Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PACIRA PHARMACEUTICALS, INC., No. 25-3184 D.C. No. Plaintiff - Appellee, 2:21-cv-02241-CDS-NJK v. MEMORANDUM* RESEARCH DEVELOPMENT FOUNDATION, Defendant - Appellant. PACIRA PHARMACEUTICALS, INC., No. 25-5879 Plaintiff - Appellee, D.C. No. 2:21-cv-02241-CDS-NJK v. RESEARCH DEVELOPMENT FOUNDATION, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Cristina D. Silva, District Judge, Presiding Argued and Submitted September 15, 2026 Phoenix, Arizona * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: M. SMITH and TUNG, Circuit Judges, and KANE, District Judge.** Research Development Foundation (RDF) appeals a final judgment in Pacira Pharmaceutical’s favor on an issue of contract interpretation. Pacira paid royalties to RDF under protest and then sued RDF, seeking a declaratory judgment that it did not owe certain royalties related to two separate technologies, the 45L Exparel technology and the 200L Exparel technology. Following the grant of summary judgment to Pacira as to the 45L Exparel technology, the district court found for Pacira after a bench trial on the 200L Exparel technology and in its final judgment, ordered RDF to return the disputed funds to Pacira with pre-judgment interest.1 We reverse the judgment in part and remand to the district court to recalculate the pre-judgment interest RDF owes to Pacira on the 45L Exparel portion of the judgment. 1. We review a district court’s summary judgment de novo. Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). Under Nevada law, contracts are “read as a whole,” informed by the “language used” and by its context. Shoen v. Amerco, Inv., 896 P.2d 469, 474 (Nev. 1995); N. Las ** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation. 1 RDF argued in its briefing that the district court erred in striking its demand for a jury trial. Because RDF was entitled to judgment in its favor, we need not reach this issue. 2 25-3184 Vegas Infrastructure Inv. & Constr., LLC v. City of N. Las Vegas, 525 P.3d 836, 840 (Nev. 2023). When the terms of an agreement “are clear and unambiguous,” courts should not “interpret the contract any differently from [its] plain meaning.” Am. First Fed. Credit Union v. Soro, 359 P.3d 105, 108 (Nev. 2015). The terms of this contract plainly resolve the parties’ disagreement. The 2004 Amendment defines proprietary property to mean “Skye’s multivesicular liposome DepoFoam technology,” and attaches a technical definition both parties agree encompasses the 200L Exparel technology at issue. Moreover, this definition “shall include” not only the technology “defined under the 1994 Agreement,” but also “existing and future patent or proprietary rights of Skye in DepoFoam technology,” regardless of the 1994 Agreement. “Future” describes rights that will exist “in later time.” Future, The American Heritage Dictionary of the English Language 715 (4th ed. 2000). So as a matter of ordinary meaning, the phrase reaches not-yet-existent patent and proprietary rights. The 200L technology, which meets the technical definition of “DepoFoam technology,” and which did not exist in 2004, is therefore a “future patent” right. The district court’s contrary conclusion rested on a misreading of the 2004 Amendment. It reasoned that the Amendment did not expand the category of “Assigned Proprietary Property” from the 1994 Agreement. But the Amendment says that for the purposes of Pacira’s payment obligations, “the scope of all relevant 3 25-3184 terms” from the 1994 Agreement, including the definition of “Assigned Proprietary Property,” “shall be deemed to include all of the DepoFoam Technology.” So the 2004 Amendment does constructively amend the 1994 Agreement. We reject Pacira’s argument that “existing and future patent or proprietary rights” refers only to the technology that Pacira possessed in 2004. Neither the possessive “[Pacira’s]” nor the present-tense “which consists of” convey such a limitation. It is unsurprising to find a definition phrased in the present tense; temporally-unlimited definitions often do, including one in this same contract. Section 1.3 of the Amendment, defining “Future Agreements,” specifies that its definition includes all not-yet-existing agreements “that provide a license.” The possessive is no more helpful. It clarifies that the Amendment only covers Pacira’s technology, not that of RDF or a third party. The next sentence of the Amendment confirms that it reaches the “future patent or proprietary rights of [Pacira].” Two more features of the contract rule out Pacira’s interpretation. First, provisions of the 1994 Agreement provide contract-ready language to convey Pacira’s interpretation. Section 1.2. explicitly refers to “pending . . . patent application[s], . . . any divisions, continuations, and continuations-in-part based thereon,” and “patents issuing thereon during the term of this Agreement.” That language, if used in the 2004 Amendment, would have left no doubt that Pacira’s argument is correct. “When parties to the same contract use such different language 4 25-3184 to address parallel issues, . . . it is reasonable to infer that they intend this language to mean different things.” Alday v. Raytheon Co., 693 F.3d 772, 784 n.10 (9th Cir. 2012) (quoting Taracorp, Inc. v. NL Indus., Inc., 73 F.3d 738, 744 (7th Cir. 1996)). Second, any interpretation of “future . . . rights” must make sense of both “patent” and “proprietary rights.” In this contract, “patent” and “proprietary” are separated by “or,” which is “almost always [a] disjunctive,” so “the words it connects are to be given separate meanings.” Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting United States v. Woods, 571 U.S. 31, 45-46 (2013). And the use of “proprietary” as a residual term for non-patent property rights (such as trade secrets or confidential know-how) rules Pacira’s theory of “future” rights. While Pacira has an explanation for how 2004 technology could produce future “patent” rights, it has none for “proprietary rights.” Instead, it suggests that the term, as a practical matter, is an empty set. But such practicalities do not tell us what a contract means. Pacira’s appeals to the parties’ negotiating history are no more helpful. Such evidence is only relevant “to clarify ambiguous terms so long as the evidence does not contradict the terms of the written agreement.” Ringle v. Bruton, 86 P.3d 1032, 1037 (Nev. 2004) (en banc). Indeed, “[e]xtrinsic . . . evidence is not admissible to contradict or vary the terms of an unambiguous written instrument.” Frei ex rel. Litem v. Goodsell, 305 P.3d 70, 73 (Nev. 2013). 5 25-3184 Nor do we think that RDF’s interpretation is “absurd” because it would obligate Pacira to pay royalties to RDF for its own patents indefinitely. The 1994 Agreement required Pacira to pay royalties to RDF so long as it practices patents “related to” those transferred by RDF. The 2004 Amendment therefore only expands the subject matter of an already-existing, non-indefinite obligation. Royalty obligations end the second a patent expires, so the contract is only continued at Pacira’s discretion. 2. Pacira separately argues that if the contract carries this meaning, it is unenforceable as contrary to public policy or as unconscionable. Neither is true. The public policy argument stumbles because the contract does not “provide[] royalties for post-expiration use of a patent.” Kimble v. Marvel Ent., LLC, 576 U.S. 446, 459 (2015). Unconscionability fares no better; to invalidate a contract, Pacira must prove “both procedural and substantive unconscionability.” Tough Turtle Turf, LLC v. Scott, 537 P.3d 883, 885 (Nev. 2023). Both Pacira and RDF are sophisticated business entities who were aided by counsel in their contract negotiation process. The contract they produced does not entail consequences which were not “readily ascertainable” on its face. As discussed, the contract’s plain meaning obligates Pacira to pay royalties on future patent rights in technologies that qualify as DepoFoam Technology. Pacira’s obligation does not derive from “fine print or complicated, incomplete or misleading language.” D.R. 6 25-3184 Horton v. Green, 96 P.3d 1159, 1162 (Nev. 2004), overruled on other grounds by U.S. Home Corp. v. Ballesteros Tr., 415 P.3d 32 (Nev. 2018). Nor is the contract so “one sided” as to become substantively unconscionable: the mere existence of “disadvantageous terms” for one party does not make the contract unenforceable under Nevada law. Reno Club v. Young Inv. Co., 182 P.2d 1011, 1017 (Nev. 1947). We therefore reverse the judgment in part and remand with instructions to grant judgment to RDF on Pacira’s claim for royalties on the Exparel 200L process. 3. The district court erred in calculating the prejudgment interest due on the remaining amount in judgment. Because this action is one “arising out of contract,” we apply Nevada’s contract-specific prejudgment interest statute. Wilson v. Pac. Maxon, Inc., 714 P.2d 1001, 1002 (Nev. 1986); see Nev. Rev. Stat. § 99.040 (setting the rate of interest “upon all money from the time it becomes due” including “[u]pon money received to the use and benefit of another and detained without his or her consent”). The Supreme Court of Nevada has applied section 99.040 to nearly identical fact patterns, including one where “certain sums of money” were “allegedly overpaid” pursuant to a contract. Sierra Pac. Power Co. v. Nye, 389 P.2d 387, 387, 391 (Nev. 1964). Because the district court applied the wrong prejudgment interest statute, we remand to the district court to recalculate the amount in judgment. 7 25-3184 REVERSED IN PART, VACATED IN PART. 8 25-3184