A.l.m. Holding Company, Ergon Asphalt & Emulsions, Inc. v. Zydex Industries Private Ltd., Zydex Inc.

United States Court of Appeals
for the Federal Circuit
______________________
A.L.M. HOLDING COMPANY, ERGON ASPHALT &
EMULSIONS, INC.,
Plaintiffs-Appellants
v.
ZYDEX INDUSTRIES PRIVATE LTD., ZYDEX INC.,
Defendants-Appellees
______________________
2025-1317
______________________
Appeal from the United States District Court for the
District of Delaware in No. 1:24-cv-00363-JPM, Judge Jon
P. McCalla.
______________________
Decided: May 19, 2026
______________________
J OSEPH D IEDRICH , Husch Blackwell LLP, Washington,
DC, argued for plaintiffs-appellants. Also represented by
J EFFER ALI, Minneapolis, MN; STEPHEN REID HOWE, Mil-
waukee, WI.
EDWARD T ULIN, Gish PLLC, New York, NY, argued for
defendants-appellees. Also represented by RAYMOND
J OHNSON BILDERBECK , ANDREW G ISH , CONOR MCD ONOUGH .
______________________
Before CHEN, CUNNINGHAM , and STARK, Circuit Judges.
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A. L. M. HOLDING COMPANY v. ZYDEX INDUSTRIES PRIVATE LTD. 2
CHEN, Circuit Judge.
A.L.M. Holding Company (A.L.M.) and Ergon Asphalt
& Emulsions, Inc. (Ergon) (collectively, Plaintiff) appeal
from a decision of the United States District Court for the
District of Delaware dismissing their patent infringement
suit against Zydex Industries Private Ltd. and Zydex Inc.
(collectively, Defendant) for lack of constitutional standing.
A.L.M. Holding Co. v. Zydex Indus. Priv. Ltd., No. 1:24-cv-
00363-JPM, 2024 WL 5276676, at *1 (D. Del. Nov. 25,
2024) (Decision). Prior to filing suit, Plaintiff licensed sev-
eral rights under the asserted patents to an exclusive licen-
see but retained others, including the right to sue third
parties for patent infringement, a right that was not ren-
dered illusory by the rights granted to the licensee. Be-
cause Plaintiff retained an exclusionary right sufficient to
satisfy the “irreducible constitutional minimum of stand-
ing,” we reverse and remand.
BACKGROUND
A. The Patent License Agreement
A.L.M. and Ergon are joint owners of the six patents-
in-suit, which relate to warm-mix asphalt paving methods
and compositions.1
On January 1, 2008, Plaintiff entered into an agree-
ment (the Agreement) licensing certain rights in the As-
serted Patents to MeadWestvaco Corporation (MWV), a
manufacturer and seller of asphalt additives. In 2015, af-
ter a corporate merger and reformation, Ingevity Corpora-
tion (Ingevity) replaced MWV as the licensee.
Under the Agreement, Plaintiff granted Ingevity an
“exclusive,” “royalty-bearing, worldwide license” to
1 The patents-in-suit are U.S. Patent Nos. 7,815,725;
7,981,466; 9,394,652; 10,214,646; 8,734,581; and 9,175,446
(collectively, Asserted Patents).
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“manufacture, have manufactured, import, use, sell, offer
to sell and otherwise commercialize Licensed Products.”
J.A. 81, ¶ 2.1. If Ingevity fails to pay Plaintiff guaranteed
“minimum annual royalty amounts,” then the “license shall
become non-exclusive.” Id.; see id. at 83–84, ¶ 3.1; id. at 85,
¶ 3.4.
In the event of any third-party patent infringement,
the Agreement provides for shared control of any infringe-
ment suit between Plaintiff and Ingevity. “If any unli-
censed third party” practices the patents, then Plaintiff
and Ingevity “shall mutually determine whether to pursue
such infringement.” Id. at 87, ¶ 5.1. If the parties decide
to jointly pursue legal action, then they “split 50:50” both
the costs and damages recovered. Id. If either party elects
not to pursue infringement, the other party may bring suit
independently. Id. ¶ 5.2. When a single party prosecutes
infringement, that party “will control the conduct of the le-
gal action, keep the non-initiating Party advised of its pro-
gress, and will retain for itself any damages recovered or
obtained in the legal action.” Id.
The Agreement also limits Ingevity’s ability to transfer
its rights. Before Ingevity may sublicense patent rights, it
must “provide[] the terms and conditions of any such sub-
license” to Plaintiff “for their prior review and approval”
which “shall not be unreasonably withheld.” Id. at 81,
¶ 2.3. “Sales made by a sublicensee shall be reported and
royalty paid to [Plaintiff] as if [Ingevity] had made such
sale.” Id. The Agreement also provides that “[t]he obliga-
tions in this Agreement shall be binding on any sublicensee
as if it were a Party hereto.” Id.
Likewise, before making any assignment under the
Agreement, Ingevity must obtain “written permission”
from Plaintiff, “not to be unreasonably withheld.” Id. at 93,
¶ 11.4. This right “otherwise may only be assigned” in cer-
tain particularized circumstances, such as “in connection
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with the transfer of substantially all of” a party’s “assets.”
Id.
Notwithstanding Ingevity’s exclusive license and right
to sublicense, Plaintiff retained a royalty-free right to
(a) make, import, and use licensed products and paving
mixtures under the patents for research and development
purposes, and (b) to make, import, use, sell and offer to sell
paving mixtures containing licensed products purchased
from Ingevity. Id. at 81–82, ¶¶ 2.1, 2.4. Plaintiff retained
the royalty-free right to sublicense to their affiliates the
rights they themselves retained in Agreement ¶ 2.4. Id.
The Agreement provides Plaintiff with the right to ter-
minate the Agreement based on any material breach by In-
gevity, subject to notice and three months to cure any such
breach. Id. at 90, ¶ 9.3. In addition, Plaintiff maintains
control of any continuing patent prosecution and assumed
the obligation to pay maintenance fees on the patents-in-
suit. Id. at 87, ¶ 4.3.
B. District Court Litigation
On March 21, 2024, Plaintiff filed this action against
Defendant, alleging infringement of the six Asserted Pa-
tents. See J.A. 16–68. Defendant filed a motion to dismiss
solely for lack of Article III standing.
Upon reviewing the different provisions of the Agree-
ment, the district court concluded that Plaintiff lacked con-
stitutional standing to pursue the infringement suit and
granted Defendant’s motion to dismiss. Decision, 2024 WL
5276676, at *8. The district court first determined that
Plaintiff’s reserved usage rights and ability to review sub-
licensing terms under the Agreement ¶¶ 2.1, 2.3, and 2.4
were not exclusionary rights. Id. at *3–5. Similarly, it con-
cluded that Plaintiff’s royalty rights did not confer consti-
tutional standing. Id. at *5.
The district court next determined that Plaintiff’s right
to sue was not an exclusionary right sufficient to establish
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Article III standing. Id. at *6–7. In doing so, the district
court relied heavily on this court’s decision in Morrow v.
Microsoft Corp., 499 F.3d 1332 (Fed. Cir. 2007), where we
held that a plaintiff’s contractual right to sue for infringe-
ment—separated from all other patent rights—did not con-
fer an exclusionary right sufficient for constitutional
standing. 499 F.3d at 1342–43; Decision, 2024 WL
5276676, at *6. The district court also relied on Deere &
Co. v. Kinze Manufacturing, Inc., 683 F. Supp. 3d 904 (S.D.
Iowa 2023), which similarly held that a patent owner’s re-
tained right to sue was not an exclusionary right conferring
constitutional standing. 683 F. Supp. 3d at 920–21; Deci-
sion, 2024 WL 5276676, at *6.
The district court then determined that Plaintiff’s abil-
ity to collect damages and terminate the Agreement were
likewise insufficient to establish constitutional standing.
Id. at *7–8. Thus, because it determined that Plaintiff did
not have Article III standing, the district court dismissed
the action without prejudice. Id. at *8.
Plaintiff timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(1).
STANDARD OF REVIEW
We review Article III standing determinations de novo.
Intell. Tech LLC v. Zebra Techs. Corp., 101 F.4th 807, 813
(Fed. Cir. 2024). In interpreting a contract, we generally
apply state law to determine “who owns the patent rights
and on what terms.” Bd. of Trs. of Leland Stanford Junior
Univ. v. Roche Molecular Sys., Inc., 583 F.3d 832, 841 (Fed.
Cir. 2009) (citation and internal quotation marks omitted).
The Agreement is governed by Wisconsin law, J.A. 91,
¶ 10.1, which requires that “[w]here the terms of a contract
are clear and unambiguous, we construe the contract ac-
cording to its literal terms.” Tufail v. Midwest Hosp., LLC,
833 N.W.2d 586, 592 (Wis. 2013). We review the district
court’s interpretation of a contract de novo. Aeroground,
Inc. v. CenterPoint Props. Tr., 738 F.3d 810, 813 (7th Cir.
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2013) (citation omitted); see also Mutakaber v. Sec’y of
State, 162 F.4th 1141, 1146 (Fed. Cir. 2025) (“Contractual
interpretation is a pure legal issue.” (citation and internal
quotation marks omitted)).
D ISCUSSION
Article III standing requires the plaintiff to establish
the “irreducible constitutional minimum of standing”:
(1) injury in fact; (2) causation; and (3) redressability.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). In
this appeal, the parties dispute only the first require-
ment—injury in fact—which requires an “actual or immi-
nent,” “concrete and particularized” “invasion of a legally
protected interest.” Id. at 560. That requirement must ex-
ist at the inception of the suit and persist throughout the
litigation. Zebra Techs., 101 F.4th at 813.
For patent infringement lawsuits, in general, the ques-
tion for the constitutional injury-in-fact inquiry is “whether
a party has an exclusionary right.” Id. at 814 (emphasis in
original). “A patent owner has exclusionary rights as a
baseline matter unless it has transferred all exclusionary
rights away.” Id. at 816. “As we explained in Morrow, ‘ex-
clusionary rights’ involve the ability to exclude others from
practicing an invention or to ‘forgive activities that would
normally be prohibited under the patent statutes.’” Lone
Star Silicon Innovations LLC v. Nanya Tech. Corp.,
925 F.3d 1225, 1234 (Fed. Cir. 2019) (quoting Morrow,
499 F.3d at 1342). This court, however, has not “enumer-
ate[d] the exclusionary rights afforded by a patent or fully
define[d] their scope.” Zebra Techs., 101 F.4th at 816.
The Article III inquiry is distinct from the separate
question of statutory standing under 35 U.S.C. § 281. See
id. at 814. Article III asks whether the plaintiff has suf-
fered a constitutionally cognizable injury, while Sec-
tion 281 asks whether the plaintiff qualifies as a “patentee”
entitled to sue for infringement—typically by determining
whether, in the case of a patent owner, it has transferred
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away, or in the case of a licensee, it has been transferred
“all substantial rights”2 in the asserted patents. Lone Star,
925 F.3d at 1229. Following the Supreme Court’s decision
in Lexmark International, Inc. v. Static Control Compo-
nents, Inc., 572 U.S. 118 (2014), we “clarified that so-called
‘statutory standing’ defects do not implicate a court’s sub-
ject-matter jurisdiction.” Lone Star, 925 F.3d at 1235 (cit-
ing Lexmark, 572 U.S. at 128 n.4). The distinction
therefore matters: constitutional standing “is a jurisdic-
tional requirement” that is “incurable if absent at the ini-
tiation of suit,” whereas a statutory standing defect is
“curable by joinder.” Zebra Techs., 101 F.4th at 814 (cita-
tions omitted).
Accordingly, a plaintiff may have constitutional stand-
ing without satisfying the additional statutory require-
ment of possessing “all substantial rights.” See, e.g., Lone
Star, 925 F.3d at 1236 (explaining that although the pur-
ported assignee plaintiff lacked all substantial rights re-
quired under § 281, its allegations still satisfied Article III);
Univ. of S. Fla. Rsch. Found., Inc. v. Fujifilm Med. Sys.
2 We dealt with the concept of “all substantial rights”
in Vaupel Textilmaschinen KG v. Meccanica Euro Italia
SPA, where, following the Supreme Court’s decisions in
Waterman v. Mackenzie, 138 U.S. 252 (1891) and Nicolson
Pavement Co. v. Jenkins, 81 U.S. 452 (1871)—which eluci-
dated the distinction between a license and an assignment
and their effect on a party’s right to sue under a patent—
we stated the need to “examine whether the agreements
transferred all substantial rights to the . . . patent and
whether the surrounding circumstances indicated an in-
tent to do so.” Vaupel, 944 F.2d 870, 874 (Fed. Cir. 1991).
Thus, the concept of “all substantial rights” relates to what
is or may be transferred rather than what a patent owner
has, as it starts with all rights.
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U.S.A., Inc., 19 F.4th 1315, 1324 (Fed. Cir. 2021) (same for
sublicensee).
We have acknowledged that our standing jurispru-
dence has not always been clear, thereby creating a chal-
lenge for district courts applying our precedent. Before
Lone Star, “many of this court’s opinions had improperly
melded the injury-in-fact inquiry with the § 281 inquiry—
often performing a combined analysis of the two simulta-
neously.” Zebra Techs., 101 F.4th at 814. Our prior lack of
delineation, at times, has led to uncertainty as to whether
a party has Article III standing to sue for patent infringe-
ment where the patent rights have been divided through
licensing agreements, such as the one at issue here. In at-
tempting to reconcile our precedents, some district courts
have drawn a bright line between our cases addressing con-
stitutional standing and those addressing statutory stand-
ing, concluding that cases addressing one side of that line
have little, if any, relevance to cases on the other side. See,
e.g., Decision, 2024 WL 5276676, at *7 & n.5; Recor Med.,
Inc. v. Medtronic Ir. Mfg. Unlimited Co., No. 22-cv-03072-
TLT, 2025 WL 2272414, at *5–6 (N.D. Cal. July 7, 2025).
But, although the two standing inquiries are distinct, the
same facts bearing on whether a patent owner has granted
“all substantial rights” to a licensee to enable the licensee
to have statutory standing may also bear on whether the
owner retained “an exclusionary right” sufficient for consti-
tutional standing. See Azure Networks, LLC v. CSR PLC,
771 F.3d 1336, 1343–44 (Fed. Cir. 2014) (applying a com-
bined analysis and finding a patent owner lacked an exclu-
sionary right because it transferred away all substantial
rights), vacated on other grounds, 575 U.S. 959 (2015).
Thus, the two factual analyses can overlap.
Accordingly, cases analyzing statutory standing can be
instructive for constitutional standing. For example, in
Zebra Technologies, this court expressly cited with ap-
proval Alfred E. Mann Foundation for Scientific Research
v. Cochlear Corp., a statutory standing case, in its analysis
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determining that the plaintiff patent owner there had con-
stitutional standing. Zebra Techs., 101 F.4th at 816 (citing
Mann, 604 F.3d 1354, 1361 (Fed. Cir. 2010)). In doing so,
we characterized Mann as “concluding that the patent
owner had not transferred away all rights, even under an
exclusive license with rights to sublicense, where the pa-
tent owner retained the right to sue.” Id. Thus, whether a
licensee’s granted rights can be used to nullify the patent
owner’s right to sue is a question that may arise under both
§ 281 and Article III standing inquiries, and Mann’s an-
swer to that question is therefore instructive here regard-
less of the doctrinal label under which it was decided.
In particular, Mann explains why a patent owner’s re-
tained right to sue is not illusory3 where the patent owner
maintains meaningful control over enforcement and no
other party has the ability to interfere with that enforce-
ment right. 604 F.3d at 1361–63. Although satisfying the
“all substantial rights” test under the statutory standing
inquiry addressed in Mann requires a totality assessment
of all rights retained and transferred, see Mann, 604 F.3d
at 1360–61, the factual reasoning courts apply within that
analysis—such as whether a licensee’s granted rights ren-
der the patent owner’s retained right to sue illusory—is rel-
evant to the Article III question of whether the patent
owner retains a concrete, non-illusory exclusionary inter-
est. That shared factual reasoning, not any equivalence of
the overall legal standards for constitutional and statutory
standing, makes Mann instructive here.
3 A patent owner’s right to sue would be illusory, for
example, when its licensee could effectively extinguish it
unilaterally by granting a royalty-free sublicense to an ac-
cused infringer, without needing the patent owner’s con-
sent. See Speedplay, Inc. v. Bebop, Inc., 211 F.3d 1245,
1251 (Fed. Cir. 2000).
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We now turn to the present appeal. Plaintiff argues
that their retained rights as patent owner—including the
right to sue, sublicensing control, and royalty interests—
are collectively sufficient to establish that they retained an
exclusionary right required for Article III standing. Appel-
lant Br. 12, 35.4 We agree.
A patent owner’s retained right to sue is a strong indi-
cator of an exclusionary right. Cf. Mann, 604 F.3d at 1361
(recognizing that “the most important consideration” of the
standing analysis involves “the nature and scope of any
right to sue purportedly retained by the licensor”). A right
to royalties, while not itself an exclusionary right, can fur-
ther evidence an exclusionary right, particularly when
paired with other provisions that “involve the ability to ex-
clude others from practicing an invention.” Lone Star,
925 F.3d at 1234; see id. (identifying Plaintiff’s right to “col-
lect royalties” as among the reasons it had Article III
standing). Moreover, a patent owner’s sublicensing veto
rights, even if not to be unreasonably withheld, reflect
“substantial ongoing control” such that the licensee cannot
sublicense free of the owner’s interests. Propat Int’l Corp.
v. Rpost, Inc., 473 F.3d 1187, 1191 (Fed. Cir. 2007); see also
Lone Star, 925 F.3d at 1232–33 (reasoning that licensor’s
transfer veto, not to be unreasonably withheld, ensured
that licensor had control over how the patents were as-
serted). Taken together, these rights satisfy constitutional
standing.
In this case, Plaintiff retains a sublicensing veto that
(while it must be reasonably exercised) prevents Ingevity
4 In the alternative, Plaintiff argues that their alle-
gations of monetary harm independently satisfy the consti-
tutional injury-in-fact requirement. Appellant Br. 25–27.
Because we conclude that Plaintiff retains an exclusionary
right sufficient for constitutional standing, we need not
reach this issue.
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from granting sublicenses absent Plaintiff’s consent or free
of Plaintiff’s royalty interest. See J.A. 81, ¶ 2.3. That con-
sent right over sublicensing helps preserve Plaintiff’s ex-
clusionary interest because it prevents the licensee from
unilaterally authorizing an accused infringer’s practice of
the patents without Plaintiff’s approval and royalty inter-
ests. Moreover, “infringement would amount to an inva-
sion of [Plaintiff’s] legally protected interest” in the patents
because it deprives it of royalties to which it is entitled as
a patent owner. Zebra Techs., 101 F.4th at 813. Plaintiff’s
right to sue, right to veto sublicenses, and royalty interests
confirm that Plaintiff retains an exclusionary right, estab-
lishing that Plaintiff retains a concrete stake in excluding
unauthorized practice of the patents and a mechanism to
enforce that interest. See J.A. 87–88, ¶¶ 5.1–5.2; id. at 83–
84, ¶ 3.1; see also Zebra Techs., 101 F. 4th at 816 (acknowl-
edging a patent owner’s right to sue in Mann as supporting
a retained exclusionary right). Plaintiff has, thus, demon-
strated a concrete injury in fact sufficient to confer consti-
tutional standing.
Indeed, Plaintiff’s retained rights mirror those that we
considered in Mann. See 604 F.3d at 1357–58. In Mann,
the patent owner retained certain rights under the licens-
ing agreement, including a secondary right to sue (should
the licensee elect not to file an infringement action), enti-
tlement to royalties, and veto authority over sublicenses.
Id. Its standing was not defeated even when it granted to
the licensee the exclusive rights to use, make, and sell the
patented invention; the first right to sue; and the right to
sublicense—rights that are granted to Ingevity as well. See
id.; J.A. 81, ¶ 2.1.5 Here, Plaintiff retains analogous rights,
5 None of Defendant’s attempts to factually distin-
guish Mann are persuasive. See Appellee Br. 47–50. First,
that Ingevity holds the exclusive right to sublicense is not
dispositive because that right is constrained by Plaintiff’s
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including a right to sue, see J.A. 87–88, ¶¶ 5.1–5.2, royalty
interests, see id. at 83–84, ¶ 3.1, and veto authority over
sublicenses, see id. at 81, ¶ 2.3. Mann’s analysis of whether
the patent owner’s enforcement right was illusory under
analogous facts supports the conclusion that Plaintiff’s re-
tained rights are similarly non-illusory here. Mann thus
informs, though does not dictate, our analysis of constitu-
tional standing here.
As explained above, Defendant and the district court
erred in treating Mann as limited to statutory standing.
See Appellee Br. 47–48; Decision, 2024 WL 5276676, at *7.
While the Mann court applied the “all substantial rights”
analysis for statutory standing, we later on in Zebra Tech-
nologies expressly cited the facts of Mann to support our
constitutional standing analysis there. 101 F.4th at 816
(citing Mann, 604 F.3d at 1361). That reliance confirms
that Mann is also relevant for analyzing constitutional
standing.6
Defendant and the district court instead rely on Mor-
row to argue that Plaintiff’s right to sue does not confer
constitutional standing. Appellee Br. 45; Decision,
2024 WL 5276676, at *6. But Morrow is distinguishable.
In Morrow, this court held that the plaintiff’s right to sue
for infringement was not, in that case, an exclusionary
veto rights and royalty interests. Second, although Ingev-
ity retains all proceeds from litigation that it initiates on
its own, Plaintiff retains the right to join in any litigation
at the outset, and thereby continues to exercise meaningful
control over the enforcement mechanism.
6 We do not hold that any party with statutory stand-
ing necessarily satisfies Article III, or that the “all substan-
tial rights” test governs the constitutional inquiry; rather,
we look to Mann only for its analysis of whether the licen-
see’s powers rendered the patent owner’s retained enforce-
ment interest illusory.
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right sufficient for constitutional standing. 499 F.3d at
1342–43. But, unlike the Plaintiff here, the plaintiff in
Morrow did not own the patent; its right to sue was con-
tractually separated from patent ownership and all other
underlying patent rights—the rights to make, use, or sell
the patented invention, to license and sublicense the pa-
tent, and collect royalties from it—which were held by a
different party. Id. at 1336, 1338. That is, the plaintiff
possessed only a bare right to sue.7
Importantly, the plaintiff’s right to sue in Morrow was
“illusory” because the patent owner there could moot any
suit brought by the plaintiff by granting a royalty-free sub-
license to the accused infringer. Cf. Mann, 604 F.3d
at 1362. In Mann, this court explained that the patent
owner’s right to sue in that case was not illusory in light of
its retained royalty interests in any sublicenses. Id. That
is, the patent owner retained the right to exclude parties
from practicing the patent unless they compensated the pa-
tent owner as demanded. We also distinguished
Speedplay, Inc. v. Bebop, Inc., where “we held that a licen-
see’s right to grant royalty-free sublicenses to defendants
7 Morrow is also distinguishable because it ad-
dressed a licensee’s standing. We have noted that, in some
instances, the “licensee-versus-patentee distinction” may
be “critical.” Zebra Techs., 101 F.4th at 816. In Zebra Tech-
nologies, this court explained that specific inquiries for un-
derstanding whether a licensee was granted an
exclusionary right—such as whether another entity pos-
sessed the right to license—“do not provide a reasonable
proxy for understanding whether a patent owner retains at
least one exclusionary right.” Id. Here, that a licensee (In-
gevity) has certain rights, including the shared right to sue
on the patents, does not foreclose the possibility that Plain-
tiff retains at least one exclusionary right as the patent
owner.
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sued by the licensor rendered illusory the licensor’s right
to sue.” Mann, 604 F.3d at 1362 (citing 211 F.3d at 1251).
The licensee’s right to sublicense in Mann, in contrast, did
not extinguish the patent owner’s right to sue because any
sublicense grants must pay “specified pass-through royal-
ties” to the patent owner. Id.
Here, as in Mann, Ingevity’s sublicensing right is con-
strained in a manner that preserves Plaintiff’s right to sue.
Plaintiff may withhold consent to Ingevity’s sublicenses
and is entitled to collect royalties from Ingevity and any
sublicensees. J.A. 81, ¶ 2.3.8 Because Ingevity cannot sub-
license the patent free from Plaintiff’s consent and royalty
interests, Plaintiff’s retained right to sue is not illusory.
Defendant contends that Plaintiff’s right to sue is not
an exclusionary right because they cannot end a lawsuit by
granting a license. Appellee Br. 45–46. But the ability to
sublicense is not the only means by which Plaintiff could
settle litigation. Plaintiff may also settle suits through
monetary payment and an agreement by an accused in-
fringer to cease practicing the patents. See J.A. 87–88,
¶ 5.2 (providing that the “Prosecuting Party will control
the conduct of the legal action”). Thus, even in light of
8 Defendant’s contention that Plaintiff lacks any
right to receive any royalties from sublicensees because
they receive royalties exclusively from Ingevity is unper-
suasive. See Appellee Br. 40. The Agreement expressly
provides that “[s]ales made by a sublicensee shall be re-
ported and royalty paid to [Plaintiff] as if [Ingevity] had
made such sale.” J.A. 81, ¶ 2.3. Further, if Ingevity fails
to pay the pass-through royalties, then Plaintiff may ter-
minate the Agreement and any sublicenses. Id. at 90, ¶ 9.3
(providing for termination upon material breach by Ingev-
ity); id. at 81, ¶ 2.3 (“Upon any termination of this Agree-
ment . . . all sublicensee rights shall also terminate.”).
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A. L. M. HOLDING COMPANY v. ZYDEX INDUSTRIES PRIVATE LTD. 15
Ingevity’s sublicensing rights, Plaintiff retains a meaning-
ful ability to settle the lawsuits they initiate.
On these facts, Plaintiff retained an exclusionary right
sufficient for Article III standing, namely the non-illusory
right to sue that their licensee, Ingevity, could not nullify
through unilateral, royalty-free sublicensing. The district
court’s contrary holding set too demanding a threshold for
the “irreducible constitutional minimum of standing.” See
Lujan, 504 U.S. at 560; Lexmark, 572 U.S. at 125.
CONCLUSION
Plaintiff retained at least an exclusionary right after
their transfer of rights to Ingevity under the Agreement.
Because Plaintiff has constitutional standing, we reverse
and remand.
REVERSED AND REMANDED
COSTS
Costs to Appellant.
Case: 25-1317 Document: 52 Page: 15 Filed: 05/19/2026

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