
USCA1 Opinion

	




                            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 &             _____________________             __________________      _______        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  & 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. & 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 & 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.  & 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 &                                                       ____      __________          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 & 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 & 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 & 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
