                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 23 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PACESETTER, INC, a Delaware                      No. 12-55564
corporation, DBA St. Jude Medical
CRMD,                                            D.C. No. 2:11-cv-03964-RSWL-
                                                 SH
              Plaintiff-counter-defendant -
Appellee,
                                                 MEMORANDUM *
  v.

SURMODICS, INC., a Minnesota
corporation,

              Defendant-counter-claimant -
Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                 Ronald S.W. Lew, Senior District Judge, Presiding

                        Argued and Submitted May 8, 2013
                              Pasadena, California

Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.

       In this diversity action arising under Minnesota law, SurModics, Inc. appeals

the district court’s summary judgment order denying its claims for additional


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
royalties under its licensing agreement with Pacesetter, Inc. We have jurisdiction

under 28 U.S.C. § 1291 and review de novo a district court’s summary judgment.

Universal Health Servs., Inc. v . Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004).

We affirm. Our reasoning tracks that of the district court.

      The parties are familiar with the facts and prior proceedings. Remarkably,

both parties urge us to conclude that the language of the licensing agreement is

unambiguous as to whether SurModics was entitled to royalties on products

manufactured before, but sold after, the agreement’s expired. Paragraph five states

that “royalties” must be paid “for each quarter of each calendar year during the

term of [the] Agreement.” “Term” is defined by paragraph eight to “extend ... until

expiration of the last-to-expire patent ... that covers that product.” Attachment B2

provides that quarterly royalties are based on the greater of a specified minimum or

a percentage of net sales. We agree with the district court that the contract’s

language limits Pacesetter’s obligation to pay royalties to those products it sold

during the term of the agreement. No other obligation to pay exists.

      AFFIRMED.




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