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UNXL "Smoking Gun" Did Not Iinjure Anyone

|Includes: Uni-Pixel, Inc. (UNXL)

In his Instablog Post here on May 8, titled "CIT v UniPixel: The Smoking Gun!" Ivan Jiminez, a persistent basher of Uni-Pixel, reveals a woeful ignorance of the law as it is applied in the United States and England.

Mr. Jiminez begins by stating that "This case is about a non-disclosure agreement, not about UniBoss or UniPixel's current process. CIT presented evidence of Uni-Pixel's breach of its agreement." Once he has embarked on that route, he is dead in the water, as I will show.

The thrust of his argument is that, "In its patent request Uni-Pixel disclosed multiple of CIT's core technologies," which he goes on to enumerate.

He concludes his screed with: "The fact that Uni-Pixel is or is not currently using the technologies is irrelevant. The fact is that UniPixel disclosed those core technologies in a patent request and that's the smoking gun."

The fatal flaw in his argument is that the discharge of that smoking gun never injured anyone.

Even if we give Mr. Jiminez the benefit of the doubt and assume that every fact he states is true, his argument is not worth a bucket of warm spit. Because this self-described "aircraft mechanic by trade" clearly does not know squat about how the law operates.

It is a classic axiom of the law, drilled into the skulls of every first-year law student for the past several hundred years, that "A tort or a breach, in the air, does not lie." What this basic legal tenet means is that unless the alleged tort or breach results in damage to the plaintiff, it is not actionable; it fails to state a claim upon which a court can grant relief; it is legally defective and readily dismissible.

In torts, the classic example is the miscreant who throws a brick off the roof onto a crowded street (akin to the actions of many of the vociferously nasty shorts on the UNXL message boards). He is certainly a bad boy, and not the kind of chap you'd want to marry your sister, but unless his brick actually hits and injures someone, or causes harm to someone in its impact zone, it is not an actionable event. A tort in the air simply does not lie.

Similarly, in contract law, the over-riding principle is that the breach of the contract is only the first step in the prima facie complaint; unless the plaintiff can credibly plead (and later prove) some monetary damage resulting from the breach, his complaint fails to state a claim upon which relief can be granted and the action can be dismissed.

In the CIT case, even if UniPixel did disclose some information it learned during the term of, and as a result of, the non-disclosure agreement by which it had consented to be bound, there is no damage resulting from said breach, and consequently no legally cognizable claim by CIT.

There is no damage, in the first instance, because most of the information UNXL is alleged to have disclosed was fully available to the entire world in the patent applications filed by CIT itself. CIT can not sue UNXL for disclosing what CIT had already disclosed. Moreover, and of crucial and dispositive consequence, there is no damage resulting to CIT from the alleged disclosure because CIT was not shot, or even grazed, by the smoking gun. No one in the world who heard or read what Uni-Pixel disclosed in its own patent request acted upon that information to the detriment of CIT. Neither Microsoft, nor Intel, nor Walt Disney, nor HerbaLife, or any other entity in the world, is alleged to have taken that information and used it to make a product or process that harmed CIT or competed with it.

In the Western world, our entire concept of contractual jurisprudence is based, not on punishing or imposing a penalty on an alleged offender, but on providing compensatory relief, in the form of monetary damages, to the aggrieved party. Therefore, even if Uni-Pixel did disclose some information it learned during the NDA term, there is no legal punishment for doing so in the absence of damage caused by that disclosure. Accordingly, Mr. Jiminez's argument falls of its own weight

Since I have picked on Mr. Jiminez for lacking legal credentials, let me briefly state mine. I hold a Doctor of Laws degree from the NYU School of Law, one of the top five law school in the country, and I was, until I retired three years ago, a member in good standing of the bar of the State of New York; the federal district courts for the Eastern and Southern Districts of New York; the United States Courts of Appeals for the First and the Second Circuits, and the Federal Circuit,the special court handling cases involving intellectual property; and the Supreme Court of the Unite States. Among the leading cases on which I worked is Universal Pictures v. Sony, in which I was part of the Sony legal team, winning a landmark case that allowed the Betamax (and its later incarnations in the VCR and the DVD player) to be sold in the U.S. against the misguided attempt by the motion picture companies to prohibit their sale. In 32 years of practicing litigation, I never lost a jury trial and, by God, I would not lose this case, because CIT is not able to prove, by a preponderance of the evidence, a clear connection between any actions of Uni-Pixel and CIT sustaining damages.

I respectfully submit that Mr. Jiminez cease trying to offer legal opinions, for which he is totally untrained and recklessly incompetent, and stick to repairing landing struts.

Disclosure: I am long UNXL.