

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 96-2028

         INSTITUT PASTEUR AND PASTEUR SANOFI DIAGNOSTICS,

                           Appellants,

                                v.

                  CAMBRIDGE BIOTECH CORPORATION,

                            Appellee.

                                                                                                

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]                                                                 

                                                                                                

                              Before

                      Cyr, Boudin and Lynch,

                         Circuit Judges.                                                 

                                                                                                

   Jeffrey D.  Sternklar, with  whom Michael  Gottfried and  Burns &amp;                                                                              
Levinson LLP were on brief for appellants.                     
   Joseph  F. Ryan,  with whom  Jeffrey L.  Jonas, Anthony  L. Gray,                                                                             
Andrew P.  Strehle and  Brown, Rudnick, Freed  &amp; Gesmer, P.C.  were on                                                                     
brief for appellee.

                                                                                                

                         January 17, 1997
                                                                                                

          CYR, Circuit Judge.    Unsuccessful in their intermedi-                    CYR, Circuit Judge.                                      

ate appeal  to the district  court, Institut Pasteur  and Pasteur

Sanofi Diagnostics [collectively:   "Pasteur"] again appeal  from

the bankruptcy court order which confirmed the chapter 11 reorga-

nization plan ("Plan") proposed by debtor-in-possession Cambridge

Biotech  Corporation  ("CBC"),  the  holder of  two  licenses  to

utilize  Pasteur  patents.   The  Plan provision  central  to the

present dispute  calls for the sale of all CBC stock to a subsid-

iary of bioMerieux Vitek, Inc. ("bioMerieux"), a major competitor

of appellant Pasteur.  Finding no error, we affirm.

                                I                                          I

                            BACKGROUND                                      BACKGROUND                                                

          CBC  manufactures and sells retroviral diagnostic tests

for detecting the human  immunodeficiency virus (HIV)  associated

with  AIDS.   Its  HIV  diagnostics  division annually  generates

approximately  $14  million in  revenues.    Institut Pasteur,  a

nonprofit French foundation engaged in  AIDS-related research and

development, owns various patented procedures for  diagnosing HIV

Virus  Type 2  ("HIV2 procedures").   Pasteur  Sanofi Diagnostics

holds  the  exclusive  right   to  use  and  sublicense  Institut

Pasteur's patents.

          In October  1989, CBC  and Pasteur entered  into mutual

cross-license  agreements, whereby  each acquired  a nonexclusive

perpetual  license to  use  some of  the  technology patented  or

licensed by the other.   Specifically, CBC acquired the  right to

incorporate Pasteur's  HIV2 procedures into  any diagnostic  kits

                                2

sold  by CBC in the United States, Canada, Mexico, Australia, New

Zealand and elsewhere.1  

          Each cross-license broadly  prohibits the licensee from

assigning  or sublicensing  to others.   See  Royalty-Free Cross-                                                      

License, at   7.1; Royalty-Bearing Cross-License, at   8.1 ("[N]o

other  person shall acquire or have  any right under or by virtue

of this Agreement.").   Nevertheless, either  Pasteur or CBC  was

authorized to "extend to its Affiliated Companies the benefits of

this Agreement so  that such party shall  remain responsible with

regard  [to] all [license] obligations."  Id.   1.4.  "Affiliated                                                       

Company"  is defined  as "an  organization which  controls or  is

controlled  by a party or  an organization which  is under common

control with a party." Id.                                    

          CBC  filed its chapter 11 petition on July 7, 1994, and

thereafter continued to operate its retroviral diagnostic testing

business   as  debtor-in-possession.    Its  reorganization  plan

proposed that CBC assume both cross-licenses, see 11 U.S.C.   365                                                           

(executory  contracts),2  continue   to  operate  its  retroviral

diagnostics  division  utilizing Pasteur's  patented  HIV2 proce-

dures, and sell  all CBC stock  to a subsidiary of  bioMerieux, a

giant  French  biotechnology  corporation  and  Pasteur's  direct

                                                            

     1These cross-licenses expressly  provide that  Massachusetts
law governs  their interpretation.    See Royalty-Free  Cross-Li-                                                   
cense, at   9; Royalty-Bearing Cross-License, at   10. 

     2The  parties agree that  the cross-licenses  are "executory
contracts,"  since substantial  performance remains  due by  both
parties.   See Summit Inv. &amp; Dev. Corp. v. Leroux (In re Leroux),                                                                         
69 F.3d 608, 610 n.3 (1st Cir. 1995).

                                3

competitor in international biotechnology  sales.  Pasteur previ-

ously had licensed bioMerieux to use its HIV2 procedures, but the

earlier  license  related to  a  single  product manufactured  by

bioMerieux (i.e., bioMerieux's  VIDAS automated immunoassay  test                          

system),  and applied only to  VIDAS sales in  markets other than                                                                           

the United  States, Canada,  Mexico, Australia, and  New Zealand,

markets expressly encompassed within the CBC cross-licenses.  

          Not surprisingly, in due course Pasteur objected to the

Plan.  Citing  Bankruptcy Code    365(c), 11 U.S.C.    365(c), it

contended  that the  proposed sale of  CBC's stock  to bioMerieux

amounted  to CBC's  assumption of  the patent  cross-licenses and

their  de facto "assignment" to a third party in contravention of                         

the presumption  of  nonassignability  ordained  by  the  federal

common law of patents, as  well as the explicit  nonassignability

provision  contained in  the cross-licenses.   Isabelle  Bressac,

Pasteur's licensing  director,   attested that Pasteur  would not

have  granted  its competitor,  bioMerieux,  or  a subsidiary,  a

patent license under the terms allowed CBC.                                                         

          The  bankruptcy  court  authorized  CBC  to  assume the

cross-licenses  over  Pasteur's objection.    It  ruled that  the

proposed sale of  CBC stock to bioMerieux did not constitute a de                                                                           

facto  "assignment"  of  the cross-licenses  to  bioMerieux,  but               

merely  an assumption  of the  cross-licenses by  the reorganized

debtor  under new  ownership, and  that Bankruptcy Code    365(c)

enabled CBC to assume the cross-licenses  as debtor-in-possession

because  the prepetition  licensing relationship  between Pasteur

                                4

and CBC was neither "unique" nor "something in the category of  a

personal services contract."  In  re Cambridge Biotech Corp., No.                                                                      

94-43054, slip op. at 17-18, 24 (Bankr. D. Mass. Sept. 18, 1996);

Tr.  176-77.3   The district  court upheld  the  bankruptcy court

ruling on intermediate appeal. 

                                II                                          II

                            DISCUSSION                                      DISCUSSION                                                

A.   Appellate Jurisdiction          A.   Appellate Jurisdiction                                     

          Citing  our decision  in  Rochman  v. Northeast  Utils.                                                                           

Serv.  Group (In re Public Serv. Co.  of N.H.), 963 F.2d 469 (1st                                                       

Cir.) ("Public Service"), cert. denied,  506 U.S. 908 (1992), CBC                                                

now moves to dismiss  the appeal for lack of  appellate jurisdic-

tion.   It contends that  Pasteur failed to  pursue all available

remedies  for preserving  a  temporary stay  of the  confirmation

order pending appeal after  this court lifted the temporary  stay

on October 9,  1996.4  See  Trone v. Roberts  Farms, Inc. (In  re                                                                           

Roberts Farms, Inc.), 652  F.2d 793, 798 (9th Cir.  1981) (noting                             

that appellant should  file motion to stay  judgment with Circuit

                                                            

     3The bankruptcy court  further found that the  Plan had been
proposed  in good faith, see 11 U.S.C.   1129(a)(3), and that the                                      
stock sale to bioMerieux had been negotiated in good faith and at
arm's  length.  In re Cambridge Biotech Corp., No. 94-43054, slip                                                       
op. at 7, 12.

     4A series of stays had  prevented CBC from consummating  the
Plan  by August 2, 1996,  as scheduled, and  a final consummation
date was set  for October 31, 1996.  In  early October, CBC asked
this  court to  vacate the  pending stay,  claiming that  further
delay threatened irreparable injury.   It represented that almost
half its  employees had quit  during the preceding  year, jittery
clients  had begun to cancel contracts, and that its revenues had
declined by 10%.

                                5

Justice if  necessary).  Since CBC  substantially consummated its                                                                       

Plan on October 21, 1996, it argues that Pasteur can no longer be

afforded  complete  relief because  neither  this  court nor  the

bankruptcy  court has  jurisdiction over  the many  third parties

affected by, and  much of  the res distributed  pursuant to,  the                                            

consummated  Plan.  Finally, CBC argues, no court can now provide

Pasteur with meaningful partial relief, such as selective rescis-

sion of the stock sale or the cross-license assumption/assignment

provisions, because  retention of these cross-licenses  by CBC is

indispensable to any successful reorganization  of its retroviral

diagnostics business,  and,  from bioMerieux's  standpoint, is  a

"deal-busting" component  of  the  Plan.   See  Plan     IX.B.2.a                                                        

("[P]rovisions of  the Confirmation  Order  are nonseverable  and

mutually dependent.").  We disagree.

          Contrary  to  CBC's   suggestion,  our  Public  Service                                                                           

decision does not reduce  to the simplistic theme  that appellate

courts  invariably are deprived  of jurisdiction by  the lack (or

premature  dissolution) of  a stay  which results  in substantial

plan  consummation  prior to  final  disposition  of the  appeal.

Rather, we rested our decision in Public Service primarily on two                                                          

circumstantial considerations.  See  In re Andreuccetti, 975 F.2d                                                                 

413, 418 (7th  Cir. 1992)   (noting that  Public Service  contem-                                                                  

plates that "'[t]he court should reach a determination upon close

consideration  of the relief sought in light  of the facts of the

particular case'") (citation omitted).  

          First, the equities weighed heavily against the  appel-

                                6

lants in  Public Service, who repeatedly  and inexplicably failed                                  

to avail themselves of interlocutory appeals from earlier denials

of their requests for stay by the courts below.  As a consequence

of their notable  lack of  diligence, a full  sixteen months  had

elapsed from the date  of confirmation, during which "implementa-

tion of the confirmed plan proceeded apace."  In re Public Serv.,                                                                          

963  F.2d at 472.  In contrast, Pasteur assiduously preserved its

stay throughout  the three-month  period which  elapsed following

confirmation, and, on the day  this court dissolved the temporary

stay, we expedited the Pasteur appeal. 

          Second, Public Service involved  extraordinarily intri-                                          

cate Plan  provisions, as well  as a multi-billion  dollar enter-

prise,  with  the  result  that any  attempted  Plan  dismantling

following  the  substantial  and unexcused  lapses  by appellants

would have produced "'a  nightmarish situation for the bankruptcy

court on remand.'"   Id.  at 474 (citation  omitted); see,  e.g.,                                                                          

Baker &amp; Drake, Inc. v. Public Serv. Comm'n of Nev., 35 F.3d 1348,                                                            

1351-52 (9th  Cir.  1994) (finding  appellate  jurisdiction,  and

noting that  reorganization plan  at  issue was  "not a  complex,

billion-dollar affair"  like the plans  in Trone and  Public Ser-                                                                           

vice).  Although  the CBC Plan is  not without its  own complexi-              

ties,  CBC is a much less complex enterprise than Public Service,

and its Plan was substantially consummated much  more recently in

relation to the date of appeal.5         
                                                            

     5The  equitable  and  pragmatic  tests  employed  in  Public                                                                           
Service are  symbiotic.  See In  re UNR Indus., 20  F.3d 766, 769                                                        
(7th Cir.), cert. denied, 115 S. Ct. 509 (1994) ("There  is a big                                  

                                7

          We need not resolve  the jurisdictional challenge urged

upon us by CBC, however, since the merits of Pasteur's contention

    that CBC's assumption of  the cross-licenses and  its sale of

stock to  the bioMerieux subsidiary contravene  Bankruptcy Code  

365(c)     are readily dispatched.  See Casco N. Bank. N.A. v. DN                                                                           

Assocs.  (In re  DN  Assocs.), 3  F.3d 512,  515 (1st  Cir. 1993)                                      

(noting that  appellate court may bypass jurisdictional questions

where appeal  would falter on merits  even assuming jurisdiction)

(citing Norton v. Mathews, 427 U.S. 524, 532 (1976)).                                   

B.   The Merits6          B.   The Merits                         

          Pasteur argues  that the  CBC Plan  effects a  de facto                                                                           

assignment of  its two cross-licenses to  bioMerieux, contrary to

Bankruptcy Code   365(c)(1) which provides as follows: 

          The trustee  [viz., CBC]7  may not assume  or                                      
          assign any executory contract . . . , whether
          or not such contract  . . . prohibits or  re-
          stricts assignment of rights or delegation of
          duties, if    

               (1)(A) applicable law excuses  a party[]
               other than the debtor[]  [viz., Pasteur]                                                       
               to  such contract .  . .  from accepting
                                                            

difference between inability to alter the outcome (real mootness)
and unwillingness to  alter the outcome  ('equitable mootness'),"
and "[u]sing one  word for two  different concepts breeds  confu-
sion"; instead, appellate courts  ultimately must ask "whether it
is  prudent  to upset  the plan  of  reorganization at  this late
date.") (citations omitted). 

     6We review the district court's  conclusions of law de  novo                                                                           
and the bankruptcy court's findings of fact for clear error only.
See Petit v. Fessenden, 80 F.3d 29, 32 (1st Cir. 1996).                                

     7As  debtor-in-possession,  CBC has  substantially  the same
rights and powers as a chapter 11 trustee, including the power to
assume executory contracts under  Bankruptcy Code   365.   See 11                                                                        
U.S.C.   1107.

                                8

               performance  from  or rendering  perfor-
               mance to an entity other than the debtor
               or the debtor in possession,  whether or
               not such contract . . . prohibits or re-
               stricts assumption or assignment; and 

               (B)  such party [viz., Pasteur] does not                                             
               consent to such assumption or assignment
               . . . .

11 U.S.C.   365(c)(1). 

          Pasteur  argues that  in  order  to  encourage  optimum

product  innovation the  federal common  law of  patents presumes

that patent licensees, such  as CBC, may not sublicense  to third

parties absent  the patent holder's consent.   See, e.g., Commis-                                                                           

sioner v. Sunnen, 333 U.S. 591, 609  (1948).  This federal common                          

law  rule of  presumptive nonassignability  thus qualifies  as an

"applicable  law,"  within  the  meaning  of  Bankruptcy  Code   

365(c)(1)(A),  which precludes  Pasteur from  being  compelled to

accept  performance  from  any entity  other  than  CBC     e.g.,                                                                          

bioMerieux's subsidiary    and therefore prevents CBC from either                                                                           

assuming  or assigning  these cross-licenses.   See  Everex Sys.,                                                                           

Inc.  v. Cadtrak  Corp. (In re  CFLC, Inc.), 89  F.3d 673, 679-80                                                    

(9th Cir. 1996) (federal  patent law of nonassignability preempts

state law  relating to  patent license assignability).   Further,

says Pasteur,  even assuming that  section 365(c)  might allow  a

debtor simply  to assume the cross-licenses  without a subsequent                                                                           

assignment  to a third  party, CBC formally  structured this Plan                                                     

transaction as an assumption by the debtor-in-possession, whereas

in  substance  it  was an  assignment  of  the cross-licenses  to                       

bioMerieux, a  complete stranger to  the original cross-licensing

                                9

agreements. 

          These  contentions are  foreclosed by  our decision  in

Summit Inv.  &amp; Dev. Corp. v.  Leroux (In re Leroux),  69 F.3d 608                                                            

(1st  Cir.  1995),8  which  analyzed  and  interpreted  companion

Bankruptcy  Code subsections  365(c) and  (e) and  their relevant

legislative history.9  As in the present case, in  Leroux we were                                                                   

urged  to  interpret subsections  365(c) and  (e) as  mandating a

"hypothetical  test."   Under such  an  approach, the  chapter 11

debtor  would lose its option to assume the contract, even though                                                 

it  never intended to assign  the contract to  another entity, if

either  the  particular  executory  contract  or  the  applicable

nonbankruptcy law  purported to terminate  the contract automati-

cally  upon the filing of the chapter  11 petition or to preclude

its assignment to an  entity not a party to the contract.  Id. at                                                                        

612.   

          We rejected  the proposed hypothetical test  in Leroux,                                                                          

holding  instead that  subsections 365(c)  and (e)  contemplate a

case-by-case inquiry  into  whether the  nondebtor  party  (viz.,                                                                          
                                                            

     8See  Williams v. Ashland Eng'g  Co., 45 F.3d  588, 592 (1st                                                   
Cir.) ("In  a multi-panel circuit, newly  constituted panels are,
for  the most  part, bound  by prior  panel decisions  closely on
point."), cert. denied, 116 S. Ct. 51 (1995).                                

     9Bankruptcy Code   365(e)(2)(A) provides that a statutory or
contractual termination  provision, which is  contingent upon the
filing of a bankruptcy petition, may be enforceable in bankruptcy
if the "applicable law excuses a party, other than the debtor, to
such contract or lease from accepting performance from or render-
ing performance to the trustee or to an assignee of such contract                                                          
or  lease, whether  or not  such contract  or lease  prohibits or
restricts assignment of rights or delegation of duties;  and (ii)
such  party does not consent to such assumption or assignment . .
. ."  11 U.S.C.   365(e)(2)(A) (emphasis added).

                                10

Pasteur) actually  was being "forced to  accept performance under                           

its executory contract  from someone other than  the debtor party

with whom it originally  contracted."  Id.  Where  the particular                                                    

transaction  envisions that the debtor-in-possession would assume

and  continue to perform  under an executory  contract, the bank-

ruptcy court  cannot simply presume  as a matter of  law that the

debtor-in-possession is a legal  entity materially distinct  from                                                            

the  prepetition  debtor with  whom  the  nondebtor party  (viz.,                                                                          

Pasteur) contracted.  Id.  at 613-14 (citing H.R. Rep.  No. 1195,                                   

96th  Cong.,  2d  Sess.      27(b)  (1980);  NLRB  v.  Bildisco &amp;                                                                           

Bildisco, 465 U.S. 513,  528 (1984)).  Rather, "sensitive  to the                  

rights of  the nondebtor  party (viz., Pasteur),"  the bankruptcy                                               

court  must focus on the  performance actually to  be rendered by

the  debtor-in-possession  with  a  view  to  ensuring  that  the

nondebtor party (viz., Pasteur) will receive "the full benefit of                              

[its] bargain."   Id.  at 612-13  (citing S.  Rep. No.  989, 95th                               

Cong., 2d Sess.  59 (1978), reprinted in 1980  U.S.C.C.A.N. 5787,                                                  

5845). 

          Given the pragmatic  "actual performance" test  adopted

in Leroux, the ultimate  findings of fact and conclusions  of law                   

made by  the bankruptcy court10  below did not  constitute error.

CBC simply does  not occupy the  same position  as the debtor  in

CFLC,  Inc.,  89 F.3d  673 (9th  Cir.  1996), upon  which Pasteur                     
                                                            

     10We  are not  persuaded  by Pasteur's  contention that  the
failure to cite Leroux  in the confirmation order  indicates that                                
the bankruptcy court failed  to follow it.  Pasteur  itself cited
Leroux  at the July 1996 confirmation hearing, and the bankruptcy                
court's ultimate findings faithfully track its model. 

                                11

relies most heavily.  The Plan in CFLC, Inc. unmistakably provid-                                                      

ed for an outright  assignment of the debtor's patent  license to                                        

an entirely  different corporation  with which the  patent holder

Cadtrak Corporation had  never contracted.   Id. at  679-80.   By                                                          

contrast, CBC all along has conducted, and  proposes to continue,

its retroviral diagnostic enterprise as the same corporate entity

which  functioned prepetition,  while  utilizing  Pasteur's  HIV2

procedures in that same prepetition endeavor.  

          Pasteur nonetheless insists that the reorganized CBC is

different than  the prepetition  entity,  not due  merely to  its

chapter 11 filing  but because  it is  now owned  by a  different                                                              

legal entity  than before    namely,  bioMerieux's subsidiary qua                                                                           

CBC shareholder.  Pasteur's contention finds no support, however,

either in Massachusetts law, see  supra note 1, or in the  cross-                                                 

license provisions it negotiated. 

          Stock sales are not  mergers whereby outright title and

ownership of  the  licensee-corporation's assets  (including  its

patent licenses) pass to the acquiring corporation.  Rather, as a

corporation, CBC "is a legal entity distinct from its  sharehold-

ers." Seagram  Distillers  Co.  v.  Alcoholic  Beverages  Control                                                                           

Comm'n, 519 N.E.2d  276, 281  (Mass. 1988) (citing  6 William  M.                

Fletcher, Cyclopedia of Corporations   2456 (1979 &amp; Supp. 1986)).

Absent compelling  grounds for  disregarding its  corporate form,

therefore, CBC's  separate legal  identity, and its  ownership of

the  patent cross-licenses, survive without interruption notwith-

standing repeated and even drastic changes in its ownership.  See                                                                           

                                12

id.  (holding that  corporation's sale of  all its  capital stock             

does  not  alter  its identity,  nor  effect  a  transfer of  the

corporation's  executory  contracts or  licenses);  see  also PPG                                                                           

Indus.  v. Guardian Indus. Corp., 597 F.2d 1090, 1096 (6th Cir.),                                          

cert. denied, 444 U.S. 930 (1979) (same; distinguishing mere sale                      

of  stock from a transfer of  patent license as part of corporate

merger wherein  merging licensee  ends its corporate  existence).

Pasteur cites no apposite authority to the contrary.

          Furthermore, Pasteur's position finds no support in the

negotiated  terms of its cross-licenses.  As the patent holder   

and given  CBC's corporate  form and the  governing Massachusetts

law, supra    Pasteur was free to negotiate restrictions on CBC's                    

continuing rights  under the  cross-licenses based on  changes in

its  stock ownership  or  corporate control.    See id.  at  1095                                                                 

(parties may override law of merger by negotiating express patent

license  provision); see  also Seagram,  519 N.E.2d  at 280-81.11                                                

Nevertheless,  these cross-licenses  contain no  provision either

limiting  or terminating  CBC's  rights in  the  event its  stock

ownership  were to  change hands.   The  generic nonassignability

provisions found in these cross-licenses, see, e.g., Royalty-Free                                                             

Cross-License,  at    7.1 ("This  Agreement .  . . has  been made

solely  for  the benefit  of the  parties  hereto" and  "no other

person shall acquire or have any right under or by virtue of this
                                                            

     11Notwithstanding Pasteur's reliance on the important policy
goals animating the federal  common law of patents,  the product-
innovation  theme promoted under patent law  may well be accommo-
dated by allowing patent  holders to control sublicensing through                                                                           
negotiated contract restrictions.                                           

                                13

Agreement."), plainly  do not address the  circumstance presented

here.   Rather, these nonassignability provisions  simply beg the

essential question, which is whether  bioMerieux's subsidiary, by

virtue  of its acquisition of  CBC stock, terminated CBC's rights                                                                  

under the cross-licenses.  Interpreted as Pasteur proposes, CBC's

own  rights under  the  cross-licenses would  terminate with  any                                                                           

change in the identity of any CBC stockholder.  

          Other   cross-license   provisions  directly   undercut

Pasteur's interpretation as well.  See Willitts v. Roman Catholic                                                                           

Archbishop of Boston,  581 N.E.2d 475,  478 (Mass. 1991)  (noting                              

that a contract  must be interpreted as  a whole).  These  cross-

licenses  explicitly authorize  CBC to  share its  license rights

with  any  "affiliated company,"  which  on  its face  presumably

encompasses a parent corporation such as bioMerieux's subsidiary.

Cross-Licenses, at    1.4  (defining "Affiliated Company"  as "an

organization  which controls  . .  . a  party or  an organization

which is under common  control with a party"); see  supra Section                                                                   

I.  Yet  more importantly,  CBC insisted upon  a provision  which

would afford it the unilateral right to terminate any  sublicense

Pasteur  might extend  to a  company called  Genetic Systems  "if

control of Genetic Systems shall .  . . be acquired, directly  or

indirectly, by  any  person  or group  of  connected  persons  or

company not having  such control  at the date  hereof, by  recon-

struction,  amalgamation,  acquisition  of  shares or  assets  or                                                                           

otherwise."    Royalty-Free  Cross-license,  at    2.3  (emphasis                   

added);  see PPG  Indus., 597  F.2d at  1096 (noting  that patent                                  

                                14

holder's express reservation of  change-of-stock-ownership condi-

tion  in  two patent  licenses  suggested  its intention  not  to

reserve  condition  in  nine  other patent  licenses);  see  also                                                                           

Plumbers &amp; Steamfitters Local 150 v. Vertex Constr. Co., 932 F.2d                                                                 

1443, 1449 (11th Cir. 1991)  ("[T]he doctrine of expressio  unius                                                                           

est  exclusio alterius  instructs that  when certain  matters are                                

mentioned in a contract, other similar matters not mentioned were

intended  to be  excluded.").   Taken together,  these provisions

persuade  us  that Pasteur  foresaw,  or  reasonably should  have

foreseen, that CBC might undergo changes of stock ownership which

would  not alter  its corporate  legal identity,  but nonetheless

chose  not to  condition  the continued  viability of  its cross-

licenses accordingly.12 
                                                            

     12Lastly, Pasteur  misplaces  reliance upon  In  re  Alltech                                                                           
Plastics, Inc., 5 U.S.P.Q.2d 1806 (Bankr. W.D. Tenn. 1987), where                        
it  was held that section  365(c) precluded an  entity, which had
acquired the corporate  debtor's stock pursuant  to a chapter  11
reorganization plan, from exercising  the debtor's rights under a
prepetition  patent license.    Following the  conversion of  its
original  chapter 11 reorganization case  to a chapter 7 liquida-
tion, Alltech  discontinued  all operations  and  discharged  its
employees.  Before the debtor once again converted to chapter 11,
its trustee  liquidated virtually all its assets,  except for its
patent license.  Noting  that plan confirmation is a  fact-inten-
sive,  equity-based inquiry,  id. at  1813, the  bankruptcy court                                           
characterized the sale of  Alltech's stock to Fluoropak Container
Corporation as a de facto assignment  of the patent license to  a                                   
noncontracting party.  It so held because unlike CBC, Alltech had                                                              
ceased to exist except as a "shell."   Id. at 1807 &amp; 1810 (noting                                                    
that "shell" emerging after Alltech's chapter 7 conversion "is in
reality  a different entity  than the prepetition  Debtor").  The
bankruptcy   court  specifically  observed  that  the  "attempted
innovative rebirth of  a corporate  shell is not  analogous to  a
sale of stock by an active corporation," id. at 1810-11, and that                                                      
"the present case is distinguished from  one where the reorganiz-
ing debtor, operating continuously and in good standing  with its
licensor,  seeks to  approve the  sale of its  stock [to  a third
party],"  id. at 1812.   The bankruptcy court  further noted that                       

                                15

                               III                                         III

                            CONCLUSION                                      CONCLUSION                                                

          As  CBC  remains in  all  material  respects the  legal

entity with which Pasteur freely contracted, Pasteur has not made

the required individualized  showing that  it is or  will be  de-

prived of "the full benefit of [its] bargain," Leroux, 69 F.3d at                                                               

612-13, under the ruling challenged on  appeal.  Accordingly, the                                                                           

district  court judgment  is affirmed  and  costs are  awarded to                                                                           

appellee.                  

          So ordered.                    So ordered.                              

                                                            

the lack of demonstrated  expertise on the part of  Fluoropak, in
utilizing  the  patented  process to  manufacture  toxic-material
containers, likewise  posed a  serious public safety  risk.   Id.                                                                           
These distinguishing circumstances make Alltech inapposite.                                                         

                                16
