JOHN E. DRAIM, Plaintiff ,

v. VIRTUA L GEOSATEL LITE HOLDINGS, INC., et al., Defendants.

UNITED STATE S DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 01-2690 (JM F)

FINDINGS OF FACT , SUMMARY C ONCLUSIONS OF LA W,

AND MEMORAN DUM OPINION

FINDINGS OF FACT 1992-1997 1. On Novem

ber 1, 1992, Draim was hired as a consul tant by Mobil e Communications Holdings, Incorporated (“ MCHI”) pursuant t o a written consulting a greement dated November 1, 1992. Trial Transcr ipt (“Tr.” ) at 14. 2. Draim worked for MCHI as a consultant thr ough June 30, 1997. Tr. at 16. He was paid by the hour. Tr . at 15. 3. The consulting a greement provided thatDraim would receive $2,000 for each patent appl ication fil ed and $10,000 for the succes sful issuance of a pate nt. Tr. at 16. 4. On July 1, 1997, Draim becam e a full-ti me em ployee of MCHI. Tr. at 17-18. 5. The parties never enter ed into a writ ten agreement perta ining to Drai m’s status as an employee. Tr. at 17. They did, however, ora lly agree that Draim would receivea yearly sa lary of $72,000. Tr. at 17.

6. In additi on, the parti es continued t o operate undertwo of the terms of the earlier consulting a greement: that Drai m’s inventions would be assi gned to Virtual Geo and that Drai m w ould be paid $2,000 for each pa tent appli cation filed a nd $10,000 for the successful i ssuance of a patent . Tr. at 17. 7. At some point after Draim becam e a full-ti me em ployee of MCHI, the bonus for filing a patentapplicat ion increa sed from $2,000 to $2,500, and the bonus for issuance of a pate nt increa sed from $10,000 to $12,500. Tr. at 93, 94-95. 8. There was never any di scussion bet ween the parti es as to whetherthose obligati ons imposed on Draim by the written consulti ng agreement, particul arly the obligat ions imposed by paragraphs 8 and 9, wer e to continue with the same force and effect once Draim became an em ployee. Tr. at 32. Interferi ng Application 9. In February 2000, whil e still employed by Dr. Castiel’s company, Draim and Dr. Castiel j ointly filed aprovisional patent for the 168 s lot appli cation. 10. Like all t he patents Dra im worked on while em ployed by the Casti el companies, the patentapplicat ion was assigned pur suant to the agreement between Castiel and Draim to Castiel’s c ompany, V irtual Geo. Tr. at 38. 11. After Draim’s resignati on from Castiel’ s companies, he went to work for an entit y called Sat ellit e Resources of America (“SRA”) (formerly VGS). Tr. at 34. 12. Virtual Geo and SRA were competitors t o the extentof developing and using virtual geosynchronous st ationary or bital t echnology. Tr. at 43. 13. A purported merger between Virt ual Geo and VGS was undone by the Delaware Chancery Court. Tr. at34. 14. In October 2000, afterthe merger was undone and Draim was working for SRA, he was direct ed by a fellow SRA em ployee to file a patent on the 168 patent for

2the purpose of crea ting an int erference with t he Virtual Geo pat ent. Tr. at 39.

15. In a lett er to SRA’s patentcounsel, Draim stated t hat he had cre ated a port ion of the inter fering patent applicati on and that “most of the rest of the wri te-up [was] just extr aneous stuff drawn from the prior Virtual Geo pat ents.” Tr. at40-41. 16. Therefore, in November 2000, Draim processed and filed as sol e inventor a patent that he had as signed to SRA that he i ntended to int erfere with the patent tha t he and Dr. Castiel ha d co-invente d when he was working for Castiel’ s companies. Tr. at 42. 17. The “extraneous stuff” to which Draim referred in his l etter t o counsel was drawn from prior Virt ual Geo patents that were al ready in the public domain. Tr. at 50, 58. 18. A patent appli cant has one yea r from the filing of a provisional appl ication t o the filing of a final applic ation. Tr. at59. 19. If two applicati ons are int erfering with ea ch other, the United States Patent & Trademark Off

ice must decide who actual ly owns the technol ogy described i n the patent. Tr. at60. 20. SRA, Draim ’s new employer, was required t o abandon its i nterfering pat ent applicat ion because of the findings and orders of the Dela ware Chancery Court when it undid the purported merger. Tr. at 61. 21. Under that Court’ s order, Casti el’s companies got the 168 slot pate nt and Castiel removed Draim ’s name from it. Tr. at 61. Computer Theft 22. Draim had no Virtual Geo proprie tary information on his computer at home. Tr. at 51-52. 23. A wom an named Ms. Lincoln testi fied in a deposit ion that she took a laptop, software, giveaways for a conferenc e in Geneva, hard dr ives, financial files, and

3marketing presentat ions from Virtual Geo and that she t ook these materials to VGA. Tr. at 100. 24. Ellipso, a Cast iel company, bought STK software for $48,000 and loaded it on t he stolen computer. Tr. at 101. 25. Draim was aware that a computer that was r eportedly t aken was subsequentl y returned t o Dr. Castiel. Tr. a t 54.

Assignment of 168 Slot Informati on to SRA 26. In a marketing document created afterDraim had left the employ of D r. Castiel ’s companies, SRA claim ed that itowned the 168 patent t hat had been joi ntly filed by Castiel and Dra im in February of 2000. Tr. at 45-46. 27. Draim had no knowledge of the page of the document where that repre sentati on was made. Tr. at 46. He inputted material aboutCobra technology, i nvented after he had left Dr. Castie l’s employ, into this document. Tr. at 47. 28. In drafting tha t material, Draim used a publishe d study that ha d been

comm issioned and pa id for by one of Dr. Castiel’s companies. Tr. at 50.

Failure to Coopera te with Patent Counsel 29. After he left Dr. Castiel ’s employ, Draim did not cooperate with Dr. Cast iel’s patent counse l in the pr osecution of cert ain patent s in which Draim and Dr. Castiel were inventors. Tr . at 99.

SUMMARY C ONCLUSIONS OF LA W 30. Draim and Dr. Castiel never ent ered into a written agr eement pertaining t o Draim’s em

ployment after Draim ceased to be a consult ant and became an employee. 31. Their minds never met on any of the terms of such an agreement, but they had an oral mutual understa nding as to Drai m’s salary and bonuses. 32. Once the consult ing agreement ended, Draim became an em ployee at wil l. In

4such an employm ent rela tionship, nei ther part y is deemed to have entere d into a covenant of good faith and fair dea ling. 33. As an employee and an agent, Draim nevertheles s owed his employer a duty of loyalty. 34. While employed by Dr. Castiel’ s companies, Draim never engaged in conduct that viol ated any such duty. 35. Draim and Dr. Castiel never r eached an agre ement as to any aspect of Draim’s behavior afterthe end of their r elations hip. 36. Specifically, t he partie s never agre ed that the provisions of the 1992 c onsulting agreement pertaini ng to preser ving trade s ecrets a nd avoiding conflict ing activit ies would conti nue to operat e after Draim left Dr. Castiel’ s employ. 37. Under Distric t of Colum bia law, and in the absence of a contr act to the contrary, Draim was free to engage in competing activi ties once he left Dr. Castiel ’s employ. 38. Districtof Colum bia law is si lent as t o whether an employee at will who has resigned i s obliged to pr eserve his form er employer’s tra de secret s inviolat e. 39. Assuming he is, there was no evidenc e whatsoever t hat Draim breached the confidentiali ty of any information he learned duri ng his employm ent in his pos temploym ent acti vities a s an employee of Dr. Castiel’s competitor. 40. Draim did not steal a computer from Dr. Castiel’s company nor did he everuse any software on such a st olen computer. 41. Draim did not m ake nor cause t o be made any false statement about the ownership of the 168 slotapplicat ion. 42. Draim used a published study and nota trade se cret in t he one instanc e claimed by Dr. Castiel t o involve the us e of a trade secr et. 43. While Draim, having left Dr. Casti el’s employ, purposefully filed t he interferi ng

5applicat ion descri bed above and failed t o cooperate wit h patent counse l, his actions and de relict ion did not viol ate any contr actual dut y he had to Dr. Castie l that survi ved his resi gnation. 44. Assuming, however, that they did, the re is no evi dence that e ither hi s conduct as to the int erfering appli cation or hi s failure to c ooperate with patent counse l was a material breach of any cont ractual or agency duty Dr. Cast iel could c laim. 45. Draim is entitled t o the compensation he clai ms. MEMORANDUM OPINION This case is before me f

or all pur poses. Currentl y pending and ready for r esolution a re the issues set forth in t he Court of Appeals’ deci sion of April 8, 2008. The Remand The Court of Appeals has remanded this cas e to me to consider the c laim by Dr. Castiel that Draim breached the ir employm ent agreement and ther efore is not ent itled t o the compensation he seeks. Draim v. Virtual Geosat ellit e Holdings, Inc, 522 F.3d 452 (D.C. Cir. 2008). The 1992 Agreement At trial , Dr. Castiel t estified tha t the 1992 consul ting agree ment was not one of employm ent and thatthe only li mitations or rest ricti ons in the consul ting agree ment were the prohibiti ons on using “tr ade secret s and engaging in confli cting act ivitie s.” These provisi ons 1 2 Paragraph 9 of the consul ting agree ment states: 1 Consultant shal l treatas proprie tary any information belongi ng to Client, it s affiliated companies, or any t hird part ies, discl osed to Consultant in t he course of Consultant 's services. Consulta nt assigns and agr ees to assi gn to Client orits nominee all ri ghts in inventions orother propr ietary i nform ation concei ved by Consultant duri ng the term of this Agreement with respectto any work which Consultant per form s, and is financia lly compensated for by Client or the Corporation, underthis Agreement. In addition, t he Corporation wil l pay Consultantan amount not to exceed $2,000 as a bonus upon t he completion of successful filing for any one patent. The ac tual amount will be dete rmined in 6did not rest rict Drai m’s ability to work for anothe r company after he left defendants’

employm ent. Tr. at 106. He also conceded t hat Draim became an em ployee of his companies in July of 1997 and that ther e was no written e mploym ent agreement perta ining to any as pect of Draim’s employm ent. Id. Accordi ng to Dr. Castiel , creati ng such an agreement “fell bet ween the cracks ,” although he and Drai m m ay have intende d to have such an agr eement. Id. Thus, Dr. Castiel conceded thatthe 1992 consult ing agreement ended when Draim went from being a consult ant to being an employee and that a wri tten agre ement as to Draim’s em ployment never replace d it. Draim agreed. See Tr. at 107 (when consul ting agree ment ended on June 30, 1997 and he became an em

ployee on July 1, 1997, Drai m and D r. Castiel never enter ed into a writ ten agreement pertaini ng to his employment from that pointon). In the findings of fact thataccompany this opinion, I have therefore concl uded that the 1992 written cons ulting agr eement that containe d provisions obl iging Draim to preserve the

inverse pr oportion to t he number of co-inventors lis ted in the patent appl ication( s). If Consultant i s the sole i nventor, the full $2,000 will be paid. Li kewise, upon success ful issuance of any one patent, the Corporation wil l pay Consultantan additiona l bonus not to exceed $10,000, the actual amount of the bonus being determined in invers e proporti on to the number of co-inventors listed i n the patent (s). Draim, 522 F.3d at 455 n.4. Paragraph 8 of the agr eement states: 2 During the ti me of this Agreement, Consultant s hall not ent er into any activi ty, employm ent, or busine ss arrange ment which conflicts with Client's inter est or Consult ant's obligations under this Agreement. In view of the sensiti ve nature of Consultant 's status, Client shal l have the opt ion of terminating this Agre ement at any time if, in its sole j udgment, a conflict of interestexists oris imm inent.... Consulta nt shall a dvise Clientof its positi on with respect t o any activi ty, employm ent, or busine ss arrange ment contemplated by Consultant whic h may be relevant to thi s Paragraph. For t his purpose Consult ant agrees to disclos e any such plans to Clie nt prior t o implem entation. Id. at 456 n.5. 7confidentiali ty of Dr. Castiel’s trade sec rets and t o refrain from engaging in conflicti ng activit ies

expired by it s own terms on June 30, 1997, and from that pointon Draim was an em ployee. He and Dr. Castiel ne ver execute d a written a greement as to that e mploym ent. In my initial opini on I state d: “the par ties cont inued to opera te under the understandi ng articul ated in the contractand neitherparty disput es this finding on appeal.” Draim v. Virtual Geosatelli te Holdings, Inc ., 433 F. Supp. 2d 99, 101 (D.D.C. 2006). That statement is incorr ect insofar as itsuggested tha t the provi sions in the 1992 consulting a greement as to protec ting tra de

secrets and refraining from conflicting act ivitie s survived t he end of the consulti ng agreement in 1997. I should have sa id more carefully: “Once the consulting a rrangement between Draim and MCHI, generated by t he November 1, 1992 agreement, ended with Draim’s becom ing a full-ti me employee, there was no writt en agreement between Draim and his now-employer as to eit her his compensation or his payment of bonuses. Instead, Dra im’s em ployer paid hi m $72,000 and Draim continued to recei ve the bonuses t hat he had rec eived under t he consulti ng agreement, albeit wit h an increas e in the si ze of the bonuses.” Additionall y, there was no te stimony that the part ies joint ly intended t o incorporat e the provisions of the 1992 c onsulting agr eement, particular ly the provi sions as to c onflicting activit ies, prese rvation of tra de secret s, and the requi rement of giving 30 days notice of a desi re to terminate the a greement, into theiroral unders tanding as t o Draim’s post-1997 employm ent. Nevertheles s, Castiel s tated tha t he belie ved that the conflict of inter est provis ion that or iginall y appeared in t he 1992 consulti ng agreement was restri cted to tha t agreement itsel f but that he 3 believed t hat the tr ade secret s provision c ontinued even afterthe termination of the 1992 consulting a greement. As Dr. Castiel put i t: “But I gues s I underst ood your question a bout the term and I understand t his [the trade secrets provision] appli es beyond the te rm. It does not mean that if the agreement is ter minated he can take our se crets and gi ve them to everybody he

Note how the provisi on pertaini ng to not enter ing into conflic ting acti vities i s limited to 3 “the time of this Agreement.” Draim, 522 F.3d at 456 n.8. 8knows.” Id.

Thus, as Dr. Castiel saw their r elations hip following the concl usion of the consult ing agreement, he and Draim had an understanding a s to Draim’s salary a nd bonuses as well a s an understandi ng that Draim would preserve t he trade se crets he l earned duri ng his entir e relati onship with Casti el’s companies, incl uding his ti me as a consultant, as an e mployee, and then in perpe tuity afterhe left Castiel ’s employ. On the other hand, Drai m argues that there was no e vidence thateither pa rty inte nded that the obl igations i mposed by the 1992 consulting agre ement would pertain to Drai m’s employm ent once thatagreement expired and he be came an em ployee. Plaint iff’s Proposed Findings of Fact and Conclusi ons of Law at 7-11. Thus, while the par ties had an e mploym ent agreement and agree d on compensation in the form of salary and bonuses, t hey were mutually silentas to any otherterms. The court must therefore look t o the law of the Distr ict of Columbia to ascertai n the nature of the employm ent contractand whether cer tain ter ms (if any) will be imputed to the part ies or implied to fulfill the employm ent agreement the parties agr eed to, incl uding the obli gation not t o divulge tr ade

secrets

. The Law of the Distri ct of Columbia Under the law of the Distr ict of Columbia, the mutual prom ise to employ and serve

creates a contractterminable at the will of eitherparty. Unless t he partie s agree to e nter int o a contractfor a fixed duration ora written c ontract for per manent em ployment, the employm ent will be rega rded as ter minable at will. Sulli van v. Heritage Found., 399 A.2d 856, 860 (D.C. 1979) applied a s the law of the Distr ict of Columbia in Shankle v. DRG Fin. Corp., 729 F. Supp. 122, 124 (D.D.C. 1989). Accord W illoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1001 (D.C. Cir. 1996) (applyi ng DC law, em ployment relationshi p is presumed to be terminable at will by eit her employer or employee), cert de nied, 520 U.S. 1199 (1997); Turnerv. Fed Ex, 539 F. Supp. 2d 404, 410 (D.D.C. 2008) (applying DC law, “[t]he presumption of at-will

9employm ent is re butted only where the parti es clear ly state an intenti on to place l imits on the

employer’s right t o terminate”); Dai sley v. Riggs Bank, 372 F. Supp. 2d 61, 67-68 (appl ying DC law, presumption in favor of an at-will employm ent is over come only by clear express ion of an intenti on to limit employer’s rightto terminate). See Wright v. Distr ict of Columbia Dept. of Em ployment Services, 560 A.2d 509, 512 (D.C. App 1989). 4 Under Distric t of Colum

bia law, every c ontract i s deemed to contain an implied covenant of good faith and fair dealing t hat means that neithe r party sha ll do anythi ng that would have the effect of destroying or inj uring the r ight of the otherparty to r eceive the fruits of the contr act. Paul v. Howard Univ., 754 A.2d 297, 310 (D.C. 2000). Unfortunately for Dr. Castiel , any claim by him that Draim had obligations thatflowed to him f rom this implied covenant founders on the equally well -settl ed principl e that a cl aim for a breach of this duty cannot be made by the parties to an employm ent contra ct that i s terminable at wil l. Id. at 310 n.28 ( “[S]uch a claim [ for breach of covenant of good faith and fair deali ng] cannot be made by an at-will employee because t here is no contra ct to provi de a basis for the covenant.”). Accor d Clampitt v, Am . Univ., 957 A.2d 23, 39 (D.C. 2008); Kerrigan v. Bri tches of Georgetowne, Inc., 705 A.2d 624, 627 (D.C. 1997); Brug v. Nat’l Coal. for the Homeless, 45 F. Supp. 2d 33, 43 (D.D.C. 1999). Thus, Dr. Castiel cannot procee d against Drai m on the basis that any of his conduct , regardle ss of its natur e, breached thi s covenant. Dr. Castiel coul d, however, proceed upon the theory tha t even in the absence of a writt en contractand even in an employment agreement that is at wil l, an employee must, as a m atter of agency law, act s olely for the bene fit of her pri ncipal in a ll matters concer ning her agency. Gros s v. Akin, Gum

p, Strauss, Hauer & Feld, 599 F. Supp. 2d 23, 32 (D.D.C. 2009) (relying on RE S T A T E M E N T (S E C O N D ) O F T H E L A W O F A G E N C Y § 387). But, Dr. Castiel conceded thatthe

Note that Drai m could not possibly have brea ched his employment agreement by 4 leaving Dr. Casti el’s employ whether or nothe gave the 30 days not ice thathe would have had to give under t he 1992 consulti ng agreement before he left because under Distri ct of Columbia law, eitherparty could t erminate the employm ent rela tionship atwill. 10obligati on of the 1992 agreement not to engage i n conflicting ac tiviti es did not sur vive the te rm

of that agreement. This would mean that (1) dur ing the ter m of the consult ing agreement, 1992- 1997, Draim owed Dr. Castiel the contr actual dut ies defined in par agraphs 8 and 9 of the consulting a greement; (2) duri ng the 1997-2000 peri od, Draim owed Dr. Castiel the fiduciar y duty to act s olely in Dr. Cast iel’s be nefit in all matters concerning hi s employm ent by Dr. Castiel; and (3) Draim owed Dr. Castiel nei ther a cont ractual nor an agency, fiducia ry duty upon the termination of his employment. Moreover, conc eded or not, an employee, upon ter mination of her employm ent, may compete against her former employer. RE S T A T E M E N T (S E C O N D ) O F T H E L A W O F A G E N C Y § 396(a) (1958) (“Unless othe rwise agree d, after the te rmination of the agency, the age nt: (a) has no duty not to compete with the pr incipal” ). This i s the law of the Distr ict of Columbia. United 5 States Trave l Agency, Inc. v. World-Wide Travel Service Corp., 235 A.2d 788, 789 (D.C. 1967) (“An agent after t ermination of his employm ent, in the a bscence of an agreement to the c ontrary, may com pete with his form er princi pal . . .”). Accord Group Assoc . Plans, Inc v. Colquhoun, 466 F.2d 469, 474 (D.C. Cir. 1972) (acknowledging “ comm on law doctrine that permits an employee to compete with his former em ployer absentan express cont ractual provision t o the contra ry.”) See MercerMgmt. Consulting Inc. v. Wilde, 920 F. Supp. 219, 233 (D.D.C. 1996) (even while employed, an em

ployee may m ake arrange ments to com pete with his principal provided no unfair acts ar e comm itted orinjury done hi s principa l); Riggs I nv. Mgmt. Corp. v. Colum bia Partners, LLC, 966 F. Supp. 1250, 1265 (D.D.C. 1977) (same). Draim’s post-termination activit ies ther efore cannot ser ve as the basi s for any claim of breach of an agent’s fiducia ry duty to his pri ncipal beca use Draim went to work for a competitor and in fact competed againstDr. Castiel. While the s ame section of the RE S T A T E M E N T imposes on Draim a post-termination

In the R E S T A T E M E N T (T H I R D ) O F T H E L A W O F A G E N C Y (2006), this principl e appears as 5 Comment C to § 8.04. 11obligati on to maintain the confidenti ality of the t rade secr ets he lea rned while employed,

RE S T A T E M E N T (S E C O N D ) O F T H E L A W O F A G E N C Y § 396(b) (1958), I have found no evidence whatsoever tha t, eitherwhile employed or thereafter , Draim converted to his own use orto the use of any of Dr. Castiel’s competitor s trade se cret information. I the refore have speci fically found as a fact that he di d not breach i n that manner any fiduciary obl igation he may have had in this res pect. While itdoes not deal wit h secrecy, I must say that I am m uch more concerned about Draim’s adm itted fail ure, after he l eft Dr. Castiel’ s employ, to cooperate with pa tent counsel in perfecting the patents he ha d worked on and his purpose fully filing an int erfering appli cation. It is in my view not worthy of a man who is obviously honor able. Neverthe less, ther e is no authorit y I can find that would i mpose upon Draim a duty, express ed in the la w of the agency or

a contract ual duty thatsurvived the termination of his at- will employm ent, that would ha ve obliged him to cooperate with Dr. Castiel and not to compete againsthim. As to the latter a nd as I have justpointed out, Drai m could legitimately compete against Dr. Casti el once thei r relati onship ended if one views t he matter from the perspective of the la w of agency. As to the law of contracts, Dis trictof Colum bia law does not de rive a covena nt of good faith and fair dealing from an at-will employment and, even if it did, thatduty ended when he left Dr. Casti el’s companies. Furthermore, any contrac tual brea ch must be material as the court of appeals defined that term in this case:

If Draim engaged in conduct that c onstitut ed a material brea ch of his employm ent contra ct, then he i s not entit led to payment of bonuses under the contract . “A total bre ach may be ... by such a material failure of performance when due as to go to t he essence and frustrate substanti ally the purpose for which the contr act was agreed to by t he injured pa rty.” Keefe Co. v. Am ericabl e Int'l, Inc., 755 A.2d 469, 475 (D.C. 2000) (quoting San Carlos I rrigat ion & Drainage Dist. v. Unit ed States, 23 Cl.Ct. 276, 280 ( 1991)) (inter nal quotati on marks om itted) ; see als o 23 W I L L I S T O N O N C O N T R A C T S § 63.3 (4th ed.). Draim, 522 F.3d at 454-55. 12The only assert ion of m ateria lity as t o Draim’s conduct is thathis doing so caus ed

“confusion in the marketplac e of the ownership of the pate nts.” Defendants’ Propos ed Findings of Fact and Conclusions of Law at 8. There was, however , no evidence whatsoe ver at tr ial of any such confusion. In fact, t he statements in the trial transcr ipt cit ed in support of thi s assert ion (Tr. at 118) de al only with t he dates of cert ain patentapplicat ions. At no point di d defendants offer any evidence thatDraim’s not cooperati ng with patent c ounsel and filing t he interferi ng applicat ion caused the m any practical harm. There was no evidence of lost sales, no e vidence that potent ial buyers of the technologie s at issue were confused to defendants’ actual det riment, and no evidence of money or time that defendants had to spe nd to undo the harm that Draim’s activit ies might have caused the ir competitive posi tion. Indeed, a s to the int erfering appli cation, Dr. Castiel eve ntually se cured the 168 pat ent and Draim’s name was stricken from it. In the absenc e of any such evidence, I cannot possibl y conclude thatthere was a material breach of any contra ctual obli gation Draim had, even if I were to a ssume that Draim had such obligati ons. By the same token, I cannot find thatany breach of any duty Drai m ow ed Dr. Castiel as his former agent (assuming a former agent has any such duty) c aused Dr. Castiel such substanti al harm that I should i n justice and fairness deny Drai m the com pensation he i s otherwise due. Finally, I appreciat e that Dr. Casti el also ac cused Draim of (1) being involved i n the theft of a com puter and the propriet ary software on it ; (2) st ating in a marketing doc ument that his new employer owned the 168 slot appli cation pat ent when Draim knew the new em ployer did not and using a st udy that had been c omm issioned and pa id for by Dr. Castiel; and (3) engagi ng in a conspir acy to destr oy the entit ies owned by Dr. Castiel . I have found, however, that Dra im was not involved i n the theft of the computer and did not us e the propri etary software on i t. I also credi t Draim’s testimony that he was not a ware of the state ment about the 168 slot applicat ion in the marketing document and thathis sole cont ribution t o that document was to input the des cripti on of the Cobra technology t hat was not owned by Dr. Castie l. Finally, t he

13Court of Appeals’ remand and my second review of the trial transcr ipt and the e xhibits offered

into evidenc e gives me no reason to revi sit my earlier findi ng “that I do notfind that it i s more likely t han not that Dra im participated i n a conspirac y to destroy orsteal from the Castiel entiti es.” Findings of Fact, Conclus ions of Law and Order ¶ 16.

/S/ JOHN M. FAC CIOLA UNITED STA TES MAGISTRA TE JUDGE Dated: July 1, 2009

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