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February 19, 2005



Given the regular "Overlawyered Watch" feature where you anonymously attack a website for real and imagined errors, it's remarkable that every time I double-check an opinion you write upon, you get it wrong.

1. You get the trade secret claim precisely wrong, since, in fact, the First Circuit reversed the summary judgment finding in a lengthy discussion of the facts; the discovery rule did, in fact, "save the plaintiff"--both with the trade secret claim and, in part, the unfair trade practices claim.

2. You write 'While the Court upheld the decision of the District Court it seemed willing to entertain the idea that at some point the “upon the implication that a party has a conditionally adverse interest.”' This sentence makes no sense. If you meant to say "common-interest exception expires upon the implication...", the opinion is quite clear that the First Circuit is not "entertaining" that notion, but merely holding that the question is one of law. The Court quite explicitly rejected that proposition with respect to subject matters still under a common interest.

3. " As a matter of Massachusetts law, a third-party cannot assert that a non-disclosure was breached". One cannot breach a "non-disclosure." Perhaps you mean a non-disclosure agreement? In any event, the rule in Massachusetts law is not one specific to non-disclosure agreements, but applies to all contracts. Indeeed, it's 1L black-letter law. Restatement (2d) of Contracts § 302 (1981).

4. "The movant waited too long" is redundant with "denial of a motion to amend." It tells us nothing. The critical fact is that the movant waited until a dispositive motion for summary judgment was pending without adequate explanation for the delay.

5. Your next-to-last paragraph isn't in English; it contains the phrase 'which the all of the courts figured was an example of “conflict preemption”'. You incorrectly state that "where someone seeks compensation that was allegedly promised, federal law regarding patents [sic: "federal patent law"] doesn’t preempt state law." That's not true; it depends on the promise. There was no pre-emption here because the promise was independent of the inventorship question. If MEEI's unjust enrichment claim was a question of inventorship, rather than a question of an agreement to prosecute one patent over another, federal law would pre-empt. Univ. of Colo. Found., Inc. v. Am. Cyanamid Co., 196 F.3d 1366, 1373-74 (Fed. Cir. 1999). As the First Circuit held, "the proper inventorship of either the '473 application or the '591 application is indeed a non-negotiable question of federal law."

6. You write "a bunch of doctors suing each other"; two corporations in a contract dispute over proceeds from medical patent licensing are not "a bunch of doctors suing each other." We have no basis to conclude that all of the shareholders are doctors.

7. You write "But 'The rules of discovery therefore.'" The "But" is incorrect, as it implies that the court's finding is contrary to the principle of the common-interest rule.


If you're going to make these ad hominem arguments in support of your credibility, you can't hide behind your anonymous handle. Why stop at claiming you have "years of experience"? Why not insist you're a famous multi-millionaire scholar? Yeah, that's the ticket.

Not that the arguments would carry much weight compared to the undefended shoddy analysis.


Thanks for your comments. I will look at them and correct the post as appropriate. In fact, I really hated reading this case since I found it annoying, so maybe I will just do a big ol' block quote from you. (I prefer reading cases involving rape or murder. But, that is my preference.)

Considering that most people who read this blog had been admitted more than two years, my comments are not per se unbelieveable. If you want to post your views on the case, go ahead.

David Behar, 2L

Mr. Cotus: Excuse me. Not "reduced to that of a law student," "unjustifiably upgraded to that of a law student." The law student still has a quickly receding sight of the real world on its horizon, not being fully indoctrinated into the world of 1200 AD, where the lawyer lives, lies, and steals.


I see. You make your point quite well.

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