Respectfully disagree on the pending legal action. I do agree that issue at hand has more to do with business law/ contract rather than an IP issue.
We do not have enough info about what each party knows or believes so this is all conjecture. I am not advocating for either side but looking at this from both a legal and practical perspective.
Once EUA is granted there is no reason for NRXP to withhold data any longer and I expect the transfer to happen expeditiously. Practically, if there is any legal action NRXP will be the winner regardless of who legally prevails. A good attorney will win your case but a great attorney will keep your opponent tied up in court indefinitely. There are multiple ways to legally delay civil procedure and a savvy attorney can even ‘win’ by forcing your opponent to outspend you; e.g. I can file a motion which takes me 1 hour draft but will take you 3 hours to respond to and you must respond or default. Which brings up the issue of attorneys fees and I am not aware of what the provision is (if there is one), also we do not know of other required resolution procedures (mediation, arbitration, etc…) which must be first exhausted. From a practical point any litigation will take at least 1-2 years before it sees the inside of a courtroom. Since getting the data is time sensitive for RLFTF any delay is not optimal.
Legally, “a contract is a contract” sometimes. Courts are always full so there is so such thing as an ‘iron clad’ contract. Yes contracts usually contain the ‘four corners clause’ expressing that everything has been reduced to writing and modifications to agreement only by written consent of both parties and so forth. But if there was a misrepresentation or misunderstanding of conditions upon which the contract was entered (either accidental or intentional) or terms of the conditions in the contract then we have a basis for the attorneys to argue. We do not even know what (if any) are the agreed upon definitions or conditions for performance; e.g. define “drug” or what is the timeline for when data is to be shared. We also don’t know if there is a clause for liquidated damages since courts very rarely reward speculative damages. So basically we don’t know enough to make any informed comments on the outcome of any hypothetical litigation. Even if we did somehow know everything about the contract, it is not possible for any contract to contain all the details to account for all situations. Rarely is anything all or nothing and the attorneys will argue material/ immaterial breach and degrees of partial performance. And this is all before we even look at legal principles of unjust enrichment.
Right now everything depends on the EUA. After EUA RLFTF may or may not have a claim for shared info. RLFTF will definitely have a claim when it is time to share the profits and NRXP fails to split the profits accordingly. This also goes to illustrate the point that the money goes to NRXP first who then shares with RLFTF.
There is no chance of an injunction because it would hurt both companies (no revenue) and a court would not allow an injunction on the principle of the greater public good (also no way for RLFTF to satisfy the elements required for an injunction).
My opinion is that it will be sorted out without going to court. Luckily it’s just a matter of money so the answer is moving a few points one way or the other. But first things first and we need the EUA. All my opinion. GLTA
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