![]() ![]() It is useful to detect and measure amounts of select proteins in these biological samples and can be used for human patient diagnosis, clinical trials, drug research, and other similar applications. ![]() Facts A brief note on ECL ECL uses electricity, chemistry, and light to detect and measure the presence of specific molecules in a test sample, including, for example, blood and other bodily fluids. As discussed further infra, in connection with Roche s acquisition of IGEN, BioVeris was created, and it contemporaneously acquired certain of IGEN s ECL-related intellectual property as well as IGEN s rights and obligations as licensor of certain patents to MSD. 2 preeminent research-focused healthcare conglomerate, which employs approximately 75,000 people worldwide and operates in the pharmaceuticals and diagnostics space. Unless otherwise noted, all facts recited in this Memorandum Opinion are drawn from the Complaint and accepted as true for purposes of Defendants motion to dismiss. 3 As part of the Transaction, Roche purchased IGEN. Its ECL-based products were used in a number of applications, including pharmaceutical research and development, life science research, biodefense testing, and testing for food safety and quality control. IGEN was a Delaware corporation in the business of developing and marketing biological detection systems based on its proprietary ECL technology. MSD also manufactures, markets, and sells instruments and consumables to the U.S. It employs approximately 350 employees and manufactures, markets, and sells instruments and kits utilizing its proprietary Multi-Array® ECL technology, particularly in the spheres of biological research and drug development. The Parties MST was founded by Jacob Wohlstadter for the purpose of, among other things, commercializing his invention of a new application of ECL that enhances its versatility and cost-effectiveness.3 MSD was formed in 1995 as a joint venture between MST and IGEN. For the reasons discussed below, I deny Roche s motion. Roche denies these allegations and has moved to dismiss the Complaint. As Plaintiffs do in their Complaint, I refer to these entities collectively as Roche, but differentiate among them when necessary. In 2010, Plaintiffs filed their Complaint in this action accusing Roche and a number of its affiliates of breaching provisions in two agreements related to the Transaction based on, among other things, Roche s acquisition of BioVeris without 1 Plaintiffs named as Defendants a number of other Roche affiliates, including Roche Diagnostics GmbH, Roche Diagnostics Corp., IGEN, IGEN LS LLC, and Lili Acquisition Corp. Later, in 2007, Roche acquired BioVeris in a reverse triangular merger in which BioVeris was the surviving entity. As part of the Transaction, Roche acquired IGEN, but before it did so, IGEN transferred all of its intellectual property assets, subject to outstanding license rights, to a newlycreated public corporation, Defendant BioVeris Corporation ( BioVeris ). Plaintiffs, Meso Scale Diagnostics, LLC ( MSD ) and Meso Scale Technologies LLC ( MST ) (together with MSD, Plaintiffs ), explicitly consented to that Transaction. ( IGEN ).2 In 2003, as part of a complicated transaction comprised of a dozen or so contemporaneously executed agreements (the Transaction ), Roche obtained a second nonexclusive license from IGEN. ( Roche )1 sought to reacquire an ECL license from thenpatent holder, Defendant IGEN International, Inc. After losing its original nonexclusive license to use this technology, Defendant Roche Holding Ltd. This case arises out of a series of agreements between the parties to this action relating to, among other things, license rights to use electrochemiluminescence ( ECL ) technology. Maassen, Esq., FOLEY & LARDNER, LLP, Milwaukee, Wisconsin Attorneys for Defendants. Sennett, Esq., Paul Bargren, Esq., Eric L. Brennecke, Esq., BOUCHARD MARGULES & FRIEDLANDER, P.A., Wilmington, Delaware Nancy J. Attorneys for Plaintiffs Meso Scale Diagnostics, LLC and Meso Scale Technologies, LLC. Walker, Esq., KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C. Newell, Esq., CONNOLLY BOVE LODGE & HUTZ, LLP, Wilmington, Delaware Mark C. 5589-VCP MEMORANDUM OPINION Submitted: DecemDecided: ApCollins J. ROCHE DIAGNOSTICS GMBH., ROCHE DIAGNOSTICS CORP., ROCHE HOLDING LTD., IGEN INTERNATIONAL, INC., IGEN LS LLC, LILLI ACQUISITION CORP., BIOVERIS CORP., Defendants. IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE MESO SCALE DIAGNOSTICS, LLC, MESO SCALE TECHNOLOGIES, LLC, Plaintiffs, v. ![]()
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