The Board of Regents of the University of Texas System, the University of Texas System, and the University of Texas M.D. Anderson Cancer Center v. Gensetix, Inc.

ACCEPTED
15-25-00011-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
10/31/2025 4:58 PM
No. 15-25-00011-CV CHRISTOPHER A. PRINE
CLERK
IN THE COURT OF APPEALS FILED IN
FOR THE FIFTEENTH DISTRICT OF TEXAS 15th COURT OF APPEALS
AUSTIN, TEXAS
AT AUSTIN
10/31/2025 4:58:47 PM
THE BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM,
CHRISTOPHER
Clerk
A. PRINE
THE UNIVERSITY OF TEXAS SYSTEM, and THE UNIVERSITY OF
TEXAS M.D. ANDERSON CANCER CENTER
Appellants
vs.
GENSETIX, INC.
Appellee
Appealed from the District Court, 152nd Judicial District
Harris County, Texas, The Honorable Robert Schaffer (Presiding)
Cause No. 2021-73071
APPELLEE’S BRIEF IN SURREPLY REGARDING CURADEV*

Anthony Buzbee Cabrach Connor
Tex. Bar No. 24001820 Tex. Bar No. 24036390
Ryan Pigg Jennifer Tatum Lee
Tex. Bar No. 24088227 Tex. Bar No. 24046950
THE BUZBEE LAW FIRM Sergio R. Dávila
600 Travis Street, Suite 7500 Tex. Bar No. 24079795
Houston, TX 77002 CONNOR LEE & SHUMAKER PLLC
(713) 223-5393 609 Castle Ridge Road, Suite 450
(512) 777-1254

ATTORNEYS FOR APPELLEE
GENSETIX, INC.

(ORAL AGUMENT NOT REQUESTED)

*Curadev Pharma Pvt. Ltd. v. The Univ. of Tex. Sw. Med. Ctr., No. 15-25-00004-CV,
2025 Tex. App. LEXIS 6472 (Tex. App.—15th Dist. Aug. 21, 2025, pet. filed).

1
TABLE OF CONTENTS

I. Curadev ..............................................................................................................................2

II. The trial court in Curadev ruled on undisputed facts. But the trial court in
Gensetix did not, and that material distinction affects how the STANDARD OF
REVIEW applies here. .........................................................................................................3

III. MDA’s 2017 Taking is wholly unaffected by Curadev .................................................5

IV. MDA’s 2020 Taking is distinguishable from Curadev ............................................................ 7
V. Neither Curadev nor any other case says that Takings lasting less than
33 months are non-actionable.......................................................................................8

VI. MDA misreads Chief Justice Brister’s .........................................................................9
dissenting opinion in Curadev.

VII. Gensetix respectfully asks this Court to disregard unpreserved, untimely
arguments raised in MDA’s Reply. .............................................................................11

XIII. Conclusion .......................................................................................................................12

CERTIFICATE OF COMPLIANCE ...........................................................................................16

i
TABLE OF AUTHORITIES

Cases

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex.2002).......................... 3

Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) ............................................... 9, 10

City of Dallas v. VSC, LLC, 242 S.W.3d 584 (Tex. App.—Dallas 2008) rev’d on other
grounds, 347 S.W.3d 231 (Tex. 2011) ............................................................................. 2

Curadev Pharma Pvt. Ltd. v. The Univ. of Tex. Sw. Med. Ctr., No. 15-25-00004-CV,
2025 Tex. App. LEXIS 6472 (Tex. App.—15th Dist. Aug. 21, 2025, pet. filed) .passim

Fed. Land Bank of Houston v. United States, 168 F.Supp. 788 (Ct. Cl. 1958) ........... 10

First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty., 482 U.S.
304 (1987) ....................................................................................................................... 9

Ford ex rel. Williams v. City of Lubbock, 76 S.W.3d 795 (Tex. App.—Amarillo 2002, no
pet.) .................................................................................................................................. 5

Gen Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001) ................... 2

Greater Houston Radiation Oncology v. Sadler Clinic Ass’n, PA, 384 S.W.3d 875
(Tex. App.—Beaumont 2012, pet. denied) .................................................................. 12

Hardy v. Chemetron Corp., 870 F.2d 1007 (5th Cir. 1989) ............................................... 8

Hartwell v. Lone Star, PCA, 528 S.W.3d 750 (Tex. App.—Texarkana 2017, pet. dism’d) 6

Hicks v. Tex. Health & Human Servs. Comm’n, No. 10-19-00256-CV, 2021 Tex. App.
LEXIS 6612 (Tex. App.—Waco Aug. 11, 2021, no pet.) ................................................... 5

Houston R.E. Income Props. XV, Ltd. v. Waller Cty. Appraisal Dist., 123 S.W.3d 859
(Tex. App.—Houston [14th Dist.] 2003, no pet.) ........................................................ 11

In re LAF, No. 14-21-00046-CV, 2022 Tex. App. LEXIS 5532 (Tex. App.—Houston [14th
Dist.] Aug. 4, 2022, no pet.) ............................................................................................ 6

Lexington Ins. Co. v. Daybreak Exp., Inc., 393 S.W.3d 242 (Tex. 2013) ...................... 8

MBP v. Bd. of Trustees of the Galveston Wharves, 297 S.W.3d 483 (Tex. App.—Houston
[14th Dist.] 2009) ............................................................................................................ 2

ii
Methodist Hosps. v. Tex. Workers’ Compensation Comm’n, 874 SW 2d 144 (Tex. App.—
Austin 1994, no writ) ....................................................................................................... 6

Moore v. NY Cotton Exch., 270 U.S. 593 (1926) ............................................................. 8

Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971) ........................................................ 10

Sefzik v. Mady Dev’t, LP, 231 S.W.3d 456 (Tex. App.—Dallas 2007, no pet.) ............. 11

SITQ EU, Inc. v. Reata Rests., Inc., 111 S.W.3d 638 (Tex. App.—Fort Worth 2003, pet.
denied) ............................................................................................................................. 3

Smith v. Grace, 919 S.W.2d 673 (Tex. App.—Dallas 1996, writ denied)............................ 6

State v. Holland, 221 S.W.3d 639 (Tex. 2007). .................................................................. 2

State v. Volkswagen Aktiengesellschaft, 669 SW 3d 399 (Tex. 2023) .............................. 3

Tex. Dep't of Crim. Just. v. Rangel, 595 S.W.3d 198 (Tex. 2020) ..................................... 6

TRT Holdings, Inc. v. Ace Am. Ins. Co., No. 05-23-00868-CV, 2025 Tex. App. LEXIS
7407 (Tex. App.—Dallas Sep. 18, 2025, n.p.h.) .......................................................... 12

United States v. General Motors Corp., 323 U.S. 373 (1945) .................................. 9, 10

UV Logistics, LLC v. Patsfield, No. 01-20-00191-CV, 2022 Tex. App. LEXIS 2118 (Tex.
App.—Houston [1st Dist.] Mar. 31, 2022, no pet.).......................................................... 6
Rules

Tex. R. App. P. 33.1(a)(1)(A) ................................................................................................... 11

TEX. R. APP. P. 44.1(a) .................................................................................................................. 6

iii
RECORD/BRIEF CITATIONS

The brief cites the record and briefs in the following way

CR Clerk’s Record

SuppCR Supplemental Clerk’s Record

2SuppCR Second Supplemental Clerk’s Record

RR Transcript of March 11, 2022, hearing

OB Appellant’s Opening Brief

Reply Appellant’s Reply Brief

iv
Curadev is materially distinguishable. Here, the governmental

party (MDA) used the ELEVENTH AMENDMENT to effect a multi-year

Taking of Gensetix’s exclusive, primary right to commercialize its patents.

Table 1 (Abridged)1
Material Distinctions Between Gensetix and Curadev
Gensetix Curadev
Sovereign Power employed by Governmental Party
ELEVENTH AMENDMENT None
motion to dismiss
Governmental Party’s Mental State and Conduct
Bad Faith intent to interfere with Gensetix’s Good Faith
right to sue intent to publish
research findings
Nature of the Property Conveyance
Gov’t relinquished commercialization rights to Gov’t obtained
Mirrow, who sold them to Gensetix information from
Takeda
Source of the Private Party’s Property Interest
Statutory right to exclude granted by Promise Takeda
Patent Office to inventors’ assignees made to Curadev in
a contract
Conflicting Evidence of Governmental Scienter
MDA’s Exhibits 6-7 vs.
None
Mousa Declaration w/ 21 Exhibits
Disputed Jurisdictional Facts
(1) MDA’s 2017 side-deal was illicit
(2) Gensetix’s 2017 patent suit was strong
None
(3) The 2019 clinical trials were commercial
(4) MDA cooked up a pretext in 2020
Circumstances
Extraordinary Common
Inducements, lies, and calculated betrayal aided Study submitted a
by abuse of ELEVENTH AMENDMENT few months early

1
See Tab 1 for record citations and pincites to Curadev in support of Table 1.

1
For the reasons explained in this supplemental brief, the trial court

did not err in finding MDA failed to carry its burden on its immunity plea.

I. Curadev

This Court’s Divided Opinion (Takings). The Curadev Court

was the first panel of this Court to examine the Texas Supreme Court’s

holding in Self. 2025 Tex. App. LEXIS 6472 at **15-16, 35-37 (citing

TxDOT v. Self, 690 S.W.3d 12 (Tex. 2024)). While the Curadev majority

characterized TxDOT’s appropriation in Self as “exercising its eminent

domain powers[] mistakenly[,]” Id. at **15, the dissenting opinion read

Self as “say[ing] just the opposite[.]’” Id. at *36.

The Curadev majority relied on State v. Holland2, 2025 Tex. App.

LEXIS 6472 at **12-15, but overlooked the Self Court’s express3

disapproval of subordinate courts reading the Little-Tex4 line of cases5 as

imposing a specific intent requirement. The government cannot avoid

liability “merely by asserting that [it] thought at the time of the taking

that it” had a right to do so. Self, 690 S.W.3d at 29 (emphasis in original).

2 221 S.W.3d 639 (Tex. 2007).
3 690 S.W.3d at 30 (“Many [courts] have rejected such arguments, and we join them[.]”)

(citing, inter alia, City of Dallas v. VSC, LLC, 242 S.W.3d 584, 594 (Tex. App.—Dallas
2008) rev’d on other grounds, 347 S.W.3d 231 (Tex. 2011)).
4 Gen Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001).
5
Of which Holland is a part. 221 S.W.3d at 642, 643-644. As is MBP v. Bd. of Trustees of
the Galveston Wharves, 297 S.W.3d 483, 488-493 (Tex. App.—Houston [14th Dist.]
2009), a case MDA asks this Court to follow. (Reply at 31-32).

2
Factual Basis for Holding (UTSW’s means of acquisition).

The Curadev majority held dispositive that UTSW had “no knowledge[6]

[that Curadev] had any rights that could be violated” if certain information

were to be published. 2025 Tex. App. LEXIS 6472 at **15-16. That is the

sole factual basis the Curadev majority relied on when it distinguished its

opinion from Self’s holding. Id.

Standard of Review. Curadev did not overturn Volkswagen or

BMC Software7, nor does it alter the STANDARD OF REVIEW applicable in

cases with disputed jurisdictional facts. 2025 Tex. App. LEXIS 6472.

II. The trial court in Curadev ruled on undisputed facts.
But the trial court in Gensetix did not, and that material
distinction affects how the STANDARD OF REVIEW applies here.

Curadev’s BRIEF IN OPPOSITION to UTSW’s PLEA TO THE JURISDICTION

filed in Dallas County reveals that, in that case, there were “no facts

contradicting [Curadev’s] allegations” bearing on jurisdiction. Tab 2 (No.

15-25-00004, BRIEF OF APPELLANTS, Appendix, Tab 9, p.5). Curadev

maintained that position in this Court. (No. 15-25-00004, APPELLANTS’

6 Curadev’s pleadings, while not a model of clarity, laid out a timeline hinting otherwise.

(15-25-00004-CV, BRIEF OF APPELLANTS, App’x, Tab 7 at 8-9). A November 2020 e-mail
from Takeda’s Paul Greenspan to UTSW, and UTSW’s responses on that e-mail thread,
demonstrate that UTSW was, in fact, aware that Takeda’s rights in the trade secret had
lapsed in 2020, before the complained-of publication in 2021. (Id. at 9, ¶ 29; 139-146).
7 State v. Volkswagen Aktiengesellschaft, 669 SW 3d 399, 412-413 (Tex. 2023); BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002); see also SITQ EU,
Inc. v. Reata Rests., Inc., 111 S.W.3d 638, 645 (Tex. App.—Fort Worth 2003, pet. denied).

3
REPLY BRIEF at 2) Tab 3. Consequently, the Curadev panel characterized

the relevant jurisdictional facts in that case as undisputed. 2025 Tex.

App. LEXIS 6472 at **11-12.

The parties in Curadev agreed that UTSW obtained the trade secret

chemical compound by entering an agreement with Takeda

Pharmaceutical, and they agreed that UTSW continued to use the

information after the Takeda agreement expired, against the express terms

of the Takeda agreement. 2025 Tex. App. LEXIS 6472 at **11-12.

Unlike the parties in Curadev, the parties here sharply dispute key

jurisdictional facts. First, whether MDA’s illicit side-deal with Diakonos

motivated MDA to misappropriate Gensetix’s property in 2017. Second,

whether MDA truly thought, in 2017, that Gensetix’s patent infringement

case against Diakonos was weak. Third, whether the medication expenses

for the 2019 clinical trials were paid by a third party. Fourth, whether the

grounds for the purported termination in 2020 were pretextual.

Under Self, intent no longer matters, so Gensetix wins; but even if

it still mattered (as MDA argues on Reply), disputed jurisdictional facts

were resolved below in Gensetix’s favor, so Gensetix would still win.

Unlike UTSW in Curadev, here MDA introduced, and asked Judge

Schaffer to consider, evidence beyond the four corners of Gensetix’s

4
pleading, (CR:134), (RR at 26:5-12), in an attempt to carry its burden of

conclusively negating Gensetix’s pleaded allegation that the grounds for

the termination in 2020 were pretextual. (CR:104, ¶ 26; CR:107, ¶ 50).

To rebut the evidence incorporated in MDA’s jurisdictional plea,

Gensetix adduced countervailing evidence (CR:455-461), including details

about MDA’s bad faith conduct towards Gensetix in the lead-up to the

2019 clinical trials, the pretextual demands for maintenance fees, and the

purported termination in 2020. (CR:460, ¶¶ 34-38).

Because competing narratives, supported by competing evidence,

were weighed and resolved in the trial court, MDA cannot rely on Curadev

(or other cases where the evidence offered was unrelated8 to jurisdiction

or the facts were undisputed9) to suggest that the STANDARD OF REVIEW

applicable here, a case with disputed jurisdictional fact issues, is less

deferential. Volkswagen and BMC Software continue to control, so all

relevant facts upholding the order, with record support, must be implied.

III. MDA’s 2017 Taking is wholly unaffected by Curadev

MDA nowhere denies that invoking ELEVENTH AMENDMENT immunity

is a clear-cut abuse of eminent domain power. (Reply). Instead, MDA

8 Hicks v. Tex. Health & Human Servs. Comm’n, No. 10-19-00256-CV, 2021 Tex. App.

LEXIS 6612, at **1-2 (Tex. App.—Waco Aug. 11, 2021, no pet.).
9
Ford ex rel. Williams v. City of Lubbock, 76 S.W.3d 795, 797-798 (Tex. App.—Amarillo
2002, no pet.).

5
suggests that its misconduct in the patent litigation, extensively discussed in

Gensetix’s operative complaint, was categorically excluded by Gensetix as a

ground for MDA’s liability for Takings. (Reply at 8).

It was not. (CR:104-105, ¶¶ 29-31; CR:167-168; CR:598-603, ¶¶ 11, 16-

20; RR at 21:24-22:1). MDA has a fair opportunity to prepare defenses in

response to Gensetix’s theory of MDA’s liability: that MDA’s invocation, in

2017, of the ELEVENTH AMENDMENT during the patent litigation—and MDA’s

persistent refusal to abandon that meritless, gratuitous legal maneuver into

2018, 2019, and 2020—misappropriated Gensetix’s exclusive right to

commercialize the technology. That the court below liberally 10 construed

Gensetix’s pleadings was neither error nor reversible. Tex. Dep't of Crim.

Just. v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020); TEX. R. APP. P. 44.1(a).

Curadev, a case where the ELEVENTH AMENDMENT was not invoked, has

no bearing on Gensetix’s right to seek just compensation for the Taking

embodied by MDA’s gratuitous invocation of the ELEVENTH AMENDMENT and

10 Moreover, MDA waived appellate review of its special exception by failing to secure a

written ruling on it. (CR); Smith v. Grace, 919 S.W.2d 673, 687 (Tex. App.—Dallas 1996,
writ denied); Hartwell v. Lone Star, PCA, 528 S.W.3d 750, 764-765 (Tex. App.—
Texarkana 2017, pet. dism’d); UV Logistics, LLC v. Patsfield, No. 01-20-00191-CV, 2022
Tex. App. LEXIS 2118, at *31 (Tex. App.—Houston [1st Dist.] Mar. 31, 2022, no pet.); In
re LAF, No. 14-21-00046-CV, 2022 Tex. App. LEXIS 5532, at **5-6 (Tex. App.—Houston
[14th Dist.] Aug. 4, 2022, no pet.); see also Methodist Hosps. v. Tex. Workers’
Compensation Comm’n, 874 SW 2d 144, 147 (Tex. App.—Austin 1994, no writ).

6
the years of gratuitous litigation that accompanied and facilitated MDA’s

clear-cut exercise of MDA’s eminent domain powers.

IV. MDA’s 2020 Taking is distinguishable from Curadev

Over a persuasive dissent, the Curadev majority held that the Dallas

trial court did not err in declining to find that UTSW used eminent domain

power when it obtained trade secret chemical compound. 2025 Tex. App.

LEXIS 6472 at **17-18, 33-37. Unlike here, where MDA relinquished

rights, UTSW obtained rights with clean hands in Curadev. Id.

The Dallas trial court may have found differently if Curadev had

adduced competent evidence of a logical nexus between (1) UTSW’s

subjective state of mind at the time it exceeded the scope of the Takeda

agreement and (2) UTSW’s exercise of a uniquely sovereign power.

Here, Judge Schaffer had sufficient evidence to treat MDA’s

pretextual 2020 Taking as factually intertwined11 with, and part of the

same “transaction” as, the ELEVENTH AMENDMENT-based Taking of 2017

that continued as of the date of the exhibit MDA introduced. See Lexington

11 The record supports the inference that Judge Schaffer judicially noticed that it was not

until after the oral argument in February 2020 (which signaled to MDA a
likelihood that Judge Hanen’s ruling would no longer be effective to prevent Diakonos
and Baylor from being sued for patent infringement) that MDA knew it would need
to deploy a new tactic to prolong Diakonos’s ongoing, unauthorized
commercialization of Gensetix’s property, thus, MDA’s ELEVENTH AMENDMENT
Taking of 2017 and the pretextual 2020 termination are part of the same transaction.
See https://www.cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/
(Appeal No. 19-1424) (Oral Argument Date, Feb. 4, 2020). That finding must be upheld.

7
Ins. Co. v. Daybreak Exp., Inc., 393 S.W.3d 242, 244 (Tex. 2013) (citing

Moore v. NY Cotton Exch., 270 U.S. 593, 610 (1926)).

The court below did not err when it declined MDA’s invitation to find

(1) the condition precedent to MDA’s right to terminate was fulfilled (it

was not); (2) the professed grounds MDA asserted were non-pretextual

(they were); and/or (3) the decision to terminate was isolated from the

ongoing exercise of eminent domain power that commenced in 2017 (the

two Takings were factually intertwined and logically related).

MDA had a full, fair opportunity to present the evidence necessary

to persuade Judge Schaffer otherwise.

Gensetix is confident the evidence does not exist, but even if it did,

MDA strategic decision to withhold it below cannot be cured on appeal.

Nor does Curadev give MDA a second12 bite at the apple; MDA must

live with the consequences of introducing evidence that fell short of

disproving Gensetix’s allegations of non-breach and of MDA’s pretext.

V. Neither Curadev nor any other case says that Takings
lasting less than 33 months are non-actionable.

MDA reasons that—since its gratuitous ELEVENTH AMENDMENT

theory didn’t hold up on appeal—the years-long effect of its abuse of

12 Evidence not introduced, and arguments not raised, in the court below “are but l'esprit

de l'escalier.” Hardy v. Chemetron Corp., 870 F.2d 1007, 1012 (5th Cir. 1989).

8
sovereign power is unlike the permanent loss of secrecy UTSW’s

publication caused in Curadev, therefore it is non-actionable. (Reply at 9).

MDA’s reasoning fails. The duration of MDA’s misappropriation is

immaterial to MDA’s liability, so MDA must “provide compensation for

the period during which the taking was effective.” First English

Evangelical Lutheran Church of Glendale v. Los Angeles Cty., 482 U.S.

304, 321, 317-322 (1987); United States v. General Motors Corp., 323 U.S.

373, 375, 378 (1945); Cedar Point Nursery v. Hassid, 594 U.S. 139, 156

(2021). Here, the misappropriation occasioned by MDA’s ELEVENTH

AMENDMENT filing in 2017 effectively abated the patent litigation against

Diakonos up to (and after) the purported “termination” in 2020. MDA’s

years-long Taking is actionable and compensation is due to Gensetix.

VI. MDA misreads Chief Justice Brister’s
dissenting opinion in Curadev.

MDA cites its nominal ownership of the patents as a reason not to

recognize Gensetix’s exclusive right to commercialize the patented

technology. (Reply at 33-34). In support of that argument, MDA says

“[t]his case does not implicate any of Chief Justice Brister’s concerns in

Curadev.” (Reply at 34, n.14) (emphasis supplied). MDA is wrong.

First, property interests less than outright ownership are

cognizable. Fed. Land Bank of Houston v. United States, 168 F.Supp. 788,

9
789 n.1, 790, 791-792, 792 n.4 (Ct. Cl. 1958); Gen. Motors, 323 U.S. at 375,

378. Second, MDA already conceded below that “the existence of a

contract by itself is insufficient to invalidate [Gensetix’s] Takings claim[.]”

(CR:251); see also Self, 690 S.W.3d at 15, 17-19, 27, 29-32.

By MDA’s newfound logic, the mere existence of contractual privity

between UT and a family living in a UT-owned apartment on Lake Austin

Blvd would leave the family without recourse, and at UT’s mercy, if

Diakonos were to sponsor unauthorized bullfights in the family’s

apartment. Worse, UT could impute the resulting damage to the family

and, if the family cannot afford to repair the damage, unilaterally declare

the family in breach and evict them. This remains so, by MDA’s logic, even

if UT knows Diakonos, and Diakonos alone, caused the damage.

MDA’s logic fails. After the State conveys the right to exclude, the

State can no longer appropriate that exclusionary right without paying just

compensation to the holder of that exclusionary right. Cf. Piazzola v.

Watkins, 442 F.2d 284. 290 (5th Cir. 1971); Hassid, 594 U.S. at 156. Here,

MDA did not even arguably act within the scope of its rights in 2017. The

concerns Chief Justice Brister raised in Curadev plainly apply here.

10
VII. Gensetix respectfully asks this Court to disregard
unpreserved, untimely arguments raised in MDA’s Reply.

In the court below, MDA advanced no interpretations of any License

Agreement provisions relating to whether an annual maintenance fee was

due in 2020. (CR). Nor did MDA do so in its Opening Brief. (OB).

But now, on Reply—to address an allegation pleaded in 2021—

MDA unveils for the first time a novel legal argument surrounding the

interpretations of §§ 2.3, 2.11 of the License Agreement. (Reply at 16-17,

n.3) (citing ¶ 50 of Gensetix’s First Amended Petition).

“An objection at trial not comporting with the complaint on appeal

presents nothing for appellate review.” Houston R.E. Income Props. XV,

Ltd. v. Waller Cty. Appraisal Dist., 123 S.W.3d 859, 862 (Tex. App.—

Houston [14th Dist.] 2003, no pet.). Nor may parties “enlarge a ground of

error on appeal to include an objection not asserted at trial.” Sefzik v.

Mady Dev’t, LP, 231 S.W.3d 456 (Tex. App.—Dallas 2007, no pet.).

Courts of appeal may not address issues of contract interpretation

that were not the subject of a “complaint [that] was made to the trial court

by a timely request, objection, or motion that stated the grounds []with

sufficient specificity to make the trial court aware of the

complaint[.]” Tex. R. App. P. 33.1(a)(1)(A) (emphasis supplied); see TRT

Holdings, Inc. v. Ace Am. Ins. Co., No. 05-23-00868-CV, 2025 Tex. App.

11
LEXIS 7407 at **23-24 (Tex. App.—Dallas Sep. 18, 2025, n.p.h.) (insured

could not raise new contract interpretation argument on appeal); Greater

Houston Radiation Oncology v. Sadler Clinic Ass’n, PA, 384 S.W.3d 875,

890 (Tex. App.—Beaumont 2012, pet. denied) (panel did not address

“arguments regarding the construction of the Management Agreement”

because the appellant failed to make those arguments in the trial court).

For substantially the same reasons, MDA’s newly unveiled positions

regarding the interpretations of §§ 7.1, 7.2, and its alleged non-breach of

those obligations, are improper. (Reply at 14-16).

Accordingly, Gensetix respectfully OBJECTS on Tex. R. App. P. 33.1

and 38.1(f) grounds to MDA’s untimely-raised legal arguments concerning

the interpretation and MDA’s purported non-breach of the License.

XIII. Conclusion

MDA’s Reply accuses Gensetix of “creative pleading,” (Reply at 26),

but MDA’s own choices, not artful pleading, are what erected

insurmountable obstacles for MDA in this appeal.

First, MDA, not artful pleading, introduced evidence beyond

the four corners of Gensetix’s pleadings. (CR:134), (RR at 26:5-12).

That means the court below resolved jurisdictional fact issues and the

STANDARD OF REVIEW requires this Court to defer to those findings.

12
Second, MDA, not Gensetix, perfected its appeal before

seeking narrower findings and rulings below. (CR:733-735). As a

result, this Court must draw all record-supported inferences favorable to

the order, and affirm on any legal basis ascertainable from the record.

Third, MDA “creatively” used the ELEVENTH AMENDMENT in

the patent litigation. (CR:419, ¶¶ 54-55; CR:221-228). So, MDA can no

longer say it acted “as any private party could have” in 2017. (Reply at 32).

MDA understandably wishes to put the genie back in the bottle, on

all three counts, but no genie can rewrite history. These facts—fatal to

MDA’s appeal notwithstanding Curadev—may not, through attorney

argument, be brushed off as “creative pleading” because the record clearly

shows they are MDA’s choices, which cannot be retracted on appeal.

Gensetix respectfully asks this Court to affirm the district court’s

denial of Appellants’ plea to the jurisdiction.

13
Respectfully submitted,
CONNOR LEE & SHUMAKER PLLC
609 Castle Ridge Road, Suite 450
Austin, Texas 78746
512.777.1254 (main)
888.387.1134 (fax)

By: /s/ Cabrach Connor
Cabrach J. Connor
State Bar No. 24036390
Email: Cab@CLandS.com
Jennifer Tatum Lee
State Bar No. 24046950
Email: Jennifer@CLandS.com
Sergio R. Davila
State Bar No. 24079795
Email: Sergio@CLandS.com

THE BUZBEE LAW FIRM

Anthony G. Buzbee
State Bar No. 24001820
Ryan S. Pigg
State Bar No. 24088227
tbuzbee@txattorneys.com
rpigg@txattorneys.com
713-223-5393

ATTORNEYS FOR APPELLEE

14
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded, on this the 31st day of October 2025, to the
counsel of record for each of the parties via the service method indicated as
follows:

VIA ELECTRONIC SERVICE

Alyssa Bixby-Lawson David E. Harrell, Jr.
GENERAL LITIGATION DIVISION Deanna Markowitz Willson
OFFICE OF THE ATTORNEY GENERAL Monika Dziemianczuk
PO Box 12548, Capitol TROUTMAN PEPPER LOCKE LLP
Austin, TX 78711 600 Travis Street, Suite 2800
Houston, TX 77002

/s/ Cabrach Connor
Cabrach Connor

15
CERTIFICATE OF COMPLIANCE

I hereby certify that the number of words contained in the non-exempt
portions of this Sur-reply (including Tab 1) is 4,714 and that the undersigned
relied on the word count of the computer program used to prepare the
document to determine the number of words.

/s/ Cabrach Connor
Cabrach Connor

16
No. 15-25-00011-CV
IN THE COURT OF APPEALS
FOR THE FIFTEENTH DISTRICT OF TEXAS
AT AUSTIN
THE BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM,
THE UNIVERSITY OF TEXAS SYSTEM, and THE UNIVERSITY OF
TEXAS M.D. ANDERSON CANCER CENTER
Appellants
vs.
GENSETIX, INC.
Appellee
Appealed from the District Court, 152nd Judicial District
Harris County, Texas, The Honorable Robert Schaffer (Presiding)
Cause No. 2021-73071
TAB 1

APPELLEE’S BRIEF IN SURREPLY REGARDING CURADEV

Table 1 (Unabridged)
With Citations to the Record
and pincites to Curadev opinion
Material Distinction Between Gensetix and Curadev
Sovereign Power employed by Governmental Party
Gensetix Curadev
ELEVENTH AMENDMENT None
motion to dismiss

CR:98-99 (Gensetix pleaded that MDA’s refusal to
cooperate included its ELEVENTH AMENDMENT motion);
CR:104-105, ¶¶ 30-32, 37 (Gensetix pleaded that
MDA’s refusal to cooperate deprived Gensetix of its
property right to enforce the patents against Diakonos);
CR:170 (Gensetix successfully opposed dismissal by
arguing that deprivation of IP rights are Takings);
CR:174-175, CR:183, CR:221-228 (Gensetix
successfully opposed dismissal by arguing MDA used the
ELEVENTH AMENDMENT to effect the deprivation of
MDA’s IP rights, citing MDA’s unambiguous “have their
cake and eat it too” position in federal court);
CR:400-452 (Gensetix successfully opposed MDA’s
plea to the jurisdiction by arguing MDA used the
ELEVENTH AMENDMENT to deprive Gensetix of IP rights)
CR:600-602, ¶¶16-19 (a liberal interpretation of
Gensetix’s pleadings means MDA’s refusal to cooperate
included its ELEVENTH AMENDMENT motion);
RR at 7:19-24 (emphasis supplied)
[Counsel for MDA:] Gensetix filed [a patent
infringement suit] and tried to make the Board of
Regents an Involuntary Plaintiff in the lawsuit it had
filed in the Southern District of Texas. That’s where
the [ELEVENTH AMENDMENT] sovereign immunity
plea started by the Board of Regents[.]

Curadev, 2025 Tex. App. LEXIS 6472 (no sovereign
power of any kind used by UTSW)
Material Distinction Between Gensetix and Curadev
Governmental Party’s Mental State and Conduct
Gensetix Curadev
Bad Faith intent to interfere with Good Faith
Gensetix’s right to sue intent to publish research findings
CR:95-105 (Gensetix pleaded a detailed account of
MDA’s bad faith at all relevant times);
CR:177-182 (Gensetix successfully opposed dismissal
because MDA lacked “good faith” at all relevant times);
CR:354-368 (Gensetix propounded discovery requests
seeking evidence of MDA’s purported “good faith”)
CR:406-423, ¶¶ 2-75 (Gensetix successfully opposed
MDA’s plea to the jurisdiction by providing a detailed
account of MDA’s bad faith at all relevant times);
CR:455-461 (Declaration of Rita Mousa in opposition to
Defendants’ plea to the jurisdiction, evidence considered
by Judge Schaffer consisting of a detailed account of
MDA’s bad faith at all relevant times);
Curadev, 2025 Tex. App. LEXIS 6472 at *5
In October or November 2020, Curadev
learned that Bai and Zhang "had generated
data showing that Curadev's test compound
[Company Material] indeed bound to a
unique allosteric transmembrane site on
STING." At that time, Appellees "were not
aware that Curadev was the inventor of the
test compound or of the chemical structure
of the test compound or any of Curadev's
other compounds."
Material Distinction Between Gensetix and Curadev
Nature of the Property Conveyance
Gensetix Curadev
Gov’t relinquished commercialization Gov’t obtained
rights to Mirrow, who sold them to Gensetix information from Takeda

CR:102, ¶¶ 13, 16 (Gensetix pleaded that MDA conveyed
the exclusive rights to Mirrow, who then conveyed the
exclusive rights to Gensetix);
Curadev, 2025 Tex. App. LEXIS 6472 at *11
The record reflects that Southwestern
entered into a Research Agreement with
Takeda

Curadev, 2025 Tex. App. LEXIS 6472 at *12
The crux of Curadev's takings claim is that
Southwestern used Company Material it
acquired by agreement, which led to its
published discovery about the compound
C53. Curadev cannot show Southwestern
waived sovereign immunity by exercising
its eminent domain power because
Southwestern acquired Curadev's test
compound—Company Material—through a
valid contract with Takeda.
Material Distinction Between Gensetix and Curadev
Source of the Private Party’s Property Interest
Gensetix Curadev
Statutory right to exclude granted by Promise UTSW made to
Patent Office to inventors’ assignees Takeda in a contract
CR:169-170 (citing 35 U.S.C. § 261);
CR:455-456, ¶ 5 (Declarant, Rita Mousa, explaining
that no rights existed at the time of Mirrow’s
conveyance to Gensetix in January 2014);
CR:455-456, ¶ 9 (Declarant, Rita Mousa, explaining
that the Patent Office granted a patent in May 2014);

Curadev, 2025 Tex. App. LEXIS 6472 at *3
[A] Takeda subsidiary, Takeda California,
Inc., entered into a Sponsored
Collaboration Research Agreement (the
Research Agreement) with Southwestern.
Pursuant to the Research Agreement,
Takeda provided Southwestern with one of
Curadev's STING agonist test compounds
(Company Material).
Curadev, 2025 Tex. App. LEXIS 6472 at *4
[]The Research Agreement defined
"Confidential Information" as "any
scientific, technical, trade or business
information possessed or obtained by,
developed for or given to the recipient
Party which is treated by the disclosing
Party as confidential or proprietary." The
Research Agreement noted that the
parties would use reasonable efforts to
prevent disclosure of the other party's
confidential information for five years
after receipt.
Material Distinction Between Gensetix and Curadev
Conflicting Evidence of Governmental Scienter
Gensetix Curadev
MDA’s Exhibits 6-7 vs.
None
Mousa Declaration w/ 21 Exhibits
CR:134, n.7 (MDA, within its jurisdictional plea, asking
the court below to consider “Exhibit 6” and “Exhibit 7”
as evidence that the technology had not been
commercialized and that Gensetix did not pay the fee owed
to MDA when the technology isn’t commercialized.);
CR:92-94 (MDA’s “Exhibit 6”); 2SuppCR:3-4 (MDA’s
“Exhibit 7”);
CR:454-595 (Declaration of Rita Mousa with 21
Exhibits);
CR:460, ¶¶ 34-38
(Mousa detailing MDA’s bad faith behavior and
disputing MDA’s allegations of the validity of
its demand for a maintenance fee payment)
RR at 7:25-8:9 (emphasis supplied)
[Counsel for MDA:] And that evidence that
we’ve provided with our Answer and
incorporated through the Plea to the
Jurisdiction shows with our Exhibit 6
[MDA accused Gensetix of breach] And with
our Exhibit 7 we show that in May of
2020 that Contract was terminated.
RR at 26:9-10 (emphasis supplied)
[Counsel for MDA:] We’ve provided the Court
with Exhibit 7[.]
Curadev, 2025 Tex. App. LEXIS 6472 at **11-12
Curadev does not dispute that Southwestern
and Takeda had an agreement, nor does it
dispute that Takeda provided Company
Material to Southwestern under the Research
Agreement.
Material Distinction Between Gensetix and Curadev
Disputed Jurisdictional Facts
Gensetix Curadev
(1) MDA’s 2017 side-deal was illicit None
CR:97-99, CR:103-105 (Gensetix pleaded that MDA
entered an unauthorized side-deal with Diakonos and
Baylor)
CR:133 (MDA’s jurisdictional plea denies that it entered
an unauthorized side-deal with Diakonos and Baylor,
claiming Gensetix’s allegations are “imagined facts” and
that MDA “never conspired” with Diakonos or Baylor)
CR:697, CR:697 n.12 (MDA in its reply brief to the court
below maintained that the side deal did not “exist” and that
Gensetix’s allegation was “categorically false.”)
OB at 45 (MDA on appeal “vigorously denies” the side-
deal)

Curadev, 2025 Tex. App. LEXIS 6472 at **12-13
Curadev does not dispute that Southwestern
and Takeda had an agreement, nor does it
dispute that Takeda provided Company
Material to Southwestern under the Research
Agreement.
Material Distinction Between Gensetix and Curadev
Disputed Jurisdictional Facts
Gensetix Curadev
(2) Gensetix’s 2017 patent suit was strong None
CR:96 (Gensetix pleaded that Diakonos officer William
Decker developed unauthorized “improvements” to the
patented technology, which infringed the patents);
CR:104, ¶ 27 (Gensetix pleaded that Diakonos knew it
lacked the “freedom to operate” to engage in the same
commercial activities that would form the basis of the
patent infringement suit; that is willful infringement);
CR:133 (MDA’s jurisdictional plea claimed Gensetix’s
allegations are “imagined facts”);
Reply at 15 (On appeal, MDA clarifies that it meant it
subjectively believed Gensetix’s infringement suit against
Diakonos was too “weak” to be allowed to proceed);

Curadev, 2025 Tex. App. LEXIS 6472 at **12-13
Curadev does not dispute that Southwestern
and Takeda had an agreement, nor does it
dispute that Takeda provided Company
Material to Southwestern under the Research
Agreement.
Material Distinction Between Gensetix and Curadev
Disputed Jurisdictional Facts
Gensetix Curadev
(3) The 2019 clinical trials were commercial None
CR:103, ¶ 24 (Gensetix pleaded Phase I manufacturing
activities were funded by Diakonos, third party, and that
clinical trials were conducted);
CR:107, ¶ 50 (Gensetix pleaded that commercial activity
took place prior to 2020);
CR:419, ¶ 58 (Gensetix adduced evidence, Exhibit 21 to
the Declaration of Rita Mousa, in opposition to
MDA’s jurisdictional plea establishing that “in 2019, Phase
I Clinical Trials in New Jersey . . . were underway[.]”)
CR:460, ¶36 (Mousa attesting to facts establishing
that Phase I clinical trials were taking place,
supporting the inference that infringing medications
were developed with outside funding for commercial
purposes);
CR:591-594 (Exhibit 21, a press release dated
June 7, 2019, announcing the clinical trials to take
place in Camden, New Jersey);
CR:134, n.7 (MDA, within its jurisdictional plea,
contending the technology had not been commercialized
and that Gensetix did not pay the fee owed to MDA when
the technology isn’t commercialized.);

Curadev, 2025 Tex. App. LEXIS 6472 at **12-13
Curadev does not dispute that Southwestern
and Takeda had an agreement, nor does it
dispute that Takeda provided Company
Material to Southwestern under the Research
Agreement.
Material Distinction Between Gensetix and Curadev
Disputed Jurisdictional Facts
Gensetix Curadev
(4) MDA cooked up a pretext in 2020 None
CR:107, ¶ 50 (Gensetix pleaded both that MDA was not
entitled to maintenance fees in 2020, and that MDA
refused to substantiate its position that commercial
activities had not taken place)
CR:419-420, ¶¶ 57-60; CR:421, ¶ 64; CR:435, ¶ 104
(Gensetix argued that the alleged entitlement to a
maintenance fee was a “pretext” and in support of that
argument adduced evidence, Exhibit 21 to the
Declaration of Rita Mousa, establishing that no
maintenance fee was owed)
CR:460, ¶36 (Mousa attesting to facts establishing
that Phase I clinical trials were taking place,
supporting the inference that infringing medications
were developed with outside funding for commercial
purposes);
CR:591-594 (Exhibit 21, a press release dated
June 7, 2019, announcing the clinical trials to take
place in Camden, New Jersey);

Curadev, 2025 Tex. App. LEXIS 6472 at **12-13.
Curadev does not dispute that Southwestern
and Takeda had an agreement, nor does it
dispute that Takeda provided Company
Material to Southwestern under the Research
Agreement.
Material Distinction Between Gensetix and Curadev
Circumstances
Gensetix Curadev
Extraordinary
Common
Inducements, lies, and calculated
Study submitted a few
betrayal aided by abuse of ELEVENTH
months early
AMENDMENT
CR:95-105, ¶¶ preamble, ¶¶ 1-35 (detailing MDA’s
inducements, lies, and abuse of the Eleventh Amendment)
CR:177-182 (detailing MDA’s lack of good faith, egregious
extra-contractual activity, and the relationship between its
“secret deal” with Diakonos and Baylor)
CR:357-368 (detailing the relationship Gensetix’s pending
discovery requests and MDA’s egregious misconduct)
CR:406-423, ¶¶ 2-75 (detailing the extraordinary
circumstances embodied by MDA’s egregious misconduct)
CR:455-461 (Declaration of Rita Mousa in opposition to
MDA’s plea to the jurisdiction, detailing the extraordinary
circumstances embodied by MDA’s egregious misconduct)
https://search.txcourts.gov/Case.aspx?cn=15-25-
00004-CV&coa=coa15
(Cause No. 15-25-00004-CV, BRIEF OF APPELLANT,
Appendix Tab 7 -Curadev’s Operative Pleadings], Exhibit
7 [E-mail correspondence between UTSW and Curadev],
pp. 149-151) available at
https://search.txcourts.gov/SearchMedia.aspx?MediaVe
rsionID=e86171b9-b7a4-46a6-b445-
5ee298538dba&coa=coa15&DT=Brief&MediaID=03f4b
476-515e-4ed8-9a47-43c300380f80
(E-mail dated Jan. 4, 2021, from Xuewu Zhang to Arjun
Surya)
(“We can delay the publication of this structure to some
later date, but the middle of 2022 seems excessive.”)
No. 15-25-00011-CV
IN THE COURT OF APPEALS
FOR THE FIFTEENTH DISTRICT OF TEXAS
AT AUSTIN
THE BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM,
THE UNIVERSITY OF TEXAS SYSTEM, and THE UNIVERSITY OF
TEXAS M.D. ANDERSON CANCER CENTER
Appellants
vs.
GENSETIX, INC.
Appellee
Appealed from the District Court, 152nd Judicial District
Harris County, Texas, The Honorable Robert Schaffer (Presiding)
Cause No. 2021-73071
TAB 2

APPELLEE’S BRIEF IN SURREPLY REGARDING CURADEV

Excerpts from Curadev’s
BRIEF IN OPPOSITION TO
UTSW’S PLEA TO THE JURISDICTION
filed in Dallas County
FILED
9/24/2024 2:39 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Miranda Lynch DEPUTY

CAUSE NO. DC-24-03875

CURADEV PHARMA PVT. LTD., § IN THE DISTRICT COURT OF
and CURADEV PHARMA LIMITED, §
§
Plaintiffs, §
§
V. § DALLAS COUNTY, TEXAS
THE UNIVERSITY OF TEXAS §
SOUTHWESTERN MEDICAL §
CENTER, DR. XIAOCHEN BAI, AND §
DR. XUEWU ZHANG, §
§
Defendants. § 101ST JUDICIAL DISTRICT

PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS'
PLEA TO THE JURISDICTION

Plaintiffs Curadev Pharma Pvt. Ltd. and Curadev Pharma Limited (together, "Curadev")

file this response in opposition to the Plea to the Jurisdiction filed on July 30, 2024, by Defendants

The University of Texas Southwestern Medical Center ("UTSW"), Dr. Xiaochen Bai ("Bai"), and

Dr. Xuewu Zhang ("Zhang," and collectively with UTSW and Bai, the "Defendants") and

respectfully show the Court the following:

I. INTRODUCTION

Defendants ask this Court to give a free pass to the state-sanctioned theft of intellectual

property. In essence, they contend that the government can plunder a company's valuable trade

secrets by extending false promises of confidentiality under the guise of academic research, then

secretly steal that information to enrich itself through patents and joint enterprises with other

private companies-all without paying the property owner a cent. Then, if the government gets

caught, the Defendants contend that the owner has no right to even seek a remedy in a court of law.

This case is why we have the Takings Clause. Even if Defendants had sovereign immunity

from tort claims (which they waived in this case by their inequitable conduct), such immunity

Plaintiffs' Response in Opposition to Defendants' Plea to the Jurisdiction 1198
Cause No. DC-24-0387 1
on the argument that Plaintiffs' entire suit is barred by sovereign immunity. Defendants are

incorrect. Sovereign immunity does not apply to Plaintiffs' constitutional claim at all. And, as to

the TUTSA and conversion claims, Plaintiffs have pled that Defendants waived immunity through

their conduct, and that Defendants Bai and Zhang have also engaged in ultra vires acts, for which

no immunity applies. Notably, Defendants have submitted no facts contradicting Plaintiffs'

allegations, and their legal arguments are either misguided or rely on a mischaracterization of

Plaintiffs' claims. Simply put, there is no basis to dismiss this case on jurisdictional grounds, and

Defendants' Plea to the Jurisdiction should be rejected.

A. Sovereign Immunity Does Not Apply to Plaintiffs' Constitutional Takings
Claim against UTSW.

Sovereign immunity does not apply to a constitutional takings claim. See Harris Cnty.

Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016), reh'g denied (Oct. 21, 2016)

("Sovereign immunity does not shield the government from liability for compensation under the

takings clause."). Defendants do not even attempt to refute this black-letter law,1 so instead they

claim sovereign immunity as a jurisdictional defense by prematurely attacking Curadev's

constitutional claim on the merits. Specifically, they argue that Plaintiffs' constitutional claim is

facially invalid because Plaintiffs: (1) have not pled an "actionable taking;" and (2) cannot show

that UTSW acted with the requisite intent. See Plea to the Jurisd. at 22-32.

At the outset, these are quintessential merits arguments-not a basis for declining subject­

matter jurisdiction. If Defendants want to attack the legal strength of Plaintiffs' claims, they will

1
Defendants argue that, absent a legislative waiver, UTSW is immune from conversion and
TUTSA claims. Plea to the Jurisd. at 17-20. They do not (and cannot) argue legislative waiver is
required before UTSW may face constitutional takings claim. See Steele v. City ofHouston, 603
S.W.2d 786, 791 (Tex. 1980) ("The Constitution itself ... is a waiver of governmental immunity
for the taking, damaging or destruction of property for public use.").

Plaintiffs' Response in Opposition to Defendants' Plea to the Jurisdiction
Cause No. DC-24-0387 5
1202
Dated: September 24, 2024 Respectfully Submitted,

Allen Overy Shearman Sterling US LLP

Isl David P. Whittlesey
David P. Whittlesey
Texas Bar No. 00791920
300 West 6th Street, Suite 2250
Austin, Texas 78701
(512) 647-1900 (tel)
david.whittlesey@aoshearman.com

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on this the 24th day of September, 2024, I served a true and correct

copy of the foregoing instrument on all attorneys of record via e-filing.

Isl David P. Whittlesey
David P. Whittlesey

Plaintiffs' Response in Opposition to Defendants' Plea to the Jurisdiction
Cause No. DC-24-0387 22
1219
No. 15-25-00011-CV
IN THE COURT OF APPEALS
FOR THE FIFTEENTH DISTRICT OF TEXAS
AT AUSTIN
THE BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM,
THE UNIVERSITY OF TEXAS SYSTEM, and THE UNIVERSITY OF
TEXAS M.D. ANDERSON CANCER CENTER
Appellants
vs.
GENSETIX, INC.
Appellee
Appealed from the District Court, 152nd Judicial District
Harris County, Texas, The Honorable Robert Schaffer (Presiding)
Cause No. 2021-73071
TAB 3

APPELLEE’S BRIEF IN SURREPLY REGARDING CURADEV

Excerpts from Curadev’s
REPLY BRIEF
filed in the Fifteenth Court of Appeals
ACCEPTED
15-25-00004-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
3/31/2025 9:12 PM
CHRISTOPHER A. PRINE
No. 15-25-00004-CV CLERK
FILED IN
15th COURT OF APPEALS
In the Court of Appeals AUSTIN, TEXAS

For the Fifteenth District of Texas3/31/2025 9:12:14 PM
CHRISTOPHER A. PRINE
Clerk

Curadev Pharma Pvt. Ltd. and Curadev Pharma Limited,

Plaintiffs-Appellants,

v.

The University of Texas Southwestern Medical Center,
Dr. Xiaochen Bai, and Dr. Xuewu Zhang,

Defendants-Appellees.

Interlocutory Appeal from the 101st District Court of Dallas
County
Trial Court No. DC-24-03875

APPELLANTS’ REPLY BRIEF

ALLEN OVERY SHEARMAN STERLING US LLP
David P. Whittlesey
Trey Hebert
300 W. 6th Street, Suite 2250
Austin, Texas 78701
(512) 647-1900 (phone)

Jacob Fields
2601 Olive Street, 17th Floor
Dallas, Texas 75201
(214) 271-5777 (phone)

Attorneys for Curadev Pharma Pvt. Ltd. and Curadev Pharma
Limited
ORAL ARGUMENT REQUESTED
Appellants Curadev Pharma Pvt. Ltd. and Curadev Pharma

Limited (“Curadev” or “Appellants”) file this Reply Brief and would

respectfully show the Court as follows:

I. INTRODUCTION

Appellees present a revisionist view of what happened and what

Curadev has alleged. As explained in Appellants’ opening brief, the facts

as pleaded are what matter—not Appellees’ rendition of them. Despite

their obfuscation, Appellees acknowledge Curadev’s core operative

allegations:

1. Curadev developed a STING1 agonist that binds to an
allosteric transmembrane site of the STING protein.
Appellees’ Br. at 3.

2. Curadev licensed that STING agonist to third-party Takeda.
Id.

3. To verify its binding properties, Takeda contracted The
University of Texas Southwestern Medical Center (“UTSW”)
to conduct certain research on Curadev’s STING agonist
under the Sponsored Collaboration Research Agreement, (the
“Research Agreement”). Id. at 4.

1 “STING,” and other scientific concepts referenced herein were explained

in Curadev’s Amended Petition (e.g., CR.543-544, 549) and Appellants’
Br. (e.g., p. 1-3).
1
4. Pursuant to the Research Agreement, Takeda provided
Curadev’s STING agonist (the “test compound”) to Appellees.
Id.

5. Appellees performed the requested tests and confirmed that
the test compound bound to a unique allosteric
transmembrane site on STING. Id. at 6-7.

6. Appellees did not develop the test compound or independently
decide to test its allosteric binding properties. Id.

7. After the Research Agreement was terminated, Takeda
informed Appellees that Curadev invented the test compound.
Id. at 7.

8. Curadev requested that Appellees delay publication on
Curadev’s test compound and later offered to discuss joint
publication in July 2021. Id. at 8.

9. Meanwhile, Appellees identified one of Curadev’s publicly
disclosed compounds similar in structure (“C53”), and
confirmed it had similar binding properties. Id. at 8.

10. Appellees then published these “findings” in Nature as their
own, filed a patent application, and sought to commercialize
them through a collaboration with Curadev’s competitors. See
id. at 8.

Those facts appear to be undisputed. Appellees characterize

Curadev’s claim as a “fruit of the poisonous tree” argument. Id. at 9. To

the contrary, Appellees chopped down the tree that Curadev

painstakingly grew. As public officials, Appellees unlawfully used,

published, and misappropriated the proprietary fruits of Curadev’s labor.

2
Dated: March 31, 2025 Respectfully Submitted,

Allen Overy Shearman Sterling US
LLP

/s/ David P. Whittlesey
David P. Whittlesey
Texas Bar No. 00791920
david.whittlesey@aoshearman.com
Trey Hebert
Texas Bar No. 24067819
trey.hebert@aoshearman.com
300 West 6th Street, Suite 2250
Austin, TX 78701
(512) 647-1900 (tel)

Jacob Fields
Texas Bar No. 24115134
jacob.fields@aoshearman.com
The Link at Uptown
2601 Olive St., 17th Floor
Dallas, TX 75201
(214) 271-5777 (tel)

Attorneys for Appellants

43
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Cabrach Connor
Bar No. 24036390
cab@clands.com
Envelope ID: 107552328
Filing Code Description: Other Brief
Filing Description: Appellee's Brief in Surreply Regarding Curadev
Status as of 11/3/2025 7:04 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Terri Abernathy terri.abernathy@oag.texas.gov 10/31/2025 4:58:47 PM SENT

Victoria Gomez victoria.gomez@oag.texas.gov 10/31/2025 4:58:47 PM SENT

Thomas FLoose tom.loose@troutman.com 10/31/2025 4:58:47 PM SENT

David E.Harrell David.Harrell@troutman.com 10/31/2025 4:58:47 PM SENT

Deanna MarkowitzWillson deanna.willson@troutman.com 10/31/2025 4:58:47 PM SENT

Chris Dove Chris.Dove@troutman.com 10/31/2025 4:58:47 PM SENT

Monika Dziemianczuk monika.dziemianczuk@troutman.com 10/31/2025 4:58:47 PM SENT

Cabrach Connor Cab@CLandS.com 10/31/2025 4:58:47 PM SENT

Jennifer TatumLee Jennifer@CLandS.com 10/31/2025 4:58:47 PM SENT

Sergio Davila Sergio@CLandS.com 10/31/2025 4:58:47 PM SENT

Anthony Buzbee tbuzbee@txattorneys.com 10/31/2025 4:58:47 PM SENT

Ryan Pigg rpigg@txattorneys.com 10/31/2025 4:58:47 PM SENT

Rian Taff rtaff@txattorneys.com 10/31/2025 4:58:47 PM SENT

Mauricio Guevara mguevara@txattorneys.com 10/31/2025 4:58:47 PM SENT

Lionel Sims lsims@txattorneys.com 10/31/2025 4:58:47 PM SENT

Alyssa Bixby-Lawson alyssa.bixby-lawson@oag.texas.gov 10/31/2025 4:58:47 PM SENT