Judge Michael Telesca
Under their license agreement Bausch & Lomb (B&L) was to develop an intraocular lens, invented by Sarfarazi, to treat presbyopia. B&L began its development in 2003. However, after three years it concluded that the lenses provided limited improvement in presbyopia patients and carried certain safety concerns, including infection. On Feb. 7, 2007, B&L sent Sarfarazi a letter terminating their agreement under §13(b). Sarfarazi ultimately decided not to attempt to market the lens though four other companies. In addition to misappropriation of idea and other counterclaims in B&L's lawsuit seeking a declaration that it did not breach their licensing, Sarfarazi alleged B&L's breach of contract by failing to use commercially reasonable efforts to develop an intraocular lens utilizing her technology. Despite dismissing Sarfarazi's damages claim for reputational harm arising from B&L's flawed clinical trials, district court denied dismissal of her contract breach claim. Her breach claim was not related to B&L's decision to terminate the licensing agreement. Rather, it is a claim that B&L breached the terms of the contract before its termination. Thus Sarfarazi's claim did not fall within the scope of the licensing agreement's arbitration clause.