Another interesting part of the document 75
07/02/2013 MEMORANDUM OF LAW IN OPPOSITION - showing the perfidious argumentation of Pfizer that the due date for the milestone payment would be when they sell a product under the license terms instead of the due date clearly agreed in the license agreement:
...
"Licensed Product" is defined in the Agreement to "mean[] any product in any dosage form containing the Pfizer Compound, the development, manufacture, use, sale or importation of which product would, absent the license granted by Licensor to Licensee herein, infringe any Valid Claim in any Licensed Patent" (Agreement Section 1.11) (Complaint <J(16). By the literal terms, the definition of Licensed Product is not conditioned on there already being any commercial sales or infringement of a Licensed Product before a product constitutes a Licensed Product. Rather, any product containing a Pfizer Compound, including by definition Pfizer's Lead Compound ponezumab, is a Licensed Product if its commercial manufacture, use or sale would infJ~inge any Valid Claim in any Licensed Patent, a fact readily discernable from the plain terms of the patent (see Intellect's '127 Patent, Exhibit A4).
The complaint duly alleges that ',:he manufacture, use or sale of ponezumab to treat Alzheimer's disease would infringe at least one Valid Claim in Intellect's '127 Patent (Complaint <J(32) , an allegation which must be taken as tnle for purposes of defendants' motion. Moreover, Pfizer does not and cannot dispute that the commercial sale of ponezumab to treat Alzheimer's disease would infringe at least one Valid Claim in Intellect's '127 Patent.
Indeed, Pfizer do~s not deny th~t if it were selling Pfizer's Lead Compound ponezumab it would inf:t:inge Intellect's '127 Patent. Instead, it argues that it is not actually selling, so not infringing yet to date. But the Agr~ement's definition of License Product does not state that it is not a Licensed Product until there are actual infringing sales, but rathei that sales would infringe the patent [if there were sales].
