PERIRX, INC. v. THE REGENTS UNIVERSITY OF CALIFORNIA et al

Filing 164

MEMORANDUM AND/OR OPINION RE: MOTIONS FOR SUMMARY JUDGMENT. SIGNED BY DISTRICT JUDGE JOSHUA D. WOLSON ON 01/10/2022. 01/10/2022 ENTERED AND E-MAILED.(ja)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
:
:
:
Plaintiff,
:
:
v.
:
:
THE REGENTS OF THE UNIVERSITY
:
OF CALIFORNIA, et al.,
:
:
Defendants.
:
____________________________________:

PERIRX, INC.,

Case No. 2:20-cv-02212-JDW

MEMORANDUM
Running a startup is like going all-in in a poker game: someone takes a
heightened risk of failure in exchange for the promise of a great reward. Good
poker players and good businessmen make those bets based on the information
they have, but no amount of information can eliminate the risk of failure. PeriRx,
Inc. went all-in on technology that it licensed from RNAmeTRIX, Inc., and which
RNA had licensed from the Regents of the University of California. PeriRx’s bet
didn’t pay off, but it thinks the game was rigged, so it has sued RNA for breach of
contract.
After more than 18 months of litigation, PeriRx and RNA each seek summary
judgment to avoid a trial. After reviewing both motions, the Court concludes that
PeriRx’s remaining claims fail for at least two reasons. First, PeriRx’s First Amended
Complaint (“FAC”) does not mention many of the supposed breaches that PeriRx
cites (nor does its original Complaint), so they are not at issue in the case. Second,

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PeriRx seeks to hold RNA liable for conduct in which it did not participate. These
and other flaws mean there are no triable issues of fact on these remaining claims.
The Court will enter summary judgment on all of PeriRx’s remaining claims.
I.

BACKGROUND 1
A.

Dr. Wong, RNA, And The License Agreement

David T.W. Wong is a tenured professor at the UCLA School of Dentistry. Dr.
Wong has a lab at UCLA where he has conducted research that has resulted in
several patent applications that list him as an inventor. Dr. Wong is also a
businessman. In 2007, he founded RNA. Dr. Wong’s ex-wife, Sharon Wong, was a
shareholder, director, and an officer of RNA, but she has had no role in the
company since she and Dr. Wong divorced in 2014. Since then, Dr. Wong has
been the only individual affiliated with RNA. In fact, RNA never had any
employees or an office.
On January 23, 2008, the Regents and RNA entered into an Exclusive Option
Agreement (the “Option Agreement”), 2 which gave RNA the option to obtain an
exclusive license to certain of the Regents’s patent rights on the terms set forth in
an attached license agreement, among other things. After executing the Option
Agreement, RNA started to look for a sublicensee. It learned about PeriRx in 2009,

For the sake of brevity, the Court recites only those facts relevant to PeriRx’s
and RNA’s cross-motions for summary judgment, as to PeriRx’s claims against RNA.
2
The Regents and RNA amended the Option Agreement numerous times,
but none of those amendments bears on the Court’s resolution of the present
cross-motions for summary judgment.
1

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when one of PeriRx’s partners, Dr. Jack Martin, contacted Dr. Wong. The following
year, RNA and PeriRx started discussing a potential license agreement.
Eventually, RNA exercised the option in the Option Agreement. On
December 17, 2010, the Regents and RNA executed the Exclusive License
Agreement (the “UCLA Agreement.”). The UCLA Agreement granted RNA an
exclusive license under the Regents’s patent rights to make, use, sell, offer for sale,
and import licensed products and services.
On December 20, 2010, RNA and PeriRx entered into an Exclusive License
Agreement, by which PeriRx sublicensed licensing rights that RNA had licensed
from the Regents (the “Original Agreement”). The Parties amended the Original
Agreement in October of 2012 (the “Amended Agreement”). On December 19,
2014, RNA and PeriRx entered into a First Amendment to Amended and Restated
Exclusive License Agreement (the “First Amendment”). The First Amendment
contains a mutual release of all claims that arose on or prior to its effective date
(the “Release”). In August 2017, the Parties entered into a Second Amendment
to Amended and Restated Exclusive License Agreement (the “Second
Amendment”).

The Court refers to the Original Agreement, the Amended

Agreement, the First Amendment, and the Second Amendment between PeriRx
and RNA, together, as the “License Agreement.” The License Agreement
terminated on March 15, 2019.

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B.

The Point-Of-Care Patents

The Regents filed UCLA Case No. 2008-306, entitled, “Probe Immobilization
and Signal Amplification for Polymer-Based Biosensor” as Provisional Application
No. 61/220,490 and then as U.S. Pat. App. No. 12/823,988. The patent issued as
U.S. Patent No. 9,127,304 (the “Probe Immobilization Patent”). PeriRx sublicensed
the Probe Immobilization Patent and another patent, UCLA Case No. 2007-527,
entitled “High Specificity and High Sensitivity Detection Based on Steric Hindrance
and Enzyme-Related Signal Amplification” (the “High Specificity Patent”), via the
Original Agreement. 3 (ECF No. 139 at ¶¶ 15, 43.) On March 7, 2012, the Regents
sought to amend certain claim language in the Probe Immobilization Patent to
add a claim limitation that requires DNA dendrimers.
On October 24, 2017, the Regents granted an exclusive license to Aruras
Holdings LLC to U.S. Patent No. 9,932,635 (the “EFIRM Patent”). The EFIRM Patent
resulted from UCLA Case No. 2011-696, entitled, “Method for Exosomal Biomarker
Detection by Electric Field-Induced Release and Measurement,” which the
Regents filed as U.S. Patent Application No. 14/119,843 and which the Patent and
Trademark Office issued on April 3, 2018. Previously, the National Cancer Institute
(“NCI”) awarded a grant to UCLA to develop a liquid biopsy for lung cancer in
connection with the EFIRM Patent.

The Court refers to the Probe Immobilization Patent and the High Specificity
Patent as the “Point-of-Care Patents.”

3

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It appears that the Regents and Dr. Wong expected Aruras to sublicense
the EFIRM Patent to EZLife Bio, Inc. At some point, however, Aruras’s license to the
EFIRM patent terminated. On February 18, 2020, the Regents licensed the EFIRM
Patent to Liquid Diagnostics LLC. Neither RNA nor PeriRx ever held a license for the
EFIRM Patent. The Regents also licensed another patent to Aruras and then Liquid
Diagnostics: UCLA Case No. 2014-190, entitled “Non-invasive Gene Mutation
Detection in Lung Cancer Patients (the “EGFR Patent”).
PeriRx contends that both the EFIRM Patent and the EGFR Patent
incorporate the same methods as the Probe Immobilization Patent that it had
sublicensed from RNA. PeriRx also contends that Dr. Wong and the Regents
worked behind the scenes to transfer PeriRx’s rights to the Point-of-Care Patents
to EZLife and, later, to Liquid Diagnostics. It also complains that, at some point, Dr.
Wong collaborated with both companies to conduct research and develop tests
for the detection of lung cancer and COVID-19. He performed this work in his lab
at UCLA. During their dealings with Dr. Wong, EZLife and Liquid Diagnostics
believed that Dr. Wong was acting in his capacity as a researcher and/or
professor at UCLA, rather than in his capacity as a corporate representative of
RNA. Neither company has had any business dealings with RNA.
C.

The Designated Indication Of Diabetes

The Regents filed UCLA Case No. 2013-794, entitled, “Salivary Biomarkers for
Prediabetes and Type 2 Diabetes” (the “Diabetes Markers”) as U.S. Patent App.
No. 14/522,975. On June 11, 2013, at PeriRx’s request, RNA obtained a license for
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the Diabetes Markers from the Regents. At that point, PeriRx and RNA deemed
the Diabetes Markers an “Additional Diagnostic Application” under the License
Agreement. In December 2014, the First Amendment added the Diabetes
Markers to the pool of intellectual property available to PeriRx. In August 2017,
PeriRx and RNA designated the Diabetes Markers as PeriRx’s Third Indication under
the License Agreement.
During this time, the National Institutes of Health (“NIH”), Delta DentalMichigan, the Barnes Fund for Head & Neck Cancer Research, and the O'Keefe
Foundation had awarded research grants to the Regents and the University of
Puerto Rico (“UPR”). The two universities collaborated on the research, which Dr.
Wong and Dr. Kaumudi Joshipura from UPR led. The grant funds paid for a large
clinical trial to identify salivary biomarkers for detecting insulin resistance. As a
result of that research collaboration, Dr. Wong submitted the invention report
resulting in UCLA Case No. 2016-086, entitled “Salivary Extracellular RNA
Biomarkers for the Detection of Insulin Resistance.” In June 2015, Dr. Joshipura
presented her and Dr. Wong’s findings regarding the Insulin Resistance Biomarkers
at the 75th American Diabetes Association (“ADA”) Annual Meeting. In May 2016,
the Regents filed a provisional patent application for the Insulin Resistance
Biomarkers (UCLA Case No. 2016-086) (the “Insulin Resistance Provisional
Application”). In May 2017, the Regents decided to abandon the Insulin
Resistance Provisional Application.

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In 2013, PeriRx asked Dr. Wong to use his lab at UCLA to perform an
exploratory analysis of the samples from the subjects of the UPR study for a
potential association of salivary biomarkers with insulin resistance. While Dr. Wong
conducted the exploratory analysis, neither he nor the Regents entered into a
sponsored research agreement with PeriRx to fund the validation of the insulin
resistance biomarker candidates. Instead, the Regents and Dr. Wong pursued this
research with Delta Dental and UPR. After learning that the Regents had
abandoned the Insulin Resistance Provisional Application, PeriRx asked the
Regents for possible ways that PeriRx could link the Insulin Resistance Biomarkers
to the patent application for the Diabetes Markers or pursue new intellectual
property related to insulin resistance and salivary biomarkers. Ragan Robertson
from the Regents suggested that one path forward would be to collaborate with
Dr. Joshipura and UPR. PeriRx contends that it could not pursue a consulting
agreement with Dr. Joshipura because the Regents and Dr. Wong refused to turn
over Dr. Joshipura’s patient samples from the clinical study.
D.

The Present Litigation

On May 28, 2020, PeriRx brought a lawsuit against the Regents, Dr. Wong,
RNA, EZLife, and Aruras. PeriRx voluntarily dismissed its claims against Aruras, and
the Court dismissed PeriRx’s claims against Dr. Wong and EZLife. On January 15,
2021, PeriRx filed a First Amended Complaint, asserting various breach of contract
claims against the Regents and RNA only. On December 10, 2021, the Court
granted summary judgment in favor of the Regents on all of PeriRx’s remaining
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claims. PeriRx contends that RNA committed various breaches of the exclusivity
provisions of the License Agreement with respect to the Point-of-Care Patents and
the Designated Indication of Diabetes.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) permits a party to seek, and a court

to enter, summary judgment “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “[T]he plain language of Rule 56[(a)] mandates the
entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quotations omitted). In ruling on a summary judgment motion, a court must “view
the facts and draw reasonable inferences ‘in the light most favorable to the party
opposing the [summary judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378
(2007) (quotation omitted). However, “[t]he non-moving party may not merely
deny the allegations in the moving party’s pleadings; instead he must show where
in the record there exists a genuine dispute over a material fact.” Doe v. Abington
Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citation omitted); see also Fed. R.
Civ. P. 56(c)(1)(A)-(B).
The filing of cross-motions does not change this analysis. See Transportes
Ferreos de Venezuela II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001). It “does
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not constitute an agreement that if one is rejected the other is necessarily justified
or that the losing party waives judicial consideration and determination whether
genuine issues of material fact exist.” Id. (quotation omitted). Rather, “[w]hen
confronted with cross-motions for summary judgment ‘the court must rule on each
party’s motion on an individual and separate basis, determining, for each side,
whether a judgment may be entered in accordance with the Rule 56 standard.’”
Canal Ins. Co. v. Underwriters at Lloyd’s London, 333 F. Supp. 2d 352, 353 n.1 (E.D.
Pa. 2004), aff’d, 435 F.3d 431 (3d Cir. 2006).
III.

DISCUSSION
A.

Judicial Notice

At any stage of the proceeding, the Court “must take judicial notice if a
party requests it and the court is supplied with the necessary information.” Fed. R.
Evid. 201(c)(2), (d). RNA asks the Court to take judicial notice of various patents,
patent applications and publications, and certain grant records that are publiclyavailable on the NIH website. (ECF No. 121-140.) PeriRx has not opposed RNA’s
request. Therefore, the Court will grant RNA’s request for judicial notice of the fact
of those various publications, though the Court need not and has not assessed
their accuracy.
B.

Alleged Breaches Not Identified In The FAC

PeriRx attempts to avoid summary judgment by pointing to alleged
breaches that it never asserted in the FAC. But “a ‘plaintiff may not amend his
complaint through arguments in his brief in opposition to a motion for summary
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judgment.’” Waugaman v. City of Greensburg, 841 F. App’x 429, 433 (3d Cir. 2021)
(quoting Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)); see also
Harmon v. Sussex Cty., 810 F. App’x 139, 142 (3d Cir. 2020); Ragland v. Comm’r
New Jersey Dep’t of Corr., 717 F. App’x 175, 179 (3d Cir. 2017). That means PeriRx
cannot pursue alternate breach of contract claims at this stage of the
proceedings. Three of its theories fail for this reason.
First, RNA’s alleged failure to advise or consult with PeriRx regarding the
decision to limit the Probe Immobilization Patent to DNA dendrimers does not
create a triable issue of fact. PeriRx makes no allegations about that conduct in
the FAC. Even if PeriRx could rely on this new factual basis, the Release would bar
it. The Regents sought to amend the relevant claim language in the Probe
Immobilization Patent Application on March 7, 2012, and the Release bars claims
that arose prior to December 19, 2014. The Court has already ruled that PeriRx
“may not rely on any conduct that occurred prior to December 19, 2014, as a
basis for any of its claims.” (ECF No. 62 at ¶ 27.)
Second, PeriRx cannot pursue a claim against RNA based on Dr. Wong’s or
the Regents’s alleged failure to enter into a sponsored research agreement with
PeriRx to validate the insulin resistance biomarker candidates. Again, PeriRx does
not raise this factual allegation anywhere in the FAC, so it cannot rely on it now.
In any event, PeriRx does not point to any evidence demonstrating why RNA is
liable for Dr. Wong’s or the Regents’s refusal to enter into a sponsored research
agreement. Nothing suggests that Dr. Wong was acting on behalf of RNA, rather
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than in an individual capacity or as a UCLA researcher and/or professor. RNA had
no role to play in PeriRx’s desire to have Dr. Wong conduct academic research in
his lab at UCLA. Nor does PeriRx articulate any provision of the License Agreement
that might apply. Thus, this new claim would fail as well.
Third, PeriRx’s new allegations concerning the EGFR Patent are also
unavailing. PeriRx appears to have made a single, non-specific reference to this
patent in the FAC (ECF No. 71 at ¶ 121), but there are no allegations that the EGFR
Patent “incorporates the same methods as the Probe Immobilization Patent for
detecting EGFR mutations in saliva.” (ECF No. 139-1 at ¶ 114.) Indeed, the FAC
does not identify the EGFR Patent by name, let alone put anyone on notice that
that technology is a basis for PeriRx’s breach of contract claims. Moreover,
PeriRx’s passing reference in the FAC to the EGFR Patent does not attribute any
conduct to RNA or otherwise put RNA on notice that PeriRx is asserting this claim
against it. Instead, the allegations make clear that the Regents—not RNA—filed
and amended the EGFR Patent application.
C.

Alleged Breaches By Parties Other Than RNA

Each of PeriRx’s remaining claims against RNA fails because PeriRx has no
evidence that RNA engaged in the conduct that allegedly breached the License
Agreement. Instead, PeriRx points to conduct by the Regents and Dr. Wong and
seeks to hold RNA liable for it, without any basis to do so.

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1.

The Regents

RNA is not an alter ego of the Regents. See PeriRx, Inc. v. The Regents of the
University of California, No. 20-cv-2212, 2021 WL 5865561, at *5 (E.D. Pa. Dec. 10,
2021). Yet PeriRx contends that RNA has breached the License Agreement based
on the Regents’ conduct. All of these claims against RNA must fail.
First, PeriRx cannot hold RNA liable for licensing the EFIRM Patent to third
parties such as Aruras and Liquid Diagnostics. The Court is at a loss as to why PeriRx
continues to press this theory as to Aruras, when the Court has dismissed this claim
against RNA on two separate occasions. (See ECF No. 62 at ¶ 37; ECF No. 90 at ¶
14.) Even if PeriRx could pursue this claim, it would nevertheless fail. As an initial
matter, RNA has never held a license for the EFIRM Patent, so it could never have
sublicensed the patent to anyone else. PeriRx admits that the Regents—not
RNA—granted a license to Aruras for the EFIRM Patent. PeriRx also admits that the
Regents—not RNA—licensed the EFIRM Patent to Liquid Diagnostics. In addition,
the granting of that license could never constitute a breach of the License
Agreement because the License Agreement, and PeriRx’s corresponding rights
under it, terminated on March 15, 2019, and the Regents did not license the EFIRM
Patent to Liquid Diagnostics until February 18, 2020. Thus, even if PeriRx had any
rights to the EFIRM Patent or its methods, those rights terminated long before the
Regents granted a license to Liquid Diagnostics.
Second, to the extent that PeriRx contends that RNA breached the License
Agreement by developing the EFIRM Patent and/or obtaining a grant from the
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NCI, those claims would fail because RNA did not do either of those things. The
Regents applied for the EFIRM Patent, and the NCI issued the grant award to the
Regents—not RNA. (ECF No. 139 at ¶¶ 45-48, 77.) There is no evidence that RNA
was involved at all with any of those activities.
Third, to the extent that PeriRx contends that RNA breached the License
Agreement by obtaining grants from the NIH to perform a clinical trial for insulin
resistance and filing the Insulin Resistance Provisional Application, those claims
would fail for the same reason. Again, RNA did not do either of those things; the
Regents did. PeriRx admits that the Regents filed a provisional patent application
for the insulin resistance biomarkers and later abandoned it. (Id. at ¶¶ 35-36.)
PeriRx also admits that the NIH awarded research grants to the Regents and UPR—
not RNA. (Id. at ¶¶ 28-30.) Thus, none of this conduct can be attributed to RNA or
form the basis of PeriRx’s breach of contract claim against RNA.
2.

Dr. Wong

Dr. Wong wears many hats, and in the early days of this case, the Court
cautioned PeriRx that it must allege specific facts that make it plausible that Dr.
Wong was acting pursuant to his role as RNA’s agent in order to impute liability
onto RNA. (ECF No. 90 at ¶ 13.) That was at the pleading stage, and PeriRx’s
burden is higher now. Instead of meeting that burden, PeriRx asks the Court to
assume that Dr. Wong always acted on behalf of RNA. Its argument rests on
twisted logic. RNA could only act through Dr. Wong, who was its sole
representative after his divorce. But the inverse is not necessarily true. That is,
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although RNA could only act through Dr. Wong, Dr. Wong did not always act for
RNA. He sometimes acted as an individual, and he sometimes acted as a UCLA
researcher and professor. PeriRx needs some evidence to show that Dr. Wong was
wearing his RNA hat at relevant times, but it has none.
a.

EFIRM

There is no dispute that Dr. Wong has collaborated with EZLife and Liquid
Diagnostics to conduct research and develop tests for the detection of lung
cancer and COVID-19. But Dr. Wong never met with EZLife or Liquid Diagnostics
while acting as an officer of RNA. Over the course of their dealings, EZLife and
Liquid Diagnostics believed that Dr. Wong was acting in his capacity as a
researcher and/or professor at UCLA. It appears that any work Dr. Wong did in
collaboration with both companies was done in his lab at UCLA. And Liquid
Diagnostics’ COO testified that he had never heard of RNA before receiving a
subpoena in this case.
Although PeriRx denies many of these facts in its Response to RNA’s
Statement of Undisputed Material Facts (e.g., ECF No. 139 at ¶ 54), it does not
point to any admissible evidence that might establish that Dr. Wong was acting
for RNA at any relevant time. Instead, it attempts to rebut RNA’s evidence by
pointing to the same facts it relied on to pursue its alter ego theory of liability
against the Regents. (See id. at ¶¶ 54, 81-83.) This evidence is unavailing for two
reasons. First, the evidence that PeriRx relies on suggests that RNA failed to follow
corporate formalities. None of this evidence has anything to do with Dr. Wong’s
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dealings with EZLife or Liquid Diagnostics. Second, PeriRx does not advance an
alter ego theory in its briefing regarding its claims against RNA. In any event, the
Court has ruled that the evidence is insufficient to establish that RNA is an alter
ego of the Regents. See PeriRx, 2021 WL 5865561 at *5. To the extent that PeriRx
intended to rely on a theory of “reverse piercing” to hold RNA liable for Dr. Wong’s
conduct, that theory would fail as well. See United States v. Kim, 806 F.3d 1161,
1168 (9th Cir. 2015) (“California has rejected ‘reverse-piercing’ actions that hold
an alter ego corporation liable for the actions of its shareholders.”). Thus, none of
the alter ego evidence rebuts or calls into question RNA’s evidence that Dr. Wong
was not acting on behalf of RNA when he dealt with EZLife or Liquid Diagnostics.
Even if the Court were to impute all of Dr. Wong’s conduct to RNA, PeriRx’s
claim would still fail because there is no evidence that Dr. Wong or RNA “allowed”
EZLife or Liquid Diagnostics to do anything. As an initial matter, PeriRx has no
evidence that Dr. Wong or RNA had any dealings with Liquid Diagnostics while
PeriRx held any rights under the License Agreement. The Regents did not issue a
letter of intent to Liquid Diagnostics until July 2019, and PeriRx’s rights to the EFIRM
technology (if they ever existed) terminated as of March 15, 2019.
Regarding EZLife, neither Dr. Wong nor RNA had the ability to “allow” EZLife
to use the EFIRM technology. Neither Dr. Wong nor RNA licensed the EFIRM Patent
from the Regents. Therefore, they had no ability to issue a sublicense to EZLife. In
any event, PeriRx does not contend that RNA sublicensed the EFIRM Patent (or
any other patent) to EZLife. Nor does PeriRx explain how RNA “allowed” EZLife to
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use technology that RNA licensed to PeriRx or how doing so amounts to a breach
of the License Agreement. In a prior Order, the Court ruled that “RNA’s alleged
failure to prosecute or protect … patent rights against … EZLife cannot form the
basis of a breach of contract claim because neither the UCLA Agreement nor
the License Agreement required anyone to take legal action against alleged
infringers.” (ECF No. 62 at ¶ 29.) PeriRx’s present attempt to recharacterize its claim
to avoid that outcome is unavailing.
b.

Insulin resistance

PeriRx has abandoned its claim that RNA breached the exclusivity
provisions of the UCLA Agreement and the License Agreement by “filing and
attempting to prosecute” the Insulin Resistance Provisional Application. (ECF No.
71 at ¶¶ 331(b), 339(b); see also id. at ¶¶ 191, 283 (alleging that Dr. Wong and RNA
“applied for patents behind PeriRx’s back with respect to diabetes and insulin
resistance that directly competed with patents licensed to PeriRx by RNA”).)
Indeed, PeriRx did not rely on the filing of the Insulin Resistance Provisional
Application in its own motion for summary judgment. Then, in response to RNA’s
motion, PeriRx contends that “RNA[’s] reliance upon the Insulin Resistance
Provisional Application is simply misplaced and is nothing more than a red herring.
This Application was abandoned in May 2017 and PeriRx did not even learn about
it until December 2017.” (ECF No. 139-29 at 13.) Thus, PeriRx has made clear that
it is no longer pursuing a claim based on this conduct. See Reeves v. Travelers
Companies, 296 F. Supp. 3d 687, 692 (E.D. Pa. 2017) (“When a party opposing
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summary judgment responds to a summary judgment motion but fails to address
the substance of any challenge to particular claims, that failure ‘constitutes an
abandonment of th[o]se causes of action and essentially acts as a waiver of
these issues.’”) (quotation omitted).
Separately, PeriRx complains that Dr. Wong and the Regents submitted
various grant and research proposals regarding Salivary Biomarker Development
for Insulin Resistance Detection: 1) a research grant proposal and a research
agreement with Delta Dental; 2) an application and a poster to the American
Diabetes Association; and 3) a manuscript that would later become a published
paper. PeriRx also complains that Dr. Wong refused to give PeriRx patient samples
from the UPR clinical trial. Like its other allegations based upon Dr. Wong’s actions,
PeriRx has failed to present evidence that Dr. Wong did any of this on behalf of
RNA. Tellingly, PeriRx attributes Dr. Wong’s conduct to the Regents, arguing that
his conduct demonstrates that “[r]ather than be a partner with PeriRX, UCLA was
its competitor which violated the exclusivity provision of the agreements.” (ECF
No. 139-29 at ¶ 12 (emphasis added).)
PeriRx has not attempted to set forth any evidence to attribute this conduct
to RNA, other than Dr. Wong’s status as RNA’s sole representative. That is not
sufficient to create a triable issue of fact, especially where all of the other
evidence indicates that Dr. Wong was acting as a UCLA researcher. Indeed, the
research grant proposal to Delta Dental identifies Dr. Wong’s affiliation with UCLA
(not RNA), and the actual research agreement itself is between Delta Dental’s
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affiliates and the Regents (not RNA). (ECF Nos. 122-137, 122-138.) The evidence
also makes clear that the application to the American Diabetes Association, the
poster, and the manuscript were part of the research collaboration agreement
between UCLA and UPR, led by Dr. Wong and Dr. Joshipura. (ECF Nos. 122-139,
122-140, 122-141, 139 at ¶¶ 28, 32.) Likewise, PeriRx’s complaint regarding Dr.
Wong’s and the Regents’s refusal to turn over Dr. Joshipura’s patient samples stem
from that same collaboration, which did not involve RNA. Thus, none of this
evidence creates a question as to whether Dr. Wong was acting on behalf of RNA
when he was researching and developing the salivary biomarkers for insulin
resistance.
IV.

CONCLUSION
PeriRx cannot prevail on its breach of contract claims against RNA based

upon factual allegations that are not included in its First Amended Complaint or
on conduct that it cannot tie to RNA. As a result, RNA is entitled to summary
judgment on PeriRx’s claims against it. An appropriate Order follows.
BY THE COURT:
/s/ Joshua D. Wolson
HON. JOSHUA D. WOLSON
United States District Judge
January 10, 2022

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