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Pellegrini v. Northeastern University

Superior Court of Massachusetts, Suffolk, Business Litigation Session

July 21, 2016

Gerald N. Pellegrini
v.
Northeastern University et al. [1] No. 134360

         Filed July 22, 2016

          MEMORANDUM OF DECISION AND ORDER ON (1) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND (2) PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          Mitchell H. Kaplan, Justice

         The plaintiff, Gerald N. Pellegrini, filed this action against the defendants, Northeastern University and Nian X. Sun, asserting the following claims: commercial disparagement (Count I), breach of contract (Count II), breach of the duty of good faith and fair dealing (Count III), fraud (Count IV), violation of Chapter 93A (Count V), and declaratory relief (Count VI). Pellegrini claims that Northeastern and Sun published false and misleading statements about the results of experimental research that he commissioned, and this diminished the value of patents on which he was the inventor and currently owns.

         The case is presently before the court on the defendants' motion for summary judgment on all counts of Pellegrini's First Amended Complaint (complaint) and Pellegrini's motion for partial summary judgment on Counts IV and V. On April 22, 2016, the court heard oral argument on the motions. Although Pellegrini was represented by counsel when he filed his complaint in September 2015, he is, and was at the time he filed his opposition to the defendants' motion and his own cross motion, acting pro se. For the following reasons, the defendants' motion for summary judgment is ALLOWED and Pellegrini's motion for partial summary judgment is DENIED .

         BACKGROUND

         The facts revealed by the summary judgment record, viewed in the light most favorable to Pellegrini, are as follows.

         Pellegrini is a self-described " independent inventor with expertise in physics and electromagnetic theory." He describes himself as a theoretician rather than an experimentalist. Pellegrini received a Bachelor of Science degree in physics from the University of Massachusetts in 1967. He has also taken graduate level classes at several universities, including Boston College, the University of Maryland, Worcester Polytechnic Institute, and Boston University, and is also self-educated in physics and electromagnetic theory. Pellegrini is not currently employed and cannot recall the last time he had a job, other than as described below.

         Northeastern University is a private, non-profit research university with its principal campus in Boston, Massachusetts. Faculty members at Northeastern regularly engage in research that is funded by public and private sources. Dr. Nian X. Sun is an associate professor of electrical and computer engineering at Northeastern. Sun earns a salary that is supported, in part, by research grants from public and private sources that are paid to Northeastern to fund research in his laboratory.

         In early 2009, Pellegrini believed that he had discovered that discrepancies in the coupling coefficients of certain unusual magnetostrictive materials could be exploited to permit harvesting of energy from the ambient temperature. As the court understands it, if Pellegrini's discovery is correct, the Second Law of Thermodynamics is invalid in that it may not apply in all circumstances. Again, as the court understands it, the Second Law of Thermodynamics generally requires that the direct and converse coupling coefficients for a certain material must always be equal. Moreover, the Second Law of Thermodynamics is expressed in various ways, including that " heat does not flow spontaneously from a colder region to a hotter region, or, equivalently, heat at a given temperature cannot be converted entirely into work." Otherwise, it would be possible to construct " a machine that could extract essentially limitless amounts of heat from its surroundings (earth, air, and sea) and convert it entirely into work . . . a perpetual motion machine of the second kind." Where the direct and converse coupling coefficients are not equal, this is known as a discrepancy in coupling coefficients or a violation of " Maxwell relations."

         A patent was issued to Pellegrini relating to his discovery in the United States in June 2011. Pellegrini's patent was for an " energy transducer and method" that describes a way to exploit discrepancies in coupling coefficients in order to harvest energy from the ambient temperature. In 2012, Pellegrini received a second patent that provides more specific language as to how certain coefficients are different from each other. A related Chinese patent issued in the summer of 2015. Pellegrini has not actually developed an experimental device that can harvest energy from the ambient environment; instead, he holds a patent on his discovery/theory.

         In 2009, Pellegrini worked with researchers at the University of Maryland to conduct energy cycling experiments on coupling coefficients. The experiments showed apparent discrepancies in certain coupling coefficients. The research was supported by a $75, 000 grant that Pellegrini obtained from Hub Lab. Hub Lab was an entity through which a group of Asian investors invested in new technologies.

         Pellegrini and his fellow researchers at the University of Maryland published a paper in the journal Smart Materials and Structures on June 7, 2011, summarizing the results of the research. It was entitled, " An Examination of Galfenol Mechanical-Magnetic Coupling Coefficients" and reported significant discrepancies in certain coupling coefficients for magnetostrictive materials, specifically galfenol. The University of Maryland paper did not expressly reference the Second Law of Thermodynamics or Pellegrini's patent or energy harvesting theory.

         Later, after Hub Lab had apparently dissolved, Pellegrini reached out to J. Barry Herring, a businessman who previously funded a patent infringement case that Pellegrini prosecuted against Texas Instruments, to support further research into coupling coefficients. In December 2010, Pellegrini and Herring formed an entity called Dove Research, LLC for the purpose of developing, licensing, and selling energy-generating technology and engaging in any related activities. As his capital contribution, Pellegrini assigned his U.S. patent rights in the energy transducer method to Dove, and Herring made a $200, 000 capital contribution. In June 2010, Herring estimated that Pellegrini's U.S. patent rights were worth $1 million, and his foreign patent rights were worth $3 million. The basis for that valuation is not apparent. To date, Dove has not generated any revenue.

         Pellegrini is a contractor or consultant for Dove. His services include working on his discovery, consulting with Herring, and litigating cases relating to his discovery. In exchange for his services, Dove paid Pellegrini a salary ranging from $60, 000 to $72, 000 per year. In July 2011, Dove assigned the U.S. patent rights back to Pellegrini, apparently for no consideration, and he presently owns these rights.

         Thereafter, Pellegrini and Herring entered into several other agreements relating to energy transducer technology. Under the agreements, Herring agreed to provide Pellegrini a stipend, which is his sole source of income. He also agreed to pay all of Pellegrini's legal fees and expenses related to this action, [2] in consideration for a partial interest in any recovery.

         In early 2010, Pellegrini identified Sun's laboratory at Northeastern as an institution that could continue research related to his discovery, as Sun was an accomplished experimentalist in the area Pellegrini wanted to pursue. Pellegrini contacted Sun and explained that he wanted to continue to investigate the discrepancies in coupling coefficients identified in the Maryland experiments. Sun told Pellegrini that he was generally aware of Pellegrini's patent and willing to collaborate with him.

         Herring and Sun signed a Memorandum of Understanding (MOU) dated June 16, 2010, which states:

This Memorandum of Understanding (MOU) covers the grant agreement between the parties:
Professor Nian Sun
Associate Professor
Electrical and Computer Engineering Department
Northeastern University
* * *
Mr. J. Barry Herring
* * *

         SCOPE OF STUDY

Dr. Nian Sun will perform six months of fundamental studies to identify and exploit recently discovered discrepancies in coupling coefficients of various magnetostrictive, magnetoelectric, and multiferroic materials and composites.

         BUDGET

Mr. J. Barry Herring will be the point of contact to provide Northeastern University with $60, 000 to fund the study.
Pellegrini is not a party to the MOU. Herring, however, assigned his rights under the MOU to Pellegrini in anticipation of the instant case. Pellegrini opines that, under the MOU, Sun undertook to do research regarding the coupling coefficients of certain materials and generate data about them, i.e., to conduct " sound science, " whatever the results might be. Although the MOU makes no reference to the publication of any research results, there was never any doubt in Pellegrini's mind that Sun intended to publish research papers. In addition to the $60, 000 paid to Northeastern in June 2010, Herring made additional payments of $60, 000 each in January 2011 and November 2011 to fund continuing research, although no additional written agreements were executed.

         In order to have access to Sun's lab, Northeastern required Pellegrini to have an affiliation with the university. To meet this condition, Pellegrini received a letter, dated July 7, 2010, from the senior associate dean for faculty and academic affairs at Northeastern, confirming an offer to Pellegrini to serve as a non-salaried visiting research associate in the department of electrical and computer engineering at Northeastern. The letter directed Pellegrini to familiarize himself with Northeastern's policies. Pellegrini skimmed the professional standards policies, but he did not review the intellectual property policy, even though he knew that Northeastern must have one. Both Pellegrini and Herring knew that Northeastern's intellectual property policy would provide that Northeastern would own the rights to any intellectual property derived from its laboratories, including any patent opportunities, and it did. Pellegrini signed the letter, accepting the appointment, and, accordingly, Northeastern's intellectual property policies.

         Pellegrini's role in the engagement was to " direct" the experiments. Dr. Jing Lou, a postdoctoral student who worked for Sun, set up the equipment, conducted the experiments, and recorded the data. Sun gave guidance to Lou and received weekly updates from him.

         The first round of experiments were undertaken between July 2010 and January 2011 and involved four magnetoelectric composite materials: PZN-PT/FeGa (iron gallium) and PZN-PT/metglas, PZT/metglas, and PZT/2metglas (collectively, " metglas"). The experiments measured and compared coupling coefficients in the four magnetoelectric composite materials under different circumstances. By mid-January 2011, Pellegrini and Lou believed that they had obtained valid results. They showed an equivalence (no discrepancy) in the coupling coefficients for an iron gallium composite and apparent discrepancies in certain low magnetic field regions for a composite containing metglas. In Sun's opinion, where there are discrepancies at low magnetic fields, the cause is usually a phenomenon called hysteresis, but he conceded that the discrepancies could demonstrate a violation of the second law of thermodynamics, if they were not shown to be the result of other causes through further study.

         Eventually, Pellegrini came to believe that a material called galfenol would be the best candidate for further experimentation and he would need supporting data relating to galfenol to attract investment and ultimately reach his goal of creating a self-sustainer. In the fall of 2011, Pellegrini told Herring that he wanted to conduct additional research in this area.

         With Herring's second payment, Sun's lab conducted a second set of experiments involving galfenol between October 2011 and April 2012. This second set of experiments required the design and fabrication of a magnetostrictive oscillator to test a laminated, stress-annealed galfenol rod. As late as March 21, 2012, Lou and Pellegrini were still developing the testing mechanism and rechecking the calibrations. On April 2, 2012, Lou sent Pellegrini the data from the second round of experiments. Based on his review of this data, Pellegrini identified coupling coefficient discrepancies as high as seventy-nine percent in some regions. Pellegrini believes that this data demonstrated that an energy transducer is achievable. Sun, however, believed that the data was not ready for publication because they had only gone through the first of several necessary runs of data collection. In April 2012, Sun stated that he was not ready to conclude that the results demonstrated a violation of the Second Law of Thermodynamics.

         Throughout their collaboration, Sun made it clear to Pellegrini that he was willing to participate in the research, but he was not ready to adopt and champion Pellegrini's theory/discovery. Sun frequently told Pellegrini that he would be objective and let the data speak for itself. In June 2012, Lou left Northeastern to take a job in California.

         Throughout this period, the parties worked on an article related to the research. In October 2010, Pellegrini, Herring, Lou, and, Sun first discussed an article describing the results of the first round of experiments. Pellegrini wanted to find a respected physicist to serve as a coauthor in order to give the article more credibility. Lou prepared the first draft of the article, which he sent to Sun on April 14, 2011. Lou and Sun made further revisions before they sent a draft to Pellegrini in early July 2011; it was entitled, " Direct and Converse Magnetoelectric Coupling Coefficients in Multiferroics: Are They Equal to Each Other?" The draft article discussed the equivalence between direct and converse coupling coefficients in iron gallium, explaining that even though the sample showed differences in coupling coefficients of up to five percent in low magnetic field regions, those discrepancies were due to identified causes and the experiments confirmed equivalence. The draft article made no reference to the metglas experiments. Pellegrini believed that Sun and Lou had selectively omitted the results from the metglas samples that showed much greater discrepancies, which were equally complete and ready for publication. He pointed this out in an e-mail to Lou, but Lou responded that adding the metglas results would involve too much data and readers would get lost. Moreover, Lou and Sun believed that the metglas data was preliminary and should not be published.

         As a compromise, Lou suggested that they add the following comment: " Other materials have also been investigated with as high as 20 percent discrepancy at low magnetic field region that is due to the domain behavior caused irreversible process. A new method that can characterize the origin of such discrepancy is being developed and will be reported later." Pellegrini countered that it was premature to say what caused the discrepancy was and that the article should say that more ...


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