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Long Fish v. Nanotronics Corp.

6/9/2003

NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.


The trial court in this case granted the defendants' motions for summary adjudication. The plaintiff, Janet Long Fish, thereafter abandoned her remaining claims and judgment in favor of the defendants was entered.


Like the trial court we find Fish cannot prevail on the claims she asserts on appeal. Under the terms of the Technology Transfer Agreement which is the subject of Fish's claims, Fish was entitled to fixed royalties only on products produced by the other party to the Technology Transfer Agreement, defendant and respondent Nanotronics Corporation (Nanotronics). Fish was not entitled to fixed royalties on products produced by third parties. Thus she had no claim against either Nanotronics or defendant and respondent Patriot Scientific Corporation (Patriot), which, in a bona fide transaction, purchased the assets of Nanotronics and then brought products to market employing the technology which was the subject of the Technology Transfer Agreement.


FACTUAL BACKGROUND


Janet Long Fish is the trustee of a trust established by her son Russell Fish. Russell Fish was the co-inventor of a semi-conductor technology known as Sh-Boom. Russell Fish transferred his interest in the Sh-Boom technology to the trust and thereafter acted on behalf of the trust. Under the terms of an agreement with the other co-inventor of Sh-Boom, Charles Moore, the trust and Moore each had the right to sell or license the technology, subject to an obligation to pay royalties to the other.


In 1991 Russell Fish conducted a lengthy series of negotiations with a venture capitalist, Helmut Falk. The result of the negotiations between Russell Fish and Falk were two agreements executed in August 1991. Under the first agreement, entitled Technology Transfer Agreement, the Fish trust transferred all of its interest in the Sh-Boom technology to Nanotronics, which was wholly owned by Falk. Under the terms of the sale, the Fish trust would receive royalties on any products Nanotronics sold which employed the Sh-Boom technology. In addition to royalties on products sold by Nanotronics, the Fishes were given 25 percent of any "up-front licensing fee" Nanotronics received from a third party, between 25 percent and 50 percent of any ongoing licensing fees Nanotronics received on the technology, and an option to buy Nanotronics stock in the event it was sold or merged with another company.


The second agreement was a Development Agreement, under which the Fish trust agreed to assemble a group of engineers whose goal would be to develop and market commercial applications of the Sh-Boom technology. Under the Development Agreement, Nanotronics agreed to finance the development effort and in particular to pay the trust $10,000 a month for development work performed by Russell Fish.


Between 1991 and 1994 Nanotronics spent $1 million trying to develop products using the Fish technology. However, its efforts were not successful.


In 1994 Nanotronics sold all of its assets, which consisted almost entirely of the Sh-Boom technology, to another company, defendant and respondent Patriot. In return Nanotronics received five million shares of restricted Patriot stock and a contingent right to an additional five million shares. Under the terms of the asset sale, Patriot agreed to name Falk to its board of directors and cause him t

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