Curadev Pharma PVT. LTD. and Curadev Pharma Limited v. the University of Texas Southwestern Medical Center, Dr. Xiaochen Bai, and Dr. Xuewu Zhang

Opinion

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 TABLE OF CONTENTS

I. Introduction ....................................................................................... 1

II. Appellees Wrongly Claim Intellectual Property. ............................. 3

A. Curadev had discovered distinct STING agonists different from traditional CDN site-targeting agonists. ....................... 3

B. Takeda independently verified Curadev’s finding before engaging UTSW. ...................................................................... 5

C. Takeda then directed Appellees to identify the allosteric binding site of Curadev’s test compound. ............................... 8

D. Appellees’ work was not an “independent discovery.”............ 9

E. Appellees broadcast their stolen lesson, further amplifying the harm to Curadev. ............................................................. 10

III. Curadev Has Adequately Pleaded a Takings Claim. .................... 12

A. Curadev alleged intentional acts by the State Appellees. ... 12

1. Appellees’ proposed private-or-sovereign analysis is the wrong test for intent in takings claims. ................ 14

2. Self confirms that the Amended Petition adequately alleges intent. ................................................................ 16

3. Brownlow supports Curadev’s takings claim with respect to intent. ........................................................... 17

B. Curadev alleged that Appellees’ intentional acts resulted in the taking, damaging, or destruction of Curadev’s property. ................................................................................. 19

C. Appellees acknowledge that the Supreme Court has recognized that intellectual property may be the subject of takings claim. ......................................................................... 21

1 IV. Curadev Has Adequately Pleaded that Appellees Waived Sovereign Immunity for the Non-Constitutional Claims. ............. 24

V. The Tort Claims Act Does Not “Mandate Dismissal” of the Professors. ........................................................................................ 27

A. The election-of-remedies provision does not apply to ultra vires claims. ............................................................................ 27

B. The Court should reject Appellees’ invitation to ignore the amended petition.................................................................... 31

VI. Curadev Has Adequately Pleaded an Ultra Vires Claim against the Professors. ................................................................................. 35

VII. Curadev Timely Objected to Improper Hearing in Front of the Associate Judge. .............................................................................. 40

VIII. Appellees’ Other Miscellaneous Attacks Are Meritless................. 41

2 TABLE OF AUTHORITIES

Page

Cases

Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) ................................................................. 36

Bell v. City of Grand Prairie, 221 S.W.3d 317 (Tex.App.-Dallas 2007, no pet.) ................................ 40

Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972) ................................................................. 36

City of Arlington v. Randall, 301 S.W.3d 896 (Tex.App.–Fort Worth 2009, pet. denied) ................ 31

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ............................................... 35, 36, 37, 38

City of Houston v. Houston Mun. Employees Pension Sys., 549 S.W.3d 566 (Tex. 2018) ................................................................. 30

City of Houston v. Vallejo, 371 S.W.3d 499 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) .................................................................................................. 35

City of San Antonio v. Polanco & Co., L.L.C., No. 04-07-00258-CV, 2007 WL 3171360 (Tex. App.—San Antonio Oct. 31, 2007, pet. denied) ............................................... 13, 14

Cobb v. Harrington, 190 S.W.2d 709 (Tex. 1945) ................................................................. 35

Dallas City Cmty. College Dist. v. Clear Channel Outdoor, Inc., No. 05-07-00701-CV, 2008 WL 3307085 (Tex. App.—Dallas July 31, 2008, pet. denied) ..................................................................... 12, 13

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997) ..................................................... 25, 26, 30 3 Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) ................................................................. 29

Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591 (Tex. 2001) ............................................................. 12, 13

Hall v. McRaven, 508 S.W.3d 232 (Tex. 2017) ................................................................. 37

Hansen v. United States, 65 Fed. Cl. 76 (2005) ............................................................................ 15

Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54 (Tex. 2018) ................................................................... 39

Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154 (Tex. 2016) ................................................................. 30

Kilgore Indep. Sch. Dist. v. Axberg, 535 S.W.3d 21 (Tex. App.—Texarkana 2017, no pet.)........................ 31

Lazarides v. Farris, 367 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ...... 29

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) ........................................................... 28, 29

Molina v. Alvarado, 463 S.W.3d 867 (Tex. 2015) ................................................................. 29

Oncor Elec. Delivery Co. NTU, LLC v. Wilbarger Cnty. Appraisal Dist., 691 S.W.3d 890 (Tex. 2024) ................................................................. 24

Pidgeon v. Turner, 625 S.W.3d 583 (Tex. App.—Houston [14th Dist.] 2021, no pet.) ...... 37

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011) ................................................................. 24

4 Smith v. Lutz, 149 S.W.3d 752 (Tex. App.—Austin 2004, no pet.) ............................ 12

State v. Holland, 221 S.W.3d 639 (Tex. 2007) ........................................................... 12, 13

Tex. Dep't of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411 (Tex. 2015) ............................................... 29, 31, 33, 34

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ................................................................. 39

Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) ................................................................. 25

Tex. Dep't of Transp. v. Self, 690 S.W.3d 12 (Tex. 2024) ........................................... 12, 13, 15, 16, 17

Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849 (Tex. 2002) ................................................................... 24

Tex. S. Univ. v. State St. Bank & Tr. Co., 212 S.W.3d 893 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) .................................................................................................. 27

Univ. of Tex. Health Sci. Ctr. of Hous. v. Rios, 542 S.W.3d 530 (Tex. 2017) ..................................................... 29, 32, 33

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003) ................................................................. 25

Statutes

Tex. Civ. Prac. & Rem. Code Ann. § 101.106 .......................................... 28

Tex. Educ. Code § 51.914 ............................................................. 26, 38, 39

Other Authorities

Tex. R. Civ. P. 91 ...................................................................................... 19

5 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 This constitutes a taking of Curadev’s property under the Texas

Constitution.

II. APPELLEES WRONGLY CLAIM INTELLECTUAL PROPERTY.

In opposition, Appellees claim for the first time that the “Professors

ma[de] their own discovery” (Appellees’ Br. at 9) and UTSW, not

Curadev, “was actually the title holder of the discovery.” Id. at 33.

Appellees baselessly assert that, contrary to Curadev’s allegations, they

made these findings “independently.” (See e.g., id. at 10, 20, 33, and 38).

This newfound ownership claim is wrong, and an affront to the years of

research and millions of dollars that Curadev invested into developing its

intellectual property. Curadev’s takings claim is based on Appellees’

misuse and destruction of Curadev’s trade secret property. Although

Curadev’s claim is not dependent on how Curadev developed such

property, further explanation is warranted considering Appellees’ galling

assertion of independent development and ownership.

A. Curadev had discovered distinct STING agonists different from traditional CDN site-targeting agonists.

Curadev started a program in 2016 to discover small molecule

activators of the STING protein that were fully differentiated from the

3 natural ligands of the protein, i.e. cyclic dinucleotides (CDN) and their

analogues. This complex drug discovery program delivered a series of

compounds with novel chemical structures and properties compared to

CDNs.

As explained in Curadev’s Amended Petition, “From the inception

of its STING agonist program, Curadev sought to identify traditional

small molecule drugs differentiated from the typically large and polar

CDNs through an extensive iterative research and testing program that

took four years and cost approximately US$12.5 million.” CR.544.

Identifying these development candidates is an immensely rigorous

and resource-intensive endeavor, requiring the synthesis, screening, and

evaluation of more than a thousand compounds. Each compound must

undergo cellular screens to identify promising leads which are then

meticulously evaluated across critical parameters, including cellular and

molecular pharmacology, anti-cancer pharmacology, pharmacodynamics

(how the drug interacts with biological systems), pharmacokinetics (how

the drug is absorbed, distributed, metabolized, and excreted), and safety

assessments to ensure its viability for further development. This process

demands cutting-edge scientific expertise, extensive laboratory 4 experimentation, and countless hours of data analysis, with only a

fraction of compounds ultimately meeting the stringent criteria required

to advance to the next stage of development. There is documented risk in

the drug discovery process that the multi-year effort to identify novel

drug-like chemical structures will fail. Therefore, the security of its

research effort was paramount for Curadev.

“Through this effort,” stated the Amended Petition, “Curadev

designed and developed several potent small molecule human STING

agonists which were allosteric human STING agonists that likely bound

to a unique site in what is known as the ‘transmembrane region’ of the

STING protein.” CR.544. At the time of this discovery, it wasn’t publicly

known in the field that STING agonists could bind to the transmembrane

region. Id. Curadev’s discovery was absolutely groundbreaking.

B. Takeda independently verified Curadev’s finding before engaging UTSW.

In May 2019, Curadev licensed Takeda to research and develop a

STING agonist antibody-drug conjugate using Curadev’s proprietary

small molecule STING agonist as the key ingredient.

5 Takeda had independently reaffirmed the same finding that the

test compound is a direct activator of the STING protein. The only

remaining question concerned the exact binding site within the STING

protein. Given the significant structural differences between Curadev’s

highly hydrophobic compounds and the hydrophilic CDN molecules, it

was evident that Curadev’s compounds were not expected to

conventionally fit into the pocket occupied by highly hydrophilic CDN

molecules but instead engaged STING at a different binding site (see

illustration).

6 The above image depicts a STING protein, including the previously

known binding site for most STING activators (upper blue oval), and the

unique site in the transmembrane domain where Curadev’s compound

binds (lower blue oval). Identifying this site was expected to facilitate

structural optimization, strengthen Curadev’s intellectual property

portfolio, and enhance its commercial opportunities.

7 C. Takeda then directed Appellees to identify the allosteric binding site of Curadev’s test compound.

Existing cellular, biochemical, and biophysical data already

confirmed that Curadev’s test compound functioned as a differentiated

STING agonist. Data from Curadev and Takeda confirmed that

Curadev’s compound did not bind to the “usual” binding site on the

STING protein, so Takeda surveyed their network of academic

contacts/collaborators to identify a group that had access to a full-length

structure of STING, as this would be the best means to identify the

binding site. Appellees Bai and Zhang (“the Professors”) had previously

published a structure of full-length STING, which led Takeda to provide

Curadev’s compound to Appellees.

As already discussed extensively, this project was a paid exercise

between Appellees and Takeda, where Appellees were directed to verify

the binding site of the test compound. Their access to Curadev’s STING

agonist was contractually limited to specific research within the scope of

a defined project for Takeda. As anticipated, Appellees confirmed that

Curadev’s compound interacted with and identified the unique STING

binding site.

8 D. Appellees’ work was not an “independent discovery.”

It is difficult to overstate how little “independent”

thought/analysis/invention this paid exercise required. Appellees could

not have identified the transmembrane binding site without Curadev’s

compound. Curadev does not deny that Appellees studied the test

compound after Takeda reached out to them—in fact they were paid and

directed to do this work. But it is inconceivable that Appellees could have

reached the same destination “independently.”

Appellees’ confirmation of the STING agonist’s binding site—after

Curadev had already identified and designed the compound for this very

purpose—was not an independent scientific breakthrough but rather a

predictable outcome based on Curadev’s prior work. Their ability to

confirm the compound’s interaction with the transmembrane site in “less

than a year” shows they were working within the framework already

established by Curadev, rather than making a novel, independent

discovery. See Appellees’ Br. at 10.

One way to illustrate the above—the STING protein can be

compared to a lock with multiple keyholes—some standard and others

specialized. Traditional STING agonists act as conventional keys fitting 9 into standard keyholes, whereas Curadev’s compounds function as

specialized keys that unlock STING in a unique and more efficient

manner. Appellees’ research verified that Curadev’s compounds fit into a

distinct and different binding site—one of the special keyholes.

Without Curadev’s foundational research, Appellees would not

have known special keyholes existed, much less the shape and design of

the key.

E. Appellees broadcast their stolen lesson, further amplifying the harm to Curadev.

Recognizing that Appellees certainly were prohibited from

publishing information about the specific key, Appellees desperately

searched for a similar key. At bottom, whether publishing on Curadev’s

exact test compound or another with the same secretly valuable

characteristics, Appellees destroyed Curadev’s trade secret property.

Essentially, Appellees stole a fast-track course from Curadev—

without consent and without just compensation. Before Curadev’s work,

no one even considered that STING agonists could bind to sites outside

the traditional CDN pocket. Curadev invested substantial time,

expertise, and resources in uncovering and validating this paradigm-

10 shifting discovery. Appellees short-circuited the scientific process using

knowledge gained under confidentiality, bypassing the extensive

research, trial, and error that would otherwise have been required to

independently reach the same conclusions.

This misappropriation had direct and far-reaching consequences.

As stated in the Amended Petition, among other harms suffered,

“… competitors to Curadev were and are able to access the benefits of

Curadev’s proprietary information without having to absorb the

substantial time and resource expenses that Curadev incurred in

developing its technology.” CR.561.

What was once a hard-earned, protected insight—that STING

agonists could engage with transmembrane sites rather than just the

conventional CDN pocket—has now been handed to the world on a silver

platter, destroying both the secrecy of that insight and its substantial

value. What should have remained a competitive advantage for Curadev

has instead become a roadmap for competitors.

11 III. CURADEV HAS ADEQUATELY PLEADED A TAKINGS CLAIM.

The elements of a takings claim are (1) an intentional act by the

State; (2) that resulted in the taking, damaging, or destruction of a

plaintiff’s property; (3) for public use. Appellants’ Br. at 9 citing Tex. Dep’t

of Transp. v. Self, 690 S.W.3d 12, 26 (Tex. 2024); Appellees’ Br. at 17;

citing State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007).

A. Curadev alleged intentional acts by the State Appellees.

Curadev alleged that Appellees intentionally performed acts that

resulted in the destruction of Curadev’s trade secret intellectual

property. Appellees argue that because Appellees obtained Curadev’s test

compound under contract, the intent element is not satisfied. They cite

to a spate of cases in which the plaintiff had knowingly entered into

contracts with the State, for which sovereign immunity applied to

enforcement of those contracts. Appellees’ Br. at 21-22, citing Gen. Servs.

Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 599 (Tex. 2001);

Holland, 221 S.W.3d at 644; Smith v. Lutz, 149 S.W.3d 752, 760 (Tex.

App.—Austin 2004, no pet.); Dallas City Cmty. College Dist. v. Clear

Channel Outdoor, Inc., No. 05-07-00701-CV, 2008 WL 3307085, at *3

12 (Tex. App.—Dallas July 31, 2008, pet. denied); City of San Antonio v.

Polanco & Co., L.L.C., No. 04-07-00258-CV, 2007 WL 3171360, at *1 (Tex.

App.—San Antonio Oct. 31, 2007, pet. denied).

But none of those cases applies here. Both Little-Tex and Holland

involved a private party that directly or via controlled entity entered into

an agreement with the State for a construction project. In Little-Tex, a

payments dispute arose, and the contractor brought a breach-of-contract

claim against the State and alternatively, a takings claim. In Holland,

the plaintiff sought to increase payment for water treatment facilities

provided under the contract based on subsequently issued patents.

Curadev is not seeking to increase payment or enforce any other

contractual term. Even if these decisions were once applicable, the recent

Self decision rejecting this line of analysis effectively overturned any

requirement to analyze the mindset of the state. See Self, 690 S.W.3d at

26.

Clear Channel involved a lease termination. Although the court

ultimately found no taking based on the contractual rights, the case was

not dismissed for lack of jurisdiction. In fact, it was a declaratory

judgment action brought by the State. Clear Channel Outdoor, Inc., 2008 13 WL 3307085, at *3. The court heard the dispute. Here, Appellees seek to

dismiss the case for want of jurisdiction based on sovereign immunity

before the trial court can even evaluate the evidence.

In City of San Antonio v. Polanco & Co., the city terminated an

agreement with the plaintiff related to concession stand operations at

city-owned facilities based on alleged failure by the plaintiff to meet

obligations. Polanco & Co., L.L.C., 2007 WL 3171360, at *1. The plaintiff

brought breach of contract claims, then added a takings claim in its

second amendment. Id.

These cases cited by Appellees concerned plaintiffs that entered

agreements with the government and then alleged breach of contract or

sought to modify the payment due under the agreement. None involved

situations where neither the plaintiff nor the State were aware of the

other at the time of the contract under which the State exercised

“colorable” rights.

1. Appellees’ proposed private-or-sovereign analysis is the wrong test for intent in takings claims.

Appellees argue that the “appropriate inquiry is whether UT

Southwestern was ‘acting as any private party could, and not a

14 sovereign’” when evaluating intent. Appellees’ Br. at 22. But Curadev

need not allege, much less prove, that Appellees acted coercively, or with

“specific” intent to “take” Curadev’s property. See, e.g., Self, 690 S.W.3d

at 26; Appellees’ Br. at 23. In Self, the State intentionally destroyed

certain privately owned trees under the mistaken belief that those trees

were part of the State’s right of way. The State, like Appellees here,

argued that it did not intend to take or damage Self’s private property,

and therefore was entitled to sovereign immunity. Self, 690 S.W.3d at 29.

In rejecting that argument, the Supreme Court was forceful and

clear: “[T]he Constitution means what it says: the government must pay

compensation when it intentionally takes private property for public

use—even if the government mistakenly believes that it has a legal right

to do so.” Id. at 29–30. The Supreme Court recognized that if the

government’s belief turns out to be correct, the takings claim will fail. Id.

But to deny jurisdiction entirely based on a claim of contractual right

would “permit government to escape its constitutional duty to

compensate its citizens for destruction of their property.” Id. (citing

Hansen v. United States, 65 Fed. Cl. 76, 81 (2005)).

15 2. Self confirms that the Amended Petition adequately alleges intent.

Despite ignoring Self in the first twenty-five pages of its brief,

including seven pages arguing that Curadev did not plead the requisite

intent, Appellees agree that the Supreme Court’s decision in Self is

relevant. Appellees’ attempt to distinguish Self boils down to a

complexity argument: cutting down trees is simple… Curadev’s trade

secrets are not… therefore the Supreme Court’s guidance in Self does not

apply. Not only is such a distinction immaterial, but it is also inaccurate.

Regardless of the complexity of science, Curadev’s claim is simple:

Appellees destroyed Curadev’s trade secrets with no legal right to do so

and Curadev is entitled to just compensation.

Appellees quote Self to support its claim that when government acts

on its rights under a contract, it is not exercising its sovereign powers.

Appellees’ Br. at 27. There are two key problems with Appellees’

interpretation of Self, both omitted from their quote, as indicated by

underline: “Similarly, no compensation is owed when the government

acts on its rights under a contract to which the parties have consented

because it is not exercising sovereign powers.” 690 S.W.3d at 27.

16 Appellees ignore (1) the question of immunity is incongruent with

whether compensation is ultimately owed; and (2) the parties must have

consented.

Curadev is not a party to Appellees’ contract with Takeda. That

contract cannot be the basis for a sovereign immunity defense against

Curadev. Even if the State is correct in arguing it enjoyed certain

contractual rights, it may only employ these arguments to attack the

takings claim at trial; the correct result is not dismissal at the pleadings

stage based on sovereign immunity. Id. at 29.

3. Brownlow supports Curadev’s takings claim with respect to intent.

Appellees also attempt to distinguish Brownlow v. State, which

similarly supports the viability of Curadev’s takings claim. Appellees’ Br.

at 28. Appellees misunderstand the significance of the case, claiming it

is “inapposite.” Id. In Brownlow, the State believed it had the legal right

to the Brownlows’ personal property (dirt) based on an agreement (agreed

judgment) between the State and Brownlow concerning an easement to

real property where the dirt was located. The State acted on that belief,

which turned out to be wrong, and took Brownlow’s property. When the

17 Brownlows brought a takings claim, the State argued the prior

agreement allowed its actions, and that sovereign immunity protected it

from any related claims. The court rejected that argument, determined

that existence of the prior contract did not preclude a takings claim for

property that the plaintiff alleged the State had no legal right to take,

and reversed the lower court’s dismissal.

Appellees present the same argument here. Rather than addressing

Curadev’s argument that it adequately pleaded the elements of a takings

claim, Appellees seek to reframe Curadev’s claim as a breach of contract

claim (for which Appellees argue sovereign immunity would apply).

Appellees’ Br. at 24. Curadev’s amended petition does not allege breach

of contract, and contorting Curadev’s pleadings to animate a sovereign

immunity defense makes no sense.

The Research Agreement is between Appellee UTSW and third-

party Takeda. Appellees’ Br. at 24. Curadev is not a party and did not

know of its existence until after it was terminated. And although

Appellees claim that Curadev “contends that Appellees breached the

contract,” Curadev has not presented such contentions, certainly not at

the page cited by Appellees. Id. Curadev is not seeking payment under 18 the Research Agreement or any other agreement, nor is Curadev seeking

to enforce any contractual term. For Appellants’ takings claim, the only

remedy Appellants seek is just compensation.

Appellees treat sovereign immunity as a defense in search of a

claim. It simply does not apply to Curadev’s takings claim. The State

cannot assert sovereign immunity—and certainly not at the pleadings

stage—simply by reciting that it had certain contractual rights.

B. Curadev alleged that Appellees’ intentional acts resulted in the taking, damaging, or destruction of Curadev’s property.

Appellees complain about the specificity to which Curadev

identified its trade secrets. Such complaints are misplaced and not

grounds for a plea to the jurisdiction. Curadev adequately described its

rights, putting Appellees on fair notice of Curadev’s claim that Appellees

destroyed Curadev’s trade secret property.

If Appellees wanted to complain that Curadev’s Amended Petition

inadequately described its trade secrets, the proper response was to

submit a special exception. See Tex. R. Civ. P. 91 (pleading insufficiencies

must be pointed out “with particularity”). This Court should reject

Appellees’ attempt to complain now. 19 As described in the Amended Petition (and Original Petition) and

again explained in Appellants’ Brief, Curadev has alleged that it had a

vested property right in its trade secret intellectual property. E.g.,

Appellants’ Br. at 11; Am. Pet at ¶ 58 (“Curadev was, at material times,

the owner of trade secrets involving Curadev’s STING agonist compound

technology, including the test compound provided to UTSW by Takeda,

C53, and knowledge generated from Curadev’s prior research evidencing

their unique binding features.”).

Appellees claim that because UTSW entered the Research

Agreement with Takeda, it had the right to publish all results from their

work on Curadev’s compound, and that their rights lasted at least

through September 2, 2021. Appellees’ Br. at 6, 37. This is wrong.

Appellees knew that Curadev did not consent to publication. If Appellees

truly believed they had the right to publish and exploit what they

learned, then they wouldn’t have scoured Curadev’s library of compounds

for an analog to publicize and circumvent the restrictions.

Furthermore, Appellees had no greater rights than what Takeda

had. Those rights terminated with the Research Agreement. Appellants’

Br. at 19. Appellees respond that Curadev did not allege that the 20 Research Agreement termination was communicated to Appellees, but as

discussed above, Appellees mindset is irrelevant to whether it took

Curadev’s property.

Regardless, Takeda informed Appellees that Curadev, not Takeda,

owned the test compound no later than November 16, 2020. CR.684.

Appellees were on notice that Takeda no longer had any rights to

Curadev’s compound, and that any right stemming from Takeda’s rights

would likewise cease. The core of Curadev’s takings claim is based on the

Appellees’ intentional actions after the termination and after Appellees

learned of Curadev’s existence and corresponding trade secret rights.

C. Appellees acknowledge that the Supreme Court has recognized that intellectual property may be the subject of takings claim.

Appellees acknowledge that intellectual property may be subject to

a takings claim and that sovereign immunity is not a defense to a

constitutional takings claim. Appellees’ Br. at 17-18. So Appellees twist

and water down Curadev’s takings claim and then argue that it has no

basis in law. Appellees assert that trade secrets can be taken by

disclosure and misuse, and because Appellees did not “disclose” the test

21 compound, only “misuse” remains. Appellees’ Br. at 36. To be clear,

Appellees disclosed and misused Curadev’s trade secrets.

Appellees’ purported summary of Curadev’s takings claim is copied

here (blue). Although similar to Curadev’s allegations, it is inaccurate or

incomplete in a few key areas. Curadev’s slightly revised version is

presented (green).

Appellees’ Summary Appellants’ Summary

Appellees were hired to analyze Curadev’s secret compound under confidentiality obligations in a Research Agreement

Appellees studied Curadev’s secret compound pursuant to, and allegedly Appellees studied Curadev’s secret outside of, the Research Agreement compound

Appellees gained knowledge about Appellees gained knowledge about Curadev’s secret compound Curadev’s secret compound, including its valuable binding characteristics

22 Appellees misused that knowledge to Appellees misused that knowledge to select an entirely different, and bypass a broad search and select from publicly disclosed, compound, C53 Curadev’s library a similar, analogous compound

Appellees conducted research on the entirely different, publicly disclosed Appellees conducted similar research on compound, C53 the similar, analogous compound

Appellees made their own discoverys Appellees confirmed that the similar and published their own research on compound exhibited similar valuable the entirely different, publicly binding characteristics and publicly disclosed compound, C53 disclosed those characteristics

Supposed taking of Curadev’s trade Taking of Curadev’s trade secrets in the secret in the secret Compound secret compound and its characteristics

Appellees argue that Curadev invites the court to waive immunity

for misappropriation claims. That is not so. Here, the taking is the

wrongful destruction of Curadev’s trade secret. There may be forms of

23 misappropriation that do not result in the destruction of the trade secret

property. This one did.

IV. CURADEV HAS ADEQUATELY PLEADED THAT APPELLEES WAIVED SOVEREIGN IMMUNITY FOR THE NON-CONSTITUTIONAL CLAIMS.

Appellees overreach when they assert that the “Texas Supreme

Court has consistently refused to recognize a waiver-by-conduct

exception against governmental entities.” Appellees’ Br. at 43. As an

initial matter, the string of cases Appellees rely upon are factually and

legally inapposite because they all focused on breach-of-contract claims

and declined to find waiver in part because, in the years since Federal

Sign, Texas created “comprehensive schemes that allow contracting

parties to resolve breach-of-contract claims against the government.”

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex.

2011) (declining to recognize waiver-by-conduct exception in a breach-of-

contract suit against a governmental entity in light of new statutory

scheme governing such claims); Tex. Natural Res. Conservation Comm’n

v. IT–Davy, 74 S.W.3d 849, 857 (Tex. 2002) (same); see also Oncor Elec.

Delivery Co. NTU, LLC v. Wilbarger Cnty. Appraisal Dist., 691 S.W.3d

890, 907 (Tex. 2024) (holding that disputes over avoidability of 24 agreements between taxpayers and appraisal-review boards does not

create jurisdictional question). Curadev does not assert any contract

claims.

While true that, in the cases cited by Appellees, the Court did not

find sufficient basis to find that a state entity’s inequitable conduct

estopped it from asserting immunity, the Court has never categorically

rejected the notion. To the contrary, the Court has recognized that “we

have not absolutely foreclosed the possibility that the judiciary may

abrogate immunity by modifying the common law.” Wichita Falls State

Hosp. v. Taylor, 106 S.W.3d 692, 699 (Tex. 2003). Thus, the Texas

Supreme Court has recognized that, “[o]n ‘rare occasions,’ we may

recognize a waiver absent explicit [statutory] language.” Tex. Dep’t of

Transp. v. Sefzik, 355 S.W.3d 618, 622 n.4 (Tex. 2011) (quoting Taylor,

106 S.W.3d at 697).

So, while Appellees try to denigrate it, the law has not changed

since Federal Sign, when the Texas Supreme Court recognized that

under certain circumstances it would find a waiver of immunity by

estoppel where the governmental entity’s actions make it inequitable for

a governmental entity to assert immunity. See Fed. Sign v. Tex. S. Univ., 25 951 S.W.2d 401, 408 n.1 (Tex. 1997) (noting that “[t]here may be other

circumstances where the State may waive its immunity by conduct other

than simply executing a contract”). Justice Hecht’s concurring opinion in

Federal Sign observed that, under some circumstances, a governmental

entity’s behavior that induced the plaintiff to perform the contract would

estop the governmental entity receiving the benefits of the contract from

asserting immunity from suit. Id. at 412–13 (Hecht, J., concurring).

And that is just what the Amended Petition pleads: a takings claim

where the governmental entity’s actions make it inequitable to assert

immunity—Appellees gained access to Curadev’s proprietary

information by entering the Research Agreement that restricted its use

to limited research purposes, for a limited time, and subject to strict

confidentiality requirements. Those confidentiality requirements were

also required by statute. See Tex. Educ. Code § 51.914(a). Instead of

adhering to those limitations, Appellees continued to secretly utilize

Curadev’s trade secrets, publish them as their own findings, file their

own patents, and then separately seek to commercialize that proprietary

information through a collaboration with Curadev’s competitors. CR.546,

552-54, 560, ¶¶ 21, 44, 45, 48, 71. The waiver-by-conduct exception to 26 immunity is evaluated “on the facts of each case, not as a categorical

matter or bright-line rule,” as Appellees argue. Tex. S. Univ. v. State St.

Bank & Tr. Co., 212 S.W.3d 893, 907 (Tex. App.—Houston [1st Dist.]

2007, pet. denied). In these circumstances, Appellees should not be

allowed to insulate themselves from any recourse by claiming sovereign

immunity, and they cite no authorities supporting that result.

V. THE TORT CLAIMS ACT DOES NOT “MANDATE DISMISSAL” OF THE PROFESSORS.

Instead of addressing the merits of the claims against the

Professors, Appellees renew their argument that the election-of-remedies

provision in the Tort Claims Act (“TCA”) requires their “automatic”

dismissal. This is incorrect and relies on a mistaken reading of both the

TCA and the nature of Curadev’s claims.

A. The election-of-remedies provision does not apply to ultra vires claims.

First and foremost, Appellees’ arguments on this score are entirely

meritless because Curadev pleads ultra vires claims against the

Professors, and the TCA does not apply to such claims. Appellees

repeatedly cite to precedent cases in which the Texas Supreme Court has

held that “all tort theories alleged against a governmental unit. . . are

27 assumed to be under the TCA” (Appellees’ Br. at 53), but none of those

cases involved ultra vires claims. Those are plainly outside of the TCA’s

scope.

For one, the TCA’s election-of-remedies provision applies to the

“filing of a suit under this chapter….” Tex. Civ. Prac. & Rem. Code Ann.

§ 101.106(a). Appellees skip over this crucial limitation. In their brief,

they argue that “the election-of-remedies provision now provides that the

‘filing of a suit’ against a governmental unit constitutes an ‘irrevocable

election’ that “immediately and forever bars any suit or recovery” against

an employee of that governmental unit,” suggesting that the Court need

not evaluate the nature of the claims asserted. Appellees’ Br. at 54. That

suggestion is wrong.

For starters, the TCA expressly provides that the remedies it

authorizes “are in addition to any other legal remedies,” so it is no

surprise that the Texas Supreme Court has repeatedly refused to apply

the TCA’s election-of-remedies rule to non-tort claims for which

immunity does not apply. See, e.g., Mission Consol. Indep. Sch. Dist. v.

Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (statutory discrimination claim

was not suit “filed under” the TCA and thus fell outside §101.106(e)’s 28 purview); Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d

411, 416 (Tex. 2015) (“[S]ection 1983 claims ... assert[ed] against ...

[governmental] [e]mployees ... are not brought under the Tort Claims

Act.”).

Noticeably, Appellees do not claim that sovereign immunity applies

to ultra vires claims. And none of the Texas Supreme Court cases cited

by Appellees holds otherwise. Mission Consol. Indep. Sch. Dist., 253

S.W.3d 654 (no ultra vires claim; plaintiff alleged defamation, infliction

of emotional distress, statutory claims); Univ. of Tex. Health Sci. Ctr. of

Hous. v. Rios, 542 S.W.3d 530, 538–39 (Tex. 2017) (no ultra vires claim;

plaintiff alleged tortious interference with business relationship and

breach of contract); Molina v. Alvarado, 463 S.W.3d 867 (Tex. 2015) (no

ultra vires claim; plaintiff alleged claims for negligent/reckless driving);

Franka v. Velasquez, 332 S.W.3d 367, 379 (Tex. 2011) (no ultra vires

claim; plaintiff alleged medical malpractice claims against doctors in

their individual capacities); Lazarides v. Farris, 367 S.W.3d 788, 805

(Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that, “because

[the plaintiff] is alleging ultra vires claims, the suit would not be barred

under [TCA] section 101.106(b)”). 29 Appellees repeatedly cite the Legislative Branch’s role in waiving

sovereign immunity, but the Texas Supreme Court has stated that,

“[e]ven if a governmental entity’s immunity has not been waived by the

Legislature, a claim may be brought against a governmental official if the

official engages in ultra vires conduct.” City of Houston v. Houston Mun.

Employees Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018); see

also Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,

158 (Tex. 2016) (“[W]hen a governmental officer is sued for allegedly ultra

vires acts, governmental immunity does not apply from the outset. Thus,

our ultra vires cases do not run afoul of our long-standing recognition

that “it is the Legislature’s sole province to waive or abrogate sovereign

immunity.”); Fed. Sign., 951 S.W.2d at 404 (“A private litigant does not

need legislative permission to sue the State for a state official’s violations

of state law.”) (citations omitted);

Thus, even if the TCA’s election-of-remedies provision applied to

Curadev’s tort claims against the Professors, it would not require

dismissal of the entire “suit” as Appellees argue; rather, the ultra vires

claims would remain because the Texas Supreme Court has expressly

recognized that the election-of-remedies provision that Appellees rely on 30 must be applied on a claim-by-claim basis. See Cannon, 453 S.W.3d at

416 (“Although subsection (e) references the filing of a “suit” and

dismissal of the “employees” rather than the filing and dismissal of

particular claims, the propriety of dismissal must be evaluated on a

claim-by-claim basis to give effect to the statute.”); City of Arlington v.

Randall, 301 S.W.3d 896, 904–05 (Tex.App.–Fort Worth 2009, pet.

denied) (holding that subsection (e) required the dismissal of claims

against an employee for negligence and damages for alleged state

constitutional violations, but did not require dismissal of a claim for a

declaratory judgment for such violations). See, e.g., Kilgore Indep. Sch.

Dist. v. Axberg, 535 S.W.3d 21, 35 (Tex. App.—Texarkana 2017, no pet.)

(TCA’s election-of-remedies provision did not apply where plaintiff

“brings declaratory judgment claims against [the state entity] and ultra

vires claims against [the state employee]”).

B. The Court should reject Appellees’ invitation to ignore the amended petition.

Because there is no real argument for applying the TCA to

Curadev’s ultra vires claims, Appellees urge the Court to simply ignore

them. Specifically, they argue that Curadev’s original petition contained

31 only tort claims (not ultra vires claims), and “an amended pleading

cannot undo a plaintiff’s original irrevocable election under the TTCA.”

Appellees’ Br. at 59. In support, Appellees rely on Univ. of Tex. Health

Sci. Ctr. of Hous. v. Rios, 542 S.W.3d 530, 538–39 (Tex. 2017). In Rios,

the plaintiff asserted tort claims against the UT Health Sciences Center

(the “Center”), and asserted tort claims against a number of faculty

doctors. Citing the TCA’s election-of-remedies provision, the defendants

moved to dismiss the tort claims against the doctors, who were all

employees of the Center. Id. at 532-33. Rios then amended his petition to

nonsuit the tort claims against the Center, asserting them against the

doctors only. When defendants filed their original motion to dismiss, they

were entitled to dismissal of the tort claims Rios asserted against both

them and the Center, which were all the tort claims pleaded. The Court

cited its prior holdings that, under the TCA’s election-of-remedies

provision, a plaintiff’s nonsuit following a motion to dismiss does not

operate to deny the movant a ruling on its motion. Thus, following Rios’

amended petition, defendants remained entitled to dismissal of the tort

claims asserted against the Doctors in his original petition, as requested

in defendants’ original motion to dismiss. Id. But that holding does not 32 apply here because Curadev did not “amend[] [its] pleadings to ‘omit

claims against the government in an attempt to preserve tort claims

against employees that would otherwise be subject to dismissal.’” Id. at

537.

Rather, this case is analogous to Tex. Dep’t of Aging & Disability

Services v. Cannon, 453 S.W.3d 411 (Tex. 2015). There, a plaintiff sued a

state hospital and its employees for negligence after her son died in the

hospital’s care. The defendants moved for dismissal under § 101.106(a)

and (e) of the TCA. Id. at 413. Before the motion was decided, the plaintiff

amended her petition to add claims under 42 U.S.C. § 1983 for

constitutional violations against the hospital and employees individually,

then subsequently agreed to non-suit all her original tort claims. With

only Section 1983 claims remaining, the trial court denied the

Department’s plea to the jurisdiction and denied the motions to dismiss

the Employees. The Supreme Court affirmed, reasoning that “because

court action is required to effectuate dismissal of government employees,

nothing in subsection (e) precludes a plaintiff from amending her petition

before that dismissal in accordance with applicable procedural rules.” Id.

at 416-17. The role of the election-of-remedies provision is “to ensure that 33 tort claims within the purview of the [TCA] do not proceed against a

government employee for conduct within the scope of his

employment….But those provisions simply do not apply to claims against

the employee individually that are outside the [TCA’s] scope.” Id. at 418

(emphasis added).

Like the plaintiff in Cannon, Curadev amended its petition before

the Court ruled on Appellees’ original motion to dismiss pursuant to the

TCA. In its amended pleading, it asserted ultra vires claims against the

Professors that indisputably fall outside the TCA’s scope. The Texas

Supreme Court has expressly countenanced that approach, and

Appellees cite no contrary authorities.

Appellees describe Curadev’s decision to amend its petition as

“evasive” and “artful.” Appellees’ Br. at 53. But it is Appellees who are

being evasive through their misguided reliance on the TCA’s election-of-

remedies provision. On the one hand, they argue that Curadev’s suit

against UTSW mandates dismissal of its claims against Bai and Zhang.

At the same time, they argued below that Curadev’s “allegation that Bai

and Zhang acted ultra vires means that UTSW is not a proper party to

the case.” CR.1089-92. Appellees cited no authority holding that a 34 plaintiff cannot assert ultra vires claims against a government official

while simultaneously asserting other claims against the government

entity, and these arguments do not deprive the trial court of jurisdiction.

After all, TCA Section 101.106 is meant to provide an “election of

remedies.” But Appellees’ construction would eliminate any avenue to

relief. See, e.g., City of Houston v. Vallejo, 371 S.W.3d 499, 505 (Tex.

App.—Houston [1st Dist.] 2012, pet. denied) (holding TCA election-of-

remedies provision does not create “fatal-filing rule that immunizes both

the governmental unit and its employee”).

VI. CURADEV HAS ADEQUATELY PLEADED AN ULTRA VIRES CLAIM AGAINST THE PROFESSORS.

Given the futility of their TCA arguments, Appellees finally argue

that Curadev simply “has not plausibly alleged any ultra vires action

anyway.” Appellees’ Br. at 60. This too lacks merit.

Under the ultra vires doctrine, Texas has long recognized an

exception to immunity for suits brought against state officials, on the

ground that those officials have acted outside of their statutory authority.

See, e.g., City of El Paso v. Heinrich, 284 S.W.3d 366, 371-73 (Tex. 2009);

Cobb v. Harrington, 190 S.W.2d 709, 712 (Tex. 1945). Thus, the doctrine

35 of sovereign immunity does not apply to claims for injunctive relief

seeking to force governmental officials to follow the law or to quit acting

outside the scope of their authority. Heinrich, 284 S.W.3d at 371;

Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991);

Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972). To fall within this ultra

vires exception, “a suit must not complain of a government officer’s

exercise of discretion, but rather must allege, and ultimately prove, that

the officer acted without legal authority or failed to perform a purely

ministerial act.” Heinrich, 284 S.W.3d at 372.

Appellees impliedly argued that Appellees Bai and Zhang “got it

wrong” within their authority, but do not go as far as to admit that their

actions were authorized. Appellees’ Br. At 62; CR.1088. Nor did Appellees

offer any cognizable boundary for the trial court to evaluate whether the

Professors’ actions were “erroneous decisions” that were within their

authority. To the contrary, Appellees admitted that “no state entity

explicitly authorizes its employees to violate the law,” but provided no

comment as to what UTSW implicitly authorized its employees to do.

CR.1088. Appellees do not and cannot plausibly argue that a government

officer’s tortious conduct for personal gain (which is unlawful by its very 36 nature) somehow constitutes “an exercise of discretion” within their

lawful scope of authority. Heinrich, 284 S.W.3d at 372.

To assert a valid ultra vires claim, the plaintiff “must allege, and

ultimately prove, that the officer acted without legal authority or failed

to perform a purely ministerial act.” Heinrich, 284 S.W.3d at 372. “To

assert an ultra vires claim” based on a lack of lawful authority, claimants

must “plead and prove two elements: ‘(1) authority giving the official

some (but not absolute) discretion to act and (2) conduct outside of that

authority.’” Pidgeon v. Turner, 625 S.W.3d 583, 600 (Tex. App.—Houston

[14th Dist.] 2021, no pet.) (quoting Hall v. McRaven, 508 S.W.3d 232, 239

(Tex. 2017)).

Appellees begin by erecting a straw man. They argue that

Curadev’s claim fails under the Texas Supreme Court’s admonition that

“failing to comply with a contract does not give rise to an ultra vires

claim.” Appellees’ Br. at 61. According to Appellees, “Curadevs’

allegations fixate upon Bai and Zhang’s acts as researchers and

employees at UT Southwestern, and a central pillar of their. . . theory of

liability is a contract between Takeda and UT Southwestern.” Appellees’

Br. at 51. 37 But this mischaracterizes Curadev’s claims. Yes, in describing the

Professors’ unlawful conduct, Curadev refers to the Research Agreement.

But that is by necessity to illustrate the bounds of what was lawful. It

does not turn this into a contract claim. To the contrary, the Texas

Supreme Court has explained that, “where a statute or the constitution

requires that government contracts be made or performed in a certain

way, leaving no room for discretion, a suit alleging a government official’s

violation of that law is not barred, even though it necessarily involves a

contract.” Heinrich, 284 S.W.3d at 371. That is the case here. Not only

was Appellees’ unlawful disclosure and misappropriation proscribed by

the terms of the Research Agreement, it was also proscribed by statute.

Section 51.914(a) of the Texas Education Code provides:

In order to protect the actual or potential value, the following information is confidential and is not subject to disclosure under Chapter 552, Government Code, or otherwise….any information relating to a product, device, or process, the application or use of such product, device, or process, and any technological and scientific information (including computer programs) that is the proprietary information of a person, partnership, corporation, or federal agency that has been disclosed to an institution of higher education solely for the purposes of a written research contract or grant that contains a provision prohibiting the institution of higher education from disclosing such proprietary information to third persons or parties…. 38 Likewise, Appellees raise another red herring when they point out

that “it is not an ultra vires act for an official to make an erroneous

decision within the authority granted,” and “research and publication

clearly fall within the authority of Professors at UT Southwestern.”

Appellees’ Br. at 62-63 (citing Honors Acad., Inc. v. Tex. Educ. Agency,

555 S.W.3d 54, 68 (Tex. 2018). Again, that contradicts Curadev’s well-

pled allegations, which state that “Individual Defendants Bai and

Zhang’s conversion, misappropriation, and taking were committed

without legal authority and were not within their discretion.” It also

disregards the statutory requirement for higher education institutions to

keep such information confidential. See Tex. Educ. Code § 51.914(a)

Finally, Appellees argue that Curadev has not pled an ultra vires

claim because the amended petition includes claims for damages. But

Curadev’s petition does not seek damages in relation to its ultra vires

claims—it only seeks prospective injunctive relief. This is more than

sufficient for the pleading stage, where the Court must construe

pleadings liberally to determine whether the pleader has alleged facts

that affirmatively demonstrate the court’s jurisdiction. See, e.g., Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); 39 Bell v. City of Grand Prairie, 221 S.W.3d 317, 325 (Tex.App.-Dallas 2007,

no pet.) (holding that firefighters’ requested declaration was barred for

past statutory violation, but not for future violations).

VII. CURADEV TIMELY OBJECTED TO IMPROPER HEARING IN FRONT OF THE ASSOCIATE JUDGE.

Appellees argue that Curadev’s multiple objections to proceeding

before the associate judge were waived as untimely or insufficient to

preserve the objection. Appellees’ Br. at 64-66. Appellees cite the 10-day

deadline to object to an associate judge hearing the case. Id. at 64.

Appellees cannot dispute that Curadev timely objected to

proceeding before the Associate Judge for the original setting. Id. After

receiving notice on October 4, 2024, that the hearing would proceed

before the Associate Judge, Curadev filed its objection on October 11,

2024, within the 10-day limit. Id.; Supp.CR.81. On October 29, 2024,

Appellees amended the Hearing Notice to a new date. Supp.CR.83-84.

Curadev did not withdraw its prior objection. Because the Court had not

yet ruled on Curadev’s objection, on November 18, 2024, approximately

two weeks before the hearing, Curadev renewed its request to set the

40 hearing before the Presiding Judge and restated its objection to the

Associate Judge. Supp.CR.91.

The Associate Judge was and is without authority to decide this

dispute. Curadev is not asking this Court to remand without ruling on

the issues raised herein. But if the Court agrees with Curadev that

Appellees’ Plea to the Jurisdiction was improperly granted and returns

the case to the trial court, Curadev requests this Court order the case to

proceed before the elected judge, not the Associate Judge.

VIII. APPELLEES’ OTHER MISCELLANEOUS ATTACKS ARE MERITLESS.

Appellees purport to find two “factual discrepancies” between the

Amended Petition and Appellants’ Brief. Appellees’ Br. at 11. The two

alleged discrepancies are: 1) Curadev’s descriptions of the agonists

Curadev designed as “that were able to bind” in its brief compared to

“that likely bound” in its Amended Petition and 2) Curadev’s explanation

in its brief that it has an interest in intellectual property developed using

Curadev’s trade secrets compared to language in Appellees’ contract with

Takeda that those entities agreed to jointly share ownership in their

41 inventions. Id. Neither “discrepancy” is inconsistent or even remotely

relevant to the issues on appeal.

For the first, there is no relevant difference between “likely bound”

and “were able to bind.” At most, they represented varying degrees of

assertiveness/cautiousness regarding a now-established fact, entirely

appropriate as we moved into the appellate stage. Importantly, the

distinction is irrelevant to Curadev’s claims. Under either, Curadev’s

trade secret information was incredibly valuable.

For the second, the supposed discrepancy is between language in a

contract that Curadev was not a party to on one hand, and Curadev’s

brief on the other. They are not inconsistent. That Appellees apparently

found no other discrepancies confirms that Curadev’s briefing is

consistent with its Amended Petition and provides further support for

reversal.

PRAYER

For the foregoing reasons, the Court should reverse the trial court’s

order.

42 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 CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with Texas Rule of

Appellate Procedure 9.4(i)(2)(B) because it contains 7,496/7,500 words,

excluding the parts of the brief exempted by Texas Rule of Appellate

Procedure 9.4(i)(1).

/s/ David P. Whittlesey

David P. Whittlesey

CERTIFICATE OF SERVICE

I hereby certify that on March 31, 2025, a true and correct copy of

this document was served on the following counsel via email and/or

electronic filing:

/s/ David P. Whittlesey

David P. Whittlesey 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.

Ashley Duncum on behalf of David Whittlesey Bar No. 791920 ashley.duncum@aoshearman.com Envelope ID: 99106150 Filing Code Description: Other Brief Filing Description: 20250331 Appellants Reply Brief Status as of 4/1/2025 8:01 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Nathaniel St Clair nstclair@jw.com 3/31/2025 9:12:14 PM SENT

David Schlottman dschlottman@jw.com 3/31/2025 9:12:14 PM SENT

Olin Hebert 24097819 trey.hebert@aoshearman.com 3/31/2025 9:12:14 PM SENT

David Whittlesey 791920 david.whittlesey@aoshearman.com 3/31/2025 9:12:14 PM SENT

Jacob Fields 24115134 jacob.fields@shearman.com 3/31/2025 9:12:14 PM SENT

Hailey Oestreich hoestreich@jw.com 3/31/2025 9:12:14 PM SENT

Demi Williams dswilliams@jw.com 3/31/2025 9:12:14 PM SENT

Associated Case Party: Curadev Pharma PVT. LTD

Name BarNumber Email TimestampSubmitted Status

David P.Whittlesey david.whittlesey@aoshearman.com 3/31/2025 9:12:14 PM SENT

Jacob Fields jacob.fields@aoshearman.com 3/31/2025 9:12:14 PM SENT

Ashley CegielskiDuncum ashley.duncum@aoshearman.com 3/31/2025 9:12:14 PM SENT

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