I think it would hold up to legal challenge. And Isis would end up spending more in legal fees than they would recover from ogxi. The lesson would be structure the deal so you get a % on any upfront payment regardless of how its classified.
The terms of the deal were changed about a year ago - where ISIS stopped co-paying for development and just took a smaller % - they could make the argument that OGXI was/is not acting in good faith by trying to circumvent milestone/partnership payments.
It may be worth it if they argue that OGXI never planned on upholding the spirit of the license agreement and go after OGXI. If they do it now - they might be able to muscle out better % on comercialization etc or amend the terms to last years agreement. Likely wont mean much $$$ in the near term but if they can bump up their back end revenue share as a settlement it might be worth it if the drug actually does have a chance in 5 years.
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