BIND Therapeutics Chapter 11: Shouldn’t Merck File A “Limited Objection”, Too?

As we mentioned over the long holiday weekend, Pfizer earlier made a $20 million “stalking horse” bid for the assets of BIND, in Chapter 11. Yesterday, AstraZeneca entered a limited objection to that proposed deal, in the Delaware federal Bankruptcy Courts. [That hearing will be underway shortly in Delaware, BTW.]

Simply stated, AZ wants to be sure that Pfizer doesn’t acquire (free and clear of its rights) the patents, patent applications and other intellectual property rights that AZ earlier obtained rights to — via its own previously-spent research collaboration money. Those IP rights, the argument runs, should not be lien-free when/if BIND departs bankruptcy, at least not in the hands of Pfizer, should it win the bidding. AZ simply asserts its rights to receive what it is due under the agreements it struck with old pre-bankruptcy BIND Therapeutics.

It occurs to me that a very similar situation likely applies to Merck — and its earlier (November 2014) R&D agreements with BIND — so I would expect that Merck’s lawyers will soon file a similar objection. After-all, neither of these multinationals wants to have to “ask” Ian C. Read to return their IP — IP they already bought and paid for. Here’s the AZ version of that bankruptcy objection, though — and a relevant bit:

. . . .Upon review of the Sale Motion, AstraZeneca believes that the proposed sale of the Purchased Assets pursuant to the Bidding Procedures may include patents, patent applications or other intellectual property that is or may be subject to the rights of AstraZeneca under the License Agreement. . . .

AstraZeneca does not object to the Bidding Procedures or oppose a sale by the Debtor of any of its patents, patent applications or other intellectual property that is subject to the rights of AstraZeneca under the License Agreement. However, to the extent that the Debtor seeks to sell the Purchased Assets free and clear of liens and interests, AstraZeneca files this Limited Objection to ensure that any and all sales of the Purchased Assets remain subject to the rights of AstraZeneca under the License Agreement, including, in the event of rejection, any applicable rights of AstraZeneca under section 365(n) of the Bankruptcy Code. . . .

We will see if/when Kenilworth’s lawyers make a similar filing. Onward, on a gorgeous mid-summer morning — springing out the door, expectantly!

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