreement. Indeed, the cases on which the 

majority relies do not support its thesis. For example, in 

Stanford v. Roche, supra, the court held that the language 

“do hereby assign” effected a present assignment, 583 F.3d 

at 842, although the invention and patent did not exist 

when the contract was made. Here, in contrast, all of the 

patents at issue were listed in the Asset Purchase Agreement. And even if this court were to conclude that the 

transfer required separate remedial assignment documents, 

these documents were obtained when this suit was filed. 

Thus standing is established even on the majority’s position. 

In addition, as a matter of contract interpretation, Federal Circuit precedent is contrary to the position of the panel 

majority. For example, in Speedplay, Inc. v. Bebop, Inc., 211 

F.3d 1245, 1250 (Fed. Cir. 2000) the court explained that 

the “substance of what was granted” governs the interpretation of contracts, quoting Vaupel Textilmaschinen KG v. 

Meccanica Euro Italia S.P.A., 944 F.2d 870, 874 (Fed. Cir. 
ABRAXIS BIOSCIENCE v. NAVINTA LLC 12

1991). The court in Speedplay authorized correcting an 

error in the patent number in view of the clear intent of the 

parties, whereby the correction was held retroactive to the 

date of the contract. As another example, in Viskase Corp. 

v. American National Can Co., 261 F.3d 1316, 1328–29 (Fed. 

Cir. 2001), this court held that a patent’s incorrect naming 

of inventors did not impair the patent owner’s rights and 

thus did not undermine standing to sue. These rulings, like 

New York law and all contract law, implement contractual 

intent. 

No evidence of any conflicting intent or purpose has 

been offered as to the Asset Purchase Agreement and any of 

the related contracts. All parties to the transaction agree 

that the patents were sold and transferred to Abraxis as of 

the Effective Date stated in the agreements. This court’s 

ruling that the transaction was legally void is negated by all 

precedent, is contrary to New York law, and is not within 

any federal exception to state law. The district court correctly ruled that Abraxis had standing to sue when this case 

was filed. With all respect to my colleagues on this panel, I 

must dissent from their ruling and their reasoning.1

 1 Although the court dismisses the case for lack of 

standing, my colleagues nonetheless also offer remarks that 

appear to be directed to the merits. However, if there was 

no standing in the district court, the merits decision is not 

before this panel for review.