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Draim v. Virtual Geosatellite Holdings

July 1, 2009

JOHN E. DRAIM, PLAINTIFF,
v.
VIRTUAL GEOSATELLITE HOLDINGS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

FINDINGS OF FACT, SUMMARY CONCLUSIONS OF LAW, AND MEMORANDUM OPINION

FINDINGS OF FACT

1992-1997

1. On November 1, 1992, Draim was hired as a consultant by Mobile Communications Holdings, Incorporated ("MCHI") pursuant to a written consulting agreement dated November 1, 1992. Trial Transcript ("Tr.") at 14.

2. Draim worked for MCHI as a consultant through June 30, 1997. Tr. at 16. He was paid by the hour. Tr. at 15.

3. The consulting agreement provided that Draim would receive $2,000 for each patent application filed and $10,000 for the successful issuance of a patent. Tr. at 16.

4. On July 1, 1997, Draim became a full-time employee of MCHI. Tr. at 17-18.

5. The parties never entered into a written agreement pertaining to Draim's status as an employee. Tr. at 17. They did, however, orally agree that Draim would receive a yearly salary of $72,000. Tr. at 17.

6. In addition, the parties continued to operate under two of the terms of the earlier consulting agreement: that Draim's inventions would be assigned to Virtual Geo and that Draim would be paid $2,000 for each patent application filed and $10,000 for the successful issuance of a patent. Tr. at 17.

7. At some point after Draim became a full-time employee of MCHI, the bonus for filing a patent application increased from $2,000 to $2,500, and the bonus for issuance of a patent increased from $10,000 to $12,500. Tr. at 93, 94-95.

8. There was never any discussion between the parties as to whether those obligations imposed on Draim by the written consulting agreement, particularly the obligations imposed by paragraphs 8 and 9, were to continue with the same force and effect once Draim became an employee. Tr. at 32.

Interfering Application

9. In February 2000, while still employed by Dr. Castiel's company, Draim and Dr. Castiel jointly filed a provisional patent for the 168 slot application.

10. Like all the patents Draim worked on while employed by the Castiel companies, the patent application was assigned pursuant to the agreement between Castiel and Draim to Castiel's company, Virtual Geo. Tr. at 38.

11. After Draim's resignation from Castiel's companies, he went to work for an entity called Satellite Resources of America ("SRA") (formerly VGS). Tr. at 34.

12. Virtual Geo and SRA were competitors to the extent of developing and using virtual geosynchronous stationary orbital technology. Tr. at 43.

13. A purported merger between Virtual Geo and VGS was undone by the Delaware Chancery Court. Tr. at 34.

14. In October 2000, after the merger was undone and Draim was working for SRA, he was directed by a fellow SRA employee to file a patent on the 168 patent for the purpose of creating an interference with the Virtual Geo patent. Tr. at 39.

15. In a letter to SRA's patent counsel, Draim stated that he had created a portion of the interfering patent application and that "most of the rest of the write-up [was] just extraneous stuff drawn from the prior Virtual Geo patents." Tr. at 40-41.

16. Therefore, in November 2000, Draim processed and filed as sole inventor a patent that he had assigned to SRA that he intended to interfere with the patent that he and Dr. Castiel had co-invented when he was working for Castiel's companies.

Tr. at 42.

17. The "extraneous stuff" to which Draim referred in his letter to counsel was drawn from prior Virtual Geo patents that were already in the public domain. Tr. at 50, 58. 18. A patent applicant has one year from the filing of a provisional application to the filing of a final application. Tr. at 59.

19. If two applications are interfering with each other, the United States Patent & Trademark Office must decide who actually owns the ...


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