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The Gillette Co. v. Provost

Superior Court of Massachusetts, Suffolk, Business Litigation Session

June 9, 2017

The Gillette Company
Craig Provost et al

          Filed June 12, 2017


          Kenneth W. Salinger, Justice.

         In prior rulings, the Court dismissed or granted partial summary judgment against all of The Gillette Company's claims. Most recently the Court decided that the remaining Defendants are entitled to summary judgment on Gillette's claims that four of its former employees helped ShaveLogic, Inc., develop a new disposable cartridge shaving razor using Gillette's confidential information. The only remaining claims to be decided are ShaveLogic's counterclaims 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.

         When the Court granted partial summary judgment in Defendants' favor on Gillette's " confidential information" claims, it did not enter separate and final judgment under Mass.R.Civ.P. 54(b) because doing so would be inconsistent with the appellate courts' strong policy against piecemeal appeals.[1] Gillette therefore has no right to appeal the Court's interlocutory decision granting partial summary judgment in Defendants' favor on what had been Gillette's remaining claims.[2]

         Gillette has now asked the Court to report its summary judgment decision for interlocutory appellate review under Mass.R.Civ.P. 64(a). The Court will DENY this request for the reasons discussed below.

          Rule 64(a) authorizes a trial court to report an interlocutory order to the appeals court for immediate review. However, " [s]uch a report should be reserved for novel and difficult issues, the appellate decision of which may expedite resolution of the case." Morrison v. Lennett., 415 Mass. 857, 859, 616 N.E.2d 92 (1993). " Interlocutory matters should be reported only where it appears that they present serious questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing." Globe Newspaper Co. v. Massachusetts Bay Transp. Auth. Ret. Bd., 412 Mass. 770, 772, 592 N.E.2d 1325 (1992), quoting John Gilbert Jr. Co. v. C.M. Fauci Co, 309 Mass. 271, 273, 34 N.E.2d 685 (1941).

         Gillette argues that the summary judgment decision in this case turned on the resolution of two unsettled questions of law that should be reviewed by the Appeals Court before ShaveLogic's counterclaims go to trial. The Court is not convinced.

         1. Third-Party Patent Disclosures

         Gillette believes that the Court erred in ruling that disclosure of a design concept by a third party in a patent establishes that the concept is not confidential. Although Gillette concedes that a third-party patent disclosure defeats any claim of confidentiality if the disclosure is well known to others, it argues that information can still be protected as confidential if it is disclosed in an obscure third-party patent that is not generally known in the relevant field.

         This issue does not warrant an interlocutory report and review for two reasons.

         To begin with, the principle that a business cannot seek to protect as confidential any information that is known by someone outside the business, even if it is not generally known in the industry, is well established under Massachusetts law. See, e.g., Augat, Inc. v. Aegis, Inc., 409 Mass. 165, 170, 565 N.E.2d 415 (1991) (sales volume " known outside the business" by several securities analysts was not confidential). For example, an employee is free to carry away his or her memory of customers' names, needs, and habits and to use that information to solicit business from those very customers. Such " remembered information" is not confidential because the information itself, as distinguished from an employer's compilation of such information into a list or database, is known to the customers and thus not kept secret by the employer. American Window Cleaning Co. v. Cohen, 343 Mass. 195, 199, 178 N.E.2d 5 (1961) (" Remembered information as to the plaintiff's prices, the frequency of service, and the specific needs and business habits of particular customers was not confidential"); accord Woolley's Laundry v. Silva, 304 Mass. 383, 391-92, 23 N.E.2d 899 (1939); May v. Angoff, 272 Mass. 317, 320, 172 N.E. 220 (1930). There is no good reason why the sharing of information with a few securities analysts as Augat, or between one customer and one service provider as in American Window would destroy any claim of confidentiality but disclosure of information in a public patent would not.

         In any case, the legal question flagged by Gillette regarding third-party patent disclosures is immaterial because Gillette concedes that the general concepts of designing razors using a front-loading engagement, a magnetic attachment, or an elastomeric pivot are not confidential to Gillette. In its prior decision, the Court noted that Gillette had made this concession during the summary judgment oral argument. It nonetheless went on to explain why the undisputed summary judgment record was consistent with Gillette's concession. The Court discussed third-party patent disclosures only as part of its explanation of why it made sense for Gillette to concede that these three general design concepts were not confidential. Those parts of the Court's decision played no other role in its analysis. More recently, during oral argument on Gillette's motion for a report under Rule 64, Gillette expressly reiterated its concession that these general design concepts are not confidential as a matter of fact. It therefore does not matter whether the Court's prior discussion of third-party patent disclosures was correct or incorrect as a matter of law.

         As the Court explained in its prior summary judgment ruling, the ShaveLogic defendants were entitled to judgment in their favor as a matter of law because Gillette could not muster any evidence that ShaveLogic used any Gillette confidential information in developing any product. That prior ruling did not turn on any novel and difficult issue of law. It turned on Gillette's inability to present any evidence to support its claims.

         Gillette reiterates its prior argument that the expert opinion of its expert witness, that misuse of Gillette confidential information gave ShaveLogic a head start in designing its razor, creates a triable jury question. That argument is still incorrect for the reasons that the Court discussed in its prior decision. Although Gillette's expert opined that Defendants must have used Gillette confidential information to design ShaveLogic's razors, he reached that conclusion based on his mistaken assumption that the general design concepts of front-loading engagements, magnetic attachments, and an elastomeric pivot or loop ...

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