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The Gillette Co. v. Provost

Superior Court of Massachusetts, Suffolk

April 18, 2017

The Gillette Company
Craig Provost et al No. 136751

          Filed April 19, 2017


          Kenneth W. Salinger, Justice of the Superior Court.

         The Gillette Company alleges that four former employees helped ShaveLogic, Inc., develop a new disposable cartridge shaving razor using Gillette's confidential information. Gillette claims that in so doing Defendants violated G.L.c. 93A, the individual defendants breached non-disclosure agreements with Gillette, and all five Defendants engaged in a civil conspiracy. It also claims that ShaveLogic's patents and patent applications should be subjected to a constructive trust in favor of Gillette. Gillette does not claim that any of the individual defendants breached a covenant not to compete with Gillette. The parties previously stipulated to the dismissal with prejudice of Gillette's trade secret claims.[1]

         ShaveLogic claims, in turn, that Gillette intentionally interfered with prospective business relations and violated c. 93A, by threatening to bring and then filing baseless legal claims in an attempt to keep ShaveLogic from entering the market for so-called wet-shaving products.

         The parties have filed cross motions for summary judgment on all remaining claims and counterclaims. The Court concludes that Defendants are entitled to summary judgment in their favor on Gillette's remaining claims because Gillette cannot prove that Defendants misused any of Gillette's confidential information or that the individual defendants breached any non-disclosure agreement. The Court also concludes that Gillette is not entitled to summary judgment on ShaveLogic's counterclaims because a reasonable factfinder could conclude that Gillette had deliberately brought baseless claims in an attempt to bully ShaveLogic out of the market. The Court will schedule a final pre-trial conference to discuss trial of ShaveLogic's counterclaims.

         1. Gillette's Claims

         Defendants are entitled to summary judgment in their favor on Gillette's remaining claims because the undisputed material facts show that Gillette has " no reasonable expectation of proving" at least one element of each of its claims. See Boazova v. Safety Ins. Co., 462 Mass. 346, 350, 968 N.E.2d 385 (2012). " A nonmoving party's failure to establish an essential element of her claim 'renders all other facts immaterial' and mandates summary judgment in favor of the moving party." Roman v. Trustees of Tufts College, 461 Mass. 707, 711, 964 N.E.2d 331 (2012), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711, 575 N.E.2d 734 (1991).

         1.1. Unfair Competition--G.L.c. 93A

         In Counts III and VIII of its amended complaint, Gillette claims that the remaining Defendants used confidential information belonging to Gillette to design competing products that ShaveLogic has patented or is seeking to patent, and that this constitutes an unfair trade practice in violation of G.L.c. 93A. The intentional misappropriation and use of trade secrets to compete against the owner of that confidential information can violate c. 93A. See Jillian's Billiard Club of America, Inc. v. Beloff Billiards, Inc., 35 Mass.App.Ct. 372, 373-75 & 377, 619 N.E.2d 635 (1993).

         Since Gillette has been unable to muster any evidence that Defendants used Gillette's confidential information to develop razors for ShaveLogic, Defendants are entitled to summary judgment on these claims. See Kourouvacilis, supra, at 715 (" If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law." (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 328, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (White, J., concurring)).

         1.1.1. Using Well Known Concepts

         Gillette's amended complaint alleges that Gillette owns, and that Defendants committed an unfair trade practice by making use of, " magnetic attachment, elastomeric pivot, and front-loading engagement design concepts."

         Gillette describes these three design concepts as follows. The concept of a " front-loading engagement design" is the idea of attaching a razor handle to a disposable shaving cartridge that contains razor blades by bringing the handle down onto the top of the cartridge. The concept of a " magnetic attachment" is the idea of using a combination of a magnetic and a mechanical engagement to keep the cartridge attached to the handle. The concept of an " elastomeric pivot" is the idea of designing a razor cartridge that can pivot and that uses an elastomeric element (i.e., a loop-like structure at least part of which is a polymer with elastic properties) to make the cartridge return to its original position.

         ShaveLogic has shown that these general concepts were already publicly known and readily understood by people outside of Gillette who design disposable cartridge razors before the individual defendants started working for ShaveLogic. Thus Gillette cannot prove that any of these concepts was confidential information. See generally J.T. Healy & Son v. James A. Murphy & Son, 357 Mass. 728, 736, 260 N.E.2d 723 (1970) (" The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret." (quoting Restatement of Torts, § 757, comment b)).

         Although Gillette vigorously contested this point in its summary judgment papers, and expressly alleged in its complaint that these concepts belonged only to Gillette, at oral argument Gillette conceded that none of these general concepts is confidential. The summary judgment record confirms that these ideas were publicly known before the individual defendants went to work for ShaveLogic.

         Gillette's claims under c. 93A therefore fail as a matter of law. Using publicly available information to compete is not an unfair trade practice. Jillian's Billiard Club, 35 Mass.App.Ct. at 375-76.
 Front-loading Engagements Are Not and Were Not Secret

         Gillette itself publicly disclosed the concept of front-loading engagements in 1985 when it began selling its Atra razors. In 1990 Gillette began selling a razor called the Sensor that also uses a front-loading engagement. Gillette's Atra and Sensor razors load from the same direction and roughly the same angle as the razor disclosed in ShaveLogic's patent. In addition, Gillette's competitor Schick has also been selling front-loading razors for years.

         Gillette argued in its summary judgment papers that its Atra and Sensor razors are materially different from ShaveLogic's designs because the Atra and Sensor cartridges attach to the razor handle at two points while the ShaveLogic cartridge attaches to its handle at a single point of contact.

         But the idea that a stable razor system could be designed using cartridges that attach to a handle at a single point has also long been disclosed publicly. Gillette's Mach 3 and Fusion products, both of which have been sold publicly for years, use single-point loading. It was therefore obvious to anyone skilled in the art that one could design a front-end loading razor that attaches to the cartridge at a single point. No confidential information from Gillette was needed to figure out that one could combine the idea of a front-loading engagement with the idea of using a single point of attachment.

         Defendants committed no unfair trade practice by using well-known design principles or obvious combinations of them. See Dynamics Research Corp. v. Analytic Sciences Corp., 9 Mass.App.Ct. 254, 267, 400 N.E.2d 1274 (1980) (concepts that would be obvious to an inertial guidance engineer were not protectable as trade secrets); Strategic Directions Grp., Inc. v. Bristol-Myers Squibb Co., 293 F.3d 1062, 1065 (8th Cir. 2002) (obvious combination of known elements not a trade secret); Julie Research Labs., Inc. v. Select Photographic Eng'g, Inc., 998 F.2d 65, 67 (2d Cir. 1993) (particular combination of design choices not a trade secret if " obvious, widely known, easy for others to discover legitimately, or disclosed" publicly by manufacturer).
 Magnetic Attachments

         The idea of using a combination of magnetic and mechanical means to attach a razor cartridge to a handle is also not secret and does not belong to Gillette. A Chinese patent published in 2009 (no. CN 101612740, or the " Jian patent") and a United States patent published in 2000 (U.S. Patent No. 6, 035, 535) both disclose razors that use a combination of magnetic and mechanical engagements. Gillette cannot claim as confidential information that was publicly disclosed in a patent. See, e.g., Atlantic Research Mktg. Sys., Inc. v. Troy, 659 F.3d 1345, 1357 (Fed.Cir. 2011) (applying Massachusetts law).

         Gillette has now conceded that the concept of using both a magnetic and a mechanical engagement is a publicly available idea or invention. It did so in a filing with the United States Patent and Trademark Office made by Gillette to challenge ShaveLogic's patent for a razor using magnetic and mechanical engagements (U.S. Patent 8, 789, 282, or the " '282 patent").[2] Gillette made that filing in March 2016, just two months after Gillette filed its amended complaint in this case.

         Whether the individual defendants knew of or relied upon the Jian patent in their work for ShaveLogic is immaterial. Gillette cannot prove that the concept of magnetic attachments was confidential if it had already been disclosed in a publicly available patent, whether or not Defendants had seen that prior patent. Gillette expressly argued to the Patent Office that the claims in ShaveLogic's '282 patent are not novel because the Jian patent had already made publicly available the idea that a shaving cartridge assembly can be mounted on a handled using a " magnetic and mechanical connection" between the two. Gillette's statement to the Patent Office that this prior art was publicly available belies its unsupported claim to the contrary in this action. And Gillette's Rule 30(b)(6) designee in this lawsuit confirmed under oath that the Jian patent discloses a means for a magnetic attachment and a mechanical attachment.
 Elastomeric Pivots

         Similarly, the idea of designing a shaving cartridge that pivots and is returned to its original position by a loop with an elastomeric element is also publicly known and therefore cannot be Gillette confidential information. A company called King of Shaves received a United State patent first published in May 2005 (U.S. Patent no. 7, 100, 284) that disclosed the possibility of using an elastomeric loop to return a pivoting shaving cartridge to its original position. In addition, Gillette itself publicly disclosed several other ways of designing a razor that uses an elastomeric loop to return a pivoting razor cartridge to its original position. It did so in a United States patent that was first published in January 2011 (U.S. Patent 8, 273, 205 B2).
 Source of Public ...

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