Chapter 93A’s Increasing Role in IP Litigation in Massachusetts
Chapter 93A, with its low and vague standards of liability and powerful remedies of multiple damages and attorneys, is playing an increasingly central role in intellectual property disputes in Massachusetts.
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CHAPTER 93A’S INCREASING ROLE IN
IP LITIGATION IN MASSACHUSETTS
Chapter 93A, with its low and vague standards of liability and powerful
remedies of multiple damages and attorneys, is playing an increasingly
central role in intellectual property disputes in Massachusetts.
On February 16, 2016 a Judge of the United States District Court for the
District of Massachusetts decided to let proceed the Chapter 93A claim
of a former Harvard chemistry graduate student, Mark Charest, for a
fair share of the patent royalties from a novel and valuable method for
creating tetracycline antibiotics. Mr. Charest, who went on to earn his
chemistry doctorate, brought numerous claims against Harvard and
Harvard professor Dr. Andrew Myers. These claims included breach of
contract, fraud in allocation of royalties, tortious interference with
contract, breach of fiduciary duty, promissory estoppel, and violation of
Massachusetts General Law Chapter 93A. However, the only two claims
the court let proceed were the breach of contract and violation of
Chapter 93A claims. All other claims were dismissed.
Dr. Charest alleged as part of the case that before he enrolled at
Harvard, Dr. Myers had been unable to work out a solution for creating
new synthetic tetracyclines. Dr. Myers told Dr. Charest that if they
could succeed in doing so, “they could make a billion dollars.”
Dr. Charest’s claim under Chapter 93A was that Harvard refused to pay
him royalties for his role in developing the patented method unless he
agreed to certain conditions. These conditions included him signing a
release accepting Harvard’s allocation decision and absolving the
university and Dr. Myers from any liability for their conduct. The court
held that if such conduct were ultimately proven, it could give rise to a
judgment against Harvard and Dr. Myers under Chapter 93A.
On January 22, 2016, Massachusetts Attorney General Maura Healy
invoked Chapter 93A in possibly seeking to bring a claim against
pharmaceutical company Gilead Sciences. In a letter to Gilead she
alleged the company was charging excessive prices for its highly-
efficacious antiretroviral drugs, namely Sovaldi and Harvoni, which are
used to treat Hepatitis C virus. Gilead charges $84,000 and $94,500,
respectively, for a course of treatment for these drugs. The Attorney
General did not invoke authority to regulate the price of the drugs other
than Massachusetts Chapter 93A.
ABOUT THE AUTHOR:
Michael Gilleran is a partner in the
Business Litigation and Intellectual
Property Litigation groups at Burns &
He has written articles on patent, trade
secret and trademark litigation which
have appeared in such publications as
IP Law 360, Intellectual Property Today,
and Today’s General Counsel.
Michael has also given presentations on
the “Federal Circuit Test for Patent Non-
Obviousness” before the Boston Patent
Law Association and many other
intellectual property groups.
FOR MORE INFORMATION:
Michael C. Gilleran
Partner, Business & IP Litigation
To learn more about our Business
Litigation practice, visit burnslev.com.
BURNSLEV.COM l 617.345.3000 l MASSACHUSETTS l NEW YORK l RHODE ISLAND
ABOUT BURNS & LEVINSON:
Burns & Levinson is a Boston-based, full service law firm with more than 125 attorneys in Massachusetts, New York and Rhode Island. The
firm has grown steadily and strategically throughout the years, and has become a premier law firm with regional, national and international
clientele. Core areas of practice are Business Law, Business Litigation, Intellectual Property, Private Client Legal Services and Real Estate.
For more information, visit burnslev.com.
Boston (HQ) l Andover l Hingham l New York l Providence l Waltham
MA: 617.345.3000 NY: 212.231.2237 RI: 401.831.8330
BURNS & LEVINSON
There have been other intellectual property cases,
aside from Charest v. Harvard, et al, decided over the
last six months in Massachusetts U.S. District Court in
which 93A claims were brought. Chapter 93A played
an important or even decisive role in many of these
cases as its remedies are more powerful than those
under federal IP law.
At Burns & Levinson, we track all court decisions in
Massachusetts on IP matters, including those involving
93A claims. One of our attorneys authored The Law of
Chapter 93A, published by the largest legal publisher.
Our attorneys have made presentations on whether
drug prices can violate Massachusetts Chapter 93A
before leading pharma and biotech investors, and their
opinions have also been reported in articles in the
Boston Globe and Modern Healthcare.
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