NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 23 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

C.R. BARD, INC., No. 23-16020

Plaintiff-Appellant, D.C. No. 2:21-cv-00284-DGC

v.

MEMORANDUM*

ATRIUM MEDICAL CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted July 9, 2024 San Francisco, California

Before: FRIEDLAND, MENDOZA, and DESAI, Circuit Judges.

In a concurrently filed opinion, we resolve the patent-misuse question

presented by this appeal. In this memorandum disposition, we address the

remaining issues.

1. Because we hold that the parties’ agreement does not constitute patent

misuse, we need not evaluate Bard’s quantum-meruit argument.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 2. Atrium contends that the parties’ agreement terminated in 2019 because it

does not include the Canadian patent, which is owned by Bard Peripheral Vascular,

Inc. (“BPV”), a wholly owned subsidiary of Bard. We reject that argument.

The License Agreement is governed by Delaware law. Under Delaware law,

“a contract’s construction should be that which would be understood by an

objective, reasonable third party.” Salamone v. Gorman, 106 A.3d 354, 367–68

(Del. 2014) (quoting Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del.

2010)). “Other documents or agreements can be incorporated by reference” into an

agreement. Town of Cheswold v. Cent. Del. Bus. Park, 188 A.3d 810, 818 (Del.

2018).

Section 7.2(d) of the License Agreement provides that it “shall automatically

terminate” if a court judgment “sets forth a determination of invalidity or

unenforceability of all claims of the Patent then outstanding that were asserted by

Licensor against Licensee in that certain Complaint for Patent Infringement filed

with U.S. District Court for the District of Arizona, Case No. 2:10-cv-01694-

DGC.” That infringement complaint is thus incorporated by reference into the

License Agreement because that complaint is necessary to understand the terms of

the Agreement. Without looking at that complaint, an “objective, reasonable third

party” would not understand the terms of the Agreement because she would not

know what sort of court ruling would trigger section 7.2(d). Salamone, 106 A.3d

2 at 367–68. The infringement complaint is therefore intrinsic evidence of the

meaning of the parties’ agreement, so it can and must be considered in construing

the terms of the agreement—whether or not there is any ambiguity in the text of

the License Agreement itself.

Once the infringement complaint is properly considered in construing the

License Agreement, it is clear that the parties intended the word “Licensor” to

include BPV. The text of the License Agreement describes the infringement

complaint as including claims “asserted by Licensor.” And the infringement

complaint includes only claims by BPV. Considering section 7.2(d) of the License

Agreement and the infringement complaint together, then, it is apparent that

section 7.2(d) of the License Agreement uses “Licensor” to mean BPV as well as

Bard. The “patents of the Licensor” covered by the parties’ agreement therefore

include the Canadian patent.

AFFIRMED IN PART AND REVERSED IN PART.

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