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ARTICLE · 11 DECEMBER 2018

WASHINGTON U. v. WARF – An Implied Covenant Wins The Day

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Wash. U. ultimately had to litigate for 5 years, starting the litigation 18 years after the IIA was executed, in order to gain the benefit of their agreement with WARF.

United StatesIntellectual Property
Oblon, McClelland, Maier & Neustadt, L.L.P
Oblon, McClelland, Maier & Neustadt, L.L.P
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In a November 26, 2018 order, the U.S. District Court for the District of Delaware ordered the Wisconsin Alumni Research Fund (WARF) to pay The Washington University – St. Louis (Wash. U.) $31.6 million for breach of contract (The Washington University v. Wisconsin Alumni Research Foundation, Civ. No. 13-2091-JFB).  The case originated when Wash. U. filed suit against WARF for breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and equitable accounting, relating to a 1995 agreement between the parties entitled "Inter-Institutional Agreement for Prevention of Hyperphosphatemia in Kidney Disorder Patients" (the "IIA"), and particularly relating to the drug paracalcitol.  The IIA covered certain patent rights for US Patent 5,597,815, jointly owned by Wash. U. and WARF.  In the IIA, Wash. U. granted to WARF "the exclusive right to negotiate, execute, administer, and enforce License Agreement(s), and WARF shall have

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