Full opinion text
OPINION AND ORDER GRANTING AND DENYING SUMMARY JUDGMENTS HELLERSTEIN, District Judge. This is a case about stents, the splint-like, tubular devices that are inserted into weakened or occluded veins or arteries of the human body to form a strengthening mesh with their interior walls, to prevent their collapse, and to enable blood to flow. The protagonists are two biotechnology companies and some of their principals and executives. The plaintiff, Medinol, Ltd. (“Medinol”), is an Israeli company engaged primarily in research and development, and manufacturing, of stents. The defendant, Boston Scientific Corporation (“Boston Scientific” or “BSC”), is a Delaware corporation that does business in many states and nations, directly and through subsidiaries. Defendant is a leading distributor of stents, some of its own make, and some manufactured by others. The individual parties are Boston Scientific’s Chairman and former Chief Executive Officer, Peter M. Nicholas, and its Chief Financial Officer, Lawrence C. Best, both of whom are defendants, and Medinol’s Chief Executive Officer, Dr. Judith Richter, and its Chairman and Chief Technology Officer, Dr. Jacob Richter, both of whom are counterclaim and third-party defendants. On October 25, 1995, Medinol and Boston Scientific entered into a close and extensive contractual relationship, relating to research, development, manufacturing and distribution of stents, the licensing of intellectual property, and the contribution of capital by BSC into Medinol. The relationship was to last ten years, or longer with renewals. However, following a number of years of apparent fulfillment, the relationship soured into recriminations of treachery and breach. On April 5, 2001, Medinol filed this lawsuit and, soon after, Boston Scientific filed counterclaims and third-party complaints. The charges and counter-charges of the parties raise complex issues of breach of contract, misappropriation of trade secrets, and many other statutory and common law wrongs. After extensive discovery in the United States, the United Kingdom and Israel, Medinol, BSC, Nicholas and Best have moved for summary judgment. This opinion discusses the contractual rights and obligations of the parties, and the merits of their respective charges and counter-charges. I hold that Medinol’s claims against the individual defendants Best and Nicholas are insufficient in law, and I order them dismissed. Many of Medinol’s and Boston Scientific’s claims against each other are also dismissed. A core number, largely involving their disputed contentions as to their contractual relations, remain for trial. The procedures that the parties are required to follow for an early trial are also set out in the concluding paragraphs of this decision. I. Background A. Facts Plaintiff Medinol is a privately-held Israeli biotechnology company specializing in stent development. On October 25, 1995, Medinol entered into three agreements with defendant BSC, an American leader in the field of medical technology: a Supply Agreement, a Transaction Agreement, and a Stockholder Agreement. The parties contemplated a wide-ranging partnership which, they hoped, would combine their expertise and resources to create improved stent technology and increased sales of stents. Under the Supply Agreement, described below in more detail, Medinol agreed to develop and manufacture stents, and Boston Scientific agreed to market and distribute them. The Supply Agreement was structured as a requirements contract, obligating Medinol to sell to BSC as many stents as BSC required for resale. Under the Transaction and Stockholder Agreements, Boston Scientific was to invest some $70 million in Medinol, in two installments, in exchange for a share of ownership and a role in the management of Medinol. The Stockholder Agreement was also signed by Dr. Judith Richter, Medi-nol’s Chief Executive Officer, and Dr. Jacob Richter, Medinol’s Chairman and Chief Technology Officer (collectively, the “Richters”). The Richters co-founded Medinol and together owned approximately two-thirds of its stock, either directly or through corporate holdings. Boston Scientific purchased its first installment of Medinol stock for $40 million on the day it signed the Transaction Agreement, October 25, 1995. It purchased its second installment of Medinol stock for $20.5 million on February 26, 1997, buying out the interest of shareholder Benad Goldwasser, and in the process settling claims that Goldwasser had asserted against Medinol and the Richters. On March 3, 1997, BSC executed a Shareholder Release and Indemnity Letter, which “irrevocably, unconditionally and forever releasefd]” Medinol, the Richters, and others from all claims arising before that date. The relationship between the parties proceeded smoothly for several years. Medinol had developed, and BSC was marketing, Medinol’s “NIR” stent, and the parties collaborated on several stents that improved on the NIR. BSC had developed its own Radius stent prior to entering into its contracts with Medinol, but it agreed in the Supply Agreement to “concentrate” its business on marketing NIR stents, and it apparently complied with this obligation. The NIR achieved several successes; it began to be sold in the European market in 1996, and in 1998 the United States Food and Drug Administration indicated that it would approve the NIR stent and delivery system without inspecting Medi-nol’s production facilities. However, BSC also expressed its unhappiness regarding Medinol’s production levels, quality, setbacks of dates set in the Supply Agreement and other matters, leading to squabbles between the parties. Nevertheless, the collaboration envisioned by the parties appeared to continue. Both parties engaged in research and development for next-generation improvements of the NIR stent. Medinol developed the NIR Conformer, the NIR pRINce, the NIRSIDE, the NIRenal/NIR Peripheral, and the NIRflex. The NIR-flex was considered the NIR’s most promising successor. It was designed as an improvement of the NIR that was more flexible and better structured, so that when it expanded in diameter it would not contract in length. Medinol allegedly began work on the NIRflex in April 1998, and it finalized its design and presented it to BSC in June 1999. BSC’s products included the NIR ON Ranger, the NIR ON Ranger w/Sox, and the NIR Primo premounted stent systems, the systems which BSC manufactured and sold in accordance with the Supply Agreement. BSC also developed the NIR Sine and NIR Sine II, roughly simultaneously with Medinol’s development of the NIRflex. After consultations, the parties agreed to focus on the NIRflex and not pursue the NIR Sine II. Manufacturing NIR stents involved a three-step process known as “etch, fold, and weld.” In the etching stage, which Medinol subcontracted to Suron Ltd., an Israeli company, the stent pattern was chemically etched onto a sheet of surgical grade stainless steel. The next two stages used a fold-and-weld machine to transform the flat etching into a circular stent with interlocking components. Once the stent was created, it needed to be electropol-ished, a task which under the Supply Agreement was generally undertaken by BSC. Finally, stents needed a delivery system in order to be inserted into the human body, and BSC manufactured balloon catheters as a stent delivery system. Since 1996, BSC also manufactured replication NIR stents for research and development but not for commercial sale. Rather than using the etch, fold, and weld method employed by Medinol, BSC employed, in producing these stents, a cheaper laser-cut method, using a laser to cut a design from round metal tubing. Both parties now call these “NIR knock-off’ stents, abbreviated as “NIRKOs.” BSC produced at least 72,000 NIRKO stents from mid-1997 to mid-2000. The parties dispute if BSC produced these stents with, or without, Medinol’s knowledge and authorization. The relationship between the parties began to deteriorate amid recriminations around the year 2000. While Medinol was to be the principal manufacturer of stents under the Supply Agreement, that contract contemplated the establishment by Medi-nol of an “Alternative Line” which BSC would maintain and on which BSC could manufacture stents if Medinol failed to produce stents in the required quantities. On April 21, 2000, at a meeting between the Richters and James Tobin, who became BSC’s Chief Executive Officer in 1999, Tobin revealed to the Richters that BSC had established another, clandestine production line for the manufacture of NIR stents, which it had called, alternately, “BBD” (for “Building a Better Deal”), or “Project Independence.” This production line, housed at a BSC facility in Ireland and overseen by its subsidiary Boston Scientific Ireland Ltd. (“BSIL”), had begun to produce stents without the knowledge of Medinol, but had not engaged in any full-scale distribution. Tobin’s revelation caused animosity between Medinol and BSC, and hastened the decline of their alliance. The parties disagree regarding the course of that decline. According to Medinol, the contractual relationship was intact beforehand, but the revelation of Project Independence so shook Medinol’s faith in its partner that it could not in good conscience continue to work closely together. Further, according to Medinol, less than two months after it discovered Project Independence, BSC began a second plan to rid itself of Medinol; it borrowed the blueprint for the NIRflex and used it in creating its own new stent, the Express. Through these activities, Medinol argues, BSC made clear that it was repudiating the contractual relationship between the parties. According to BSC, it had faced numerous problems with Medinol over the years, including deficiencies in supply, increases in price, high defect rates in supply, and erratic and excessive demands regarding control over the future of the relationship. BSC argues that Medinol sabotaged the relationship, made erratic and excessive demands, and withdrew from cooperation regarding drug-coated stent technology, working instead to block the progress of that research. BSC asserts that it concluded that Medinol was no longer interested in working with BSC within their contractual relationship. In or around July 2000, BSC began developing its own Taxus stent and Express delivery system with unique drug-coated properties. BSC submitted applications for regulatory approval of these devices during 2003. On April 5, 2001, Medinol filed this lawsuit against BSC and a number of its officers. On October 22, 2001, Medinol gave notice to BSC to cure breaches of the Supply Agreement and, on February 28, 2002, Medinol sent BSC a letter terminating the Supply Agreement. On September 12, 2002, Medinol entered into a Collaboration Agreement with W.L. Gore & Associates, Inc. for the marketing and distribution of the NIRflex stent. B. The Supply Agreement The Supply Agreement had an initial, extendable ten-year term from October 25, 1995, the date of its execution. § 5.01. It was intended to govern the parties’ commercial relationship respecting stents. The Supply Agreement was structured as a requirements contract, whereby Medinol agreed to “design, manufacture, and sell Stents exclusively to BSC” and granted BSC the exclusive right to “use, market, distribute, and sell” those stents. § 2.01. Medinol agreed to “manufacture Stents meeting Stent Specifications in such quantities as ordered pursuant to Article III” of the contract, § 2.03, and BSC agreed “to purchase Stents developed by or for Medi-nol from Medinol.” § 2.01. Pursuant to Article III, BSC agreed to order stents by submitting “regular purchase order forms,” and by submitting “monthly to Medinol a twelve month Forecast of Stents to be purchased by BSC.” § 3.01(a). BSC “committed to purchase the number of Stents forecast to be purchased during the first three months of such Forecast, and ... committed to purchase 80% of the number of Stents forecast to be purchased during the fourth, fifth and sixth months of such Forecast.” Medinol was required to “maintain or place in service sufficient production capacity to meet the Forecasts, with available excess capacity to meet periodic fluctuations in purchase orders relating to the fourth, fifth and sixth months of the Forecast of at least 125% of the Forecast.” § 3.01(a). Medinol agreed that it would “promptly advise BSC if it may be unable to manufacture any Stent in the quantities forecast by BSC.” § 3.01(a). BSC was also permitted to “supplement the Forecast ... by delivering additional purchase orders,” which Medinol pledged to “fill on a timely basis to the extent such orders [wejre in respect of the fourth, fifth and sixth months of the then current Forecast and [we]re 125% or less of the forecast amounts, and [to] use all reasonable efforts to fill in a timely basis to the extent such orders exceeded] 125% of the forecast amounts.” § 3.01(b). BSC, in exchange, promised to “use all commercially reasonable efforts to promote and market” Medinol stents “in all significant markets.” § 2.11. It also agreed to “concentrate its Stent business on the development, marketing, distribution and sale” of Medinol stents, “[s]o long as there has not been a material non-acceptance” of Medinol stents in the marketplace. § 3.02(b). Medinol acknowledged that BSC had “independent, preexisting Stent technology of its own,” § 2.01, and BSC was permitted to “sell Stents developed by or for it,” § 3.02(b); however, if, prior to a material non-acceptance of Medinol stents in the marketplace, BSC sold its own stents when it could have sold Medinol’s, it was required to pay royalties to Medinol. § 3.02(b). The “transfer price” which BSC paid per stent on a quarterly basis was set at thirty percent of the average sale price of Medi-nol stents sold by BSC in the preceding quarter. § 3.02(a). BSC agreed to provide Medinol with quarterly sales reports, § 2.09, and to “keep complete and accurate records of Net Sales in sufficient detail to enable Medinol to determine payments owed to it” for a period of three years. § 2.08. BSC also agreed to allow a Medinol accountant to inspect those records. § 2.08. To manufacture the stents, Medinol agreed to establish “at least two automated commercial volume production lines, both in facilities of Medinol to be designated by Medinol after consultation with BSC.” § 2.02(a). One was to be established no later than September 30, 1996, and the other no later than March 31, 1997, and Medinol was to “use all reasonable efforts to cause such production lines to be fully operational as promptly as practicable after their establishment, but in any event no later than six months after their establishment.” § 2.02(a). Medinol also agreed to design, and, upon receipt of a purchase order from BSC, to establish “promptly” (although not before the establishment of its own two production lines), “an independent automated commercial volume production line,” known as the “Alternative Line.” § 2.02(a). This Alternative Line was to be established at BSC’s expense in a facility chosen by BSC. § 2.02(a). Medinol agreed to “use all reasonable efforts to cause such Alternative Line to be fully operational as promptly as practicable” after its establishment. § 2.02(b). This included “providing BSC with all assistance reasonably necessary to operate the Alternative Line,” including training and documentation regarding equipment, personnel, processes, data, and quality control. § 2.02(b). Further, “[i]n connection with the operation of the Alternative Line, Medinol [granted] to BSC the sole and exclusive right, license and privilege (subject to the rights of Medinol to manufacture Stents in accordance with this Agreement) to manufacture in accordance with the terms of this Agreement, use, market, distribute and sell Stents manufactured on the Alternative Line.” § 2.02(b). Medinol also authorized BSC to order chemical etching — a component of the stent manufacturing process — from Medinol’s existing supplier of chemical etching services or from a second etcher designated by Medinol, and it gave BSC the right to use all of its etching-related equipment. § 2.02(e). The Alternative Line was not to be a replacement for the manufacture of stents by Medinol. It was not to be used “unless and until such time as Medinol has failed to satisfy BSC’s requirements for Stents as described in Section 3.03.” § 2.02(c). Section 3.03 gave BSC the right to use the Alternative Line if Medinol failed to “satisfy BSC’s requirements for two months out of any fourth month period, and the purchase orders of BSC [did] not exceed 125% of the Forecast for such periods.” § 3.03. BSC then had the right to operate the Alternative Line “to the extent of Medi-nol’s failure to supply (plus 25%) until such time as Medinol provide[d] reasonable assurances to BSC” regarding its capacity to meet its obligations, and for two months thereafter. § 3.03. If these conditions were not met, BSC was permitted to manufacture on the Alternative Line only “such nominal number of Stents (currently estimated at no more than 500 a month) necessary to maintain the Alternative Line in good operating condition.” § 2.02(c). For stents manufactured on the Alternative Line, BSC was required to pay Medinol the “transfer price” less the “Burdened Costs” that Medinol would have incurred had it manufactured the stents itself. § 3.02(c). The Supply Agreement obligated both parties to maintain quality standards for their production of stents. The parties agreed to manufacture stents pursuant to an agreed-upon set of initial specifications, any agreed-upon additional specifications, and all applicable regulations. §§ 1.01, 2.03, 6.01, Exh. A. The parties agreed to “establish sufficient quality controls,” and each party was permitted, upon request, to conduct quality control inspections of the other’s manufacturing. § 6.01. Both parties also agreed to submit to regulatory inspection, to “advise the other of the findings of any such inspections and [to] immediately take all steps necessary to correct any deficiencies found in the course of the inspection.” § 6.03. BSC was also permitted to inspect stents shipped to it by Medinol, and the contract provided criteria under which BSC might reject faulty stents. § 3.06, Exhs. B, C. The parties agreed that upon BSC’s written request, stents would be delivered to BSC “unpolished,” and BSC would perform the requisite elec-tropolishing process on such stents, with Medinol pledging its assistance where necessary. § 2.02(d). In the event that a stent failed or its statistical rate of reliability changed, each party had a duty to report the information to the other. § 4.05. BSC had the right, “in its sole discretion, to decide whether to recall or issue an advisory letter regarding reliability or defects in Stents.” § 4.06. The parties agreed to “cooperate in the operation of [a] Development Program,” with the “initial goal of developing NIR Stents for all markets” and the more general mandate “to jointly identify research and develop programs relating to Stents, including any clinical trial programs, and to review the results of programs in progress.” § 2.04(a). This Development Program was to be fully funded by Medinol, except for balloons, § 2.04(b), and Medinol promised to “use all commercially reasonable efforts to initiate, pursue and advance Stent Developments, including those undertaken in connection with the Development Program, and to generally support BSC’s marketing efforts.” § 2.10. The parties agreed to “consult with each other in good faith before approving and initiating any new development programs or clinical trials with respect to the coating or covering of Stents.” § 2.04(b). Medinol agreed to “keep BSC reasonably informed of any changes in [its] manufacturing processes or procedures in order for BSC to determine the impact of such changes on the quality or integrity of the Stents,” and BSC was required to “respond to such notice reasonably promptly.” § 6.02. “[N]o changes in Medinol’s approved manufacturing processes or procedures which [would] affect the Stent Specifications or safety or efficiency” could be made without BSC’s prior written approval, which could not be “unreasonably withheld or delayed.” § 6.02. Medinol was required, at its expense, to “diligently and reasonably promptly apply for registration and regulatory approvals deemed necessary by Medinol and BSC.” § 4.01. At Medinol’s request, BSC was required to “provide such reasonable assistance and information as is necessary for Medinol to seek and obtain such registrations and regulatory approvals.” § 4.01. The parties agreed “to cooperate with each other to obtain all FDA approvals necessary for the manufacture, marketing, distribution and sale of the Stents to be sold ... in the United States.” § 4.02. More specifically, they agreed “that Medinol and BSC shall submit an application in BSC’s name for a premarket approval,” or “PMA,” for stents to be sold in the United States. § 4.02. The PMA was to “designate Medinol as an additional manufacturer for purposes of the PMA,” and would later be supplemented to add Medinol as an additional distributor. § 4.02. BSC was required to assign the PMA to Medinol if, upon termination of the Supply Agreement, BSC “retain[ed] no license from Medinol.” § 4.02. Subject to the licenses granted in the Supply Agreement, Medinol retained its own “Patent Rights” and “Proprietary Rights.” § 9.02. BSC also retained its own Patent Rights and Proprietary Rights, § 9.02. Medinol granted BSC “a royalty-free exclusive license, subject to the terms [of the Supply Agreement], in Medinol Proprietary Rights, Company Patent Rights, Patent Rights accruing to Medinol and Stent Developments developed by Medinol to market, sell and distribute Stents for all medical applications.” § 9.02. Each party agreed to “take all reasonable steps to prevent disclosure of Confidential Information,” except “as may be inherent or reasonably necessary for marketing Products or for securing from any governmental agency any necessary approval or license.” § 10.01. Each party consented “not to utilize in any form the other party’s Confidential Information and/or Proprietary Rights except with respect to the Stents, unless otherwise agreed in writing.” § 10.01. The relationship between the parties regarding stents was intended to be far-reaching. BSC pledged to “give Medinol an opportunity to participate on a regular basis in strategic discussions with BSC with respect to marketing, distribution and sale of Stents,” to “consult with Medinol in good faith with respect to the markets and geographic areas ... in which BSC intends to market Stents,” and to “meet with Medinol from time to time to review market trends.” § 2.05. The parties agreed “to consult with each other in good faith in connection with [their] retention or termination of key employees primarily engaged in the Stent business,” and to review “overall personnel resources that are devoted to” stents. § 2.06. The parties further agreed “to promptly report and disclose to each other all Stent Developments and to make all such Stent Developments available” to each other. § 2.07. Finally, the parties agreed to “meet not less frequently than quarterly to review compliance with and performance of the parties under this Agreement.” § 6.04. The Supply Agreement had an initial ten-year term, with automatic one-year extensions. § 5.01. Upon the expiration of the original term or any extension, either party could terminate the agreement upon three months’ written notice; if Medinol exercised that right, BSC would become entitled to a “perpetual, non-exclusive right” to “manufacture, use, market, distribute and sell Stents developed by or for Medinol through the date of such termination.” § 5.01. Alternatively, prior to expiration, either party could terminate the contract “if the other shall fail in any material respect to observe or perform any of the material provisions of th[e] Agreement ... and any such failure shall not be remedied within ninety calendar days after receipt of written or telexed notice from the other party specifying such failure or, in the case of payments due, within thirty calendar days after receipt of such notice.” § 5.02(a). The parties agreed to continue their requirements relationship until the effective date of termination, and BSC was permitted to sell off its inventory after termination. § 5.03. The Supply Agreement provided that its terms were severable, § 12.02, and that it “and the Transaction Agreement constitute the entire agreement among the parties with respect to the subject matter hereof.” § 12.03. The parties provided that the Supply Agreement would be governed by New York law, § 12.07, and they consented to the exclusive jurisdiction of the United States District Court for the Southern District of New York. § 12.08. The parties agreed “that irreparable damage would occur in the event any provision of this Agreement was not performed in ae-cordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.” § 12.06. Finally, the parties “irrevocably waive[d] all right to trial by jury in any action ... arising out of or relating to this Agreement.” § 12.12. C. The Transaction and Stockholder Agreements The same day as they executed the Supply Agreement, the parties also executed a Transaction Agreement and a Stockholder Agreement. Under the Transaction Agreement, BSC was to purchase Medinol shares in two installments, the “first closing” and the “second closing.” § 2.01. At the first closing, BSC was to pay $40 million in cash in return for 21,400 shares of Medinol. §§ 1.01, 2.02(b). At the second closing, BSC was to pay $30 million in cash or stock to acquire 20,059 shares of Medi-nol, with an option to purchase more shares, at the rate of $1,688 per share, to obtain ownership of 20% of Medinol’s shares. § 1.01, 2.03(b). Medinol agreed that it would distribute $15 million of the first $40 million installment to its shareholders other than BSC, and that it would invest the remaining $25 million in its “Stent business,” including developing technological advancements for current and next generation stents, establishing two automated commercial volume production lines, obtaining regulatory approvals and protecting intellectual property, and performing clinical evaluations. § 5.02(a). As to the second closing, Medi-nol agreed that the cash proceeds that it received, including proceeds from the sale of BSC stock, were to be invested in the same manner as the $25 million from the first closing. § 5.02(b). The Stockholder Agreement governed the relationships among BSC, Medinol, Dr. Judith Richter, and Dr. Jacob Richter with respect to BSC’s ownership of Medinol shares. Pursuant to the Stockholder Agreement, following the first closing, “BSC shall receive not less than three days’ written notice of all meetings of [Medinol’s] Board [of Directors] and of all actions to be taken by the Board, shall be permitted to have one or more individuals attend each meeting of the Board as observers, and shall receive copies of all materials distributed to or by the Board.” § 2.01(a). Following the second closing, and at subsequent shareholder meetings, Medinol agreed, “if so requested by BSC, [to] use its best efforts to cause a nominee of BSC to be elected to the Board,” and the Richters agreed to vote all of their shares in favor of that nominee. § 2.01(b). The Stockholder Agreement required Medinol to provide BSC with quarterly and annual financial statements, and with its annual business plan and budget. §§ 3.01(a), (b), 3.03. Medinol also agreed to allow BSC to inspect its books and records and' to “discuss the affairs, finances and accounts of Medinol with representatives of Medinol, including Medi-nol’s independent auditors.” § 3.02. If Medinol “determinefd] to engage in any new line of business unrelated to the development ... manufacture, marketing and sale of Stents,” it was obligated to “consult with BSC prior to actually engaging in any such line of business.” § 3.04. BSC was granted a “Right of First Negotiation” if either of the Richters “determine[d] to make a Sale of any shares of capital stock of Medinol” or if Medinol, its affiliates, or either of the Richters “determine[d] to make a Sale of’ any of Medi-nol’s intellectual property rights or “any other material asset or combination of assets of Medinol.” § 4.01(a). BSC also enjoyed preemptive rights with regard to Medinol stock. §§ 4.02, 4.03. If Medinol “at any time propose[d] to register any of its authorized but unissued shares of capital stock” for sale to the public, it promised first to give “prompt written notice to BSC of its intention to do so.” § 5.01(a). Both the Transaction Agreement and the Stockholder Agreement contained confidentiality provisions. In the Transaction Agreement, the parties promised to comply with a “Confidentiality and Non-Disclosure Agreement dated October 18, 1995 between Medinol and BSC.” § 5.03. That Confidentiality Agreement governed disclosure, made “[i]n the course of discussions between the parties,” of information designated as confidential. It required each of the parties to maintain information so designated “in the strictest confidence”; not to disclose such information “except to those of its employees having a need to know”; and not to use such information except “for the purpose(s) of equity investment, exclusive distribution and/or acquisition or other business relationships between the parties.” The Confidentiality Agreement also obligated each party not to “analyze, decompile, disassemble, reverse engineer (or the like) any tangible product or media which constitutes, contains or in any way embodies” the other party’s confidential information. In the Stockholder Agreement, BSC, Medinol, and the Richters agreed not to reveal or “use in any way detrimental to the Business, Medinol or BSC any non-public, confidential or proprietary information relating to the business or affairs of Medinol or BSC.” § 6.06. BSC, in the Transaction Agreement, contracted to “defend, indemnify and hold Medinol harmless against any and all liabilities, losses, damages, costs or expenses that Medinol may incur as a result of any action brought by any person (other than a current or former stockholder of Medinol) against Medinol arising from Medinol’s execution or performance of this Agreement, the Supply Agreement or the Stockholder Agreement,” unless Medinol breached the warranties contained in the Transaction Agreement. § 9.03 Both the Transaction Agreement and the Stockholder Agreement contained integration clauses, severability clauses and clauses providing for specific performance. Transaction Agreement §§ 9.02, 9.04, 9.06; Stockholder Agreement §§ 6.03, 6.04, 6.07. The parties agreed that the Stockholder Agreement would be governed by New York law, Stockholder Agreement § 6.08, and that the Transaction Agreement would be governed by New York law “[e]xcept to the extent that Israeli law is mandatorily applicable to the sale of Shares.” Transaction Agreement § 9.07. In both agreements, the parties consented to the exclusive jurisdiction of the United States District Court for the Southern District of New York, and in both they agreed to waive their rights to trial by jury. Transaction Agreement §§ 9.08(a), 9.12; Stockholder Agreement §§ 6.07(a), 6.10. D. The Pleadings Medinol’s Second Amended Complaint (the “Complaint”) asserts eleven claims for relief against Boston Scientific, and names two of its officers as defendants, Chairman and former Chief Executive Officer Peter M. Nicholas, and Chief Financial Officer Lawrence C. Best. The core of Medinol’s Second Amended Complaint revolves around Project Independence, which Medi-nol asserts “was a systematic project to copy and steal Medinol’s proprietary stent designs and proprietary method for manufacturing stents,” which defendants employed “so that they could rid themselves of Medinol.” According to Medinol, the defendants entered into this scheme because they took note of the high profit margins Medinol was experiencing, and they hoped.to appropriate those profits for BSC. Project Independence, Medinol alleges, was part of a broader conspiracy known as “Buy/Bye Medinol,” an effort to “steal Medinol’s technology and then either buy Medinol out cheaply or get rid of it.” In this vein, BSC allegedly undertook other efforts to thwart MedinoFs success and thereby depress its value, such as delaying the launch of MedinoFs new stents, prioritizing work on its own stents over MedinoFs, and interfering with Medi-noFs planned initial public offering. Medi-nol thus asserts claims, not only for breach of contract, but also for unjust enrichment, breach of fiduciary duty, fraud and fraudulent concealment, negligent misrepresentation, misappropriation of trade secrets, conspiracy, and RICO (18 U.S.C. § 1962(c) and (d)). Medinol seeks damages and declaratory and injunctive relief. Boston Scientific alleges six counterclaims against Medinol, one of which it also asserts personally against Dr. Judith Richter and Dr. Jacob Richter. BSC’s Answer and its First Amended Counterclaims allege that from early in the parties’ relationship, “Medinol has acted to increase its leverage over BSC and alter the terms of the agreements it had executed.” According to BSC, MedinoFs efforts in this regard included manipulating its supply of stents to BSC’s disadvantage, failing to establish the Alternative Line, failing to meet its research and development obligations, charging unjustifiably high prices for stents, and failing to allow BSC to conduct quality control inspections, among other things. Countering MedinoFs allegations, BSC alleges that “[ultimately, Medinol simply refused to participate in the relationship in an effort to force BSC either to buy Medinol for an inflated price or to allow Medinol to go its own way.” BSC asserts counterclaims for breach of contract, improper termination of the Supply Agreement, breach of the covenant of good faith and fair dealing, and for declaratory judgment; it seeks damages and declaratory and injunctive relief. In response to BSC’s counterclaims, Medinol filed counterclaims and third-party claims of its own, seeking declaratory judgment. Medinol asserts four counterclaims seeking declarations that BSC’s counterclaims must fail, that BSC is liable to Medinol for indemnification, that BSC has breached the March 3, 1997 Release which it executed, and that BSC has forfeited the right to nominate a director to MedinoFs Board of Directors. E. Procedural History Medinol filed this lawsuit on April 5, 2001, naming as defendants Boston Scientific and various of its officers and directors. On May 22, 2001, Boston Scientific filed its Answer and Counterclaims. On June 18, 2001, the individual defendants moved to dismiss the case and, on September 21, 2001, I partially granted their motions, dismissing all individual defendants except for Peter Nicholas and Lawrence Best. Medinol filed its Second Amended Complaint on October 5, 2001; BSC filed its Answer on October 22, 2001; and Medinol filed its Answer and Counterclaims on November 7, 2001. Peter Nicholas and Lawrence Best filed their Answers on January 16, 2002, and BSC filed Amended Counterclaims and an Amended Third-Party Complaint on June 19, 2002. During and after this period, the parties engaged in extensive discovery in the United States, the United Kingdom, and Israel, and I resolved a number of disputes, including one reported at Medinol Ltd. v. Boston Scientific Corp., 214 F.R.D. 113 (S.D.N.Y.2002), relating to an issue of attorney-client and work product privileges. Both Medinol and Boston Scientific, and Nicholas and Best as well, filed motions for summary judgment on August 8, 2003. I heard oral argument on November 25 and December 16, 2003. I have considered the voluminous submissions of the parties and their positions at oral argument. I now grant in part and deny in part Medinol’s motion for summary judgment; grant in part and deny in part Boston Scientific’s motion for summary judgment; and grant the summary judgment motions of Nicholas and Best. II. Discussion A. Summary Judgment Summary judgment may be granted if there are “no genuine issues as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A “genuine issue” of “material fact” exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of “informing the district court of the basis for its motion” and identifying the matter that “it believes demonstrate^] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to come forward with competent evidence: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed.R.Civ.P. 56(e). Although all facts and inferences therefrom are to be construed in favor of the party opposing the motion. Harlen Assocs. v. Village of Mineola, 273 F.3d 494, 498 (2d Cir.2001), that party must raise more than just a “metaphysical doubt” as to a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[M]ere speculation and conjecture is insufficient to preclude the granting of the motion.” Harlen, 273 F.3d at 499. Accordingly, if the “evidence favoring the nonmoving party .... is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). B. Project Independence Lying at the heart of this case is Project Independence, or BBD. BBD stands for “Bringing a Better Deal” to Boston Scientific, and Medinol alleges that BBD was a sinister plan on the part of BSC — a conspiracy among it and its top officers, in-eluding Nicholas and Best — to circumvent the contract, steal Medinol’s technology, and appropriate Medinol’s profits. On April 21, 2000, Boston Scientific’s new Chief Executive Officer, James Tobin, met with the Richters and disclosed that Boston Scientific had established a production line in Ireland that was not contemplated by the Supply Agreement and had been kept secret from Medinol. Tobin described the meeting as “very painful” and “embarrassing,” but considered that he had to inform Medinol about BBD because a criminal investigation of the Department of Justice into Boston Scientific’s practices had uncovered it. No stents were ever actually sold from this clandestine production line, but its relatively large capacity was 6500 stents per week. The purpose behind Project Independence is disputed. Medinol argues that BSC wished to capture the large profits that it believed Medinol enjoyed from stent manufacturing, and that BSC adopted its scheme to gain “independence” from Medinol. Medinol alleges that BBD was the second half of a larger plan known as “Buy/Bye Medinol,” a comprehensive plan to achieve independence from Medi-nol via one of two routes: either depressing Medinol’s stock price and buying it cheaply, or cutting Medinol out of the deal and stealing Medinol’s profits. Boston Scientific argues that this was simply an attempt to preserve the deal by assuring that its demand for stent production would be met without any problem. The Department of Justice concluded that “[t]he goal of this project was to establish a BSC-related stent manufacturing facility in Ireland that was hidden/kept secret from Medinol.” Eight counts of Medinol’s Complaint contain allegations relevant to Project Independence. BSC moves for summary judgment to dismiss these claims, and Medinol moves for summary judgment to declare that BSC’s denials and defenses are legally inadequate. BSC contends that it had the right to establish Project Independence, either because it was “cover” for Medinol’s failure to fulfill its commitments in the contract, or because of the license afforded to BSC in the Supply Agreement. In addition, BSC argues that even if Project Independence was a violation of the contract, BSC cannot be held liable because it caused Medinol no damages. Medinol argues to the contrary. For the reasons set out below, I grant these aspects of Medinol’s motion for summary judgment and deny BSC’s motion for summary judgment. I hold that the doctrine of cover and the license provisions of the contract did not justify Project Independence, and that Medinol may prove at trial such damages as it may have suffered. 1. Cover Under section 2.02 of the Supply Agreement, Medinol agreed to build three production lines for the manufacture of NIR stents, two to be operated by Medinol, and one to be placed under BSC’s control. As the contract provided, Medinol agreed first to establish “at least two automated commercial volume production lines for the manufacture of NIR Stents, both in facilities of Medinol.” § 2.02(a). In addition, Medinol agreed to “design for BSC an independent automated commercial volume production line for the manufacture of Stents (the ‘Alternative Line’) ... in a facility of BSC to be designated by BSC,” at BSC’s expense. § 2.02(b). This third line, the Alternative Line, was to have full capacity to manufacture NIR stents, not for regular use, but as a safety measure to protect BSC in the event that Medinol failed to provide it with adequate supply. The agreement gave BSC the right to manufacture only five hundred stents a month on the Alternative Line, the amount stipulated as necessary to keep the machinery in good working order, “unless and until such time as Medinol has failed to satisfy BSC’s requirements for Stents.” § 2.02(c). BSC identified its facility in Ireland, operated by its subsidiary BSIL as the site for the Alternative Line. Medinol sent machinery to Ireland, and an employee to help make the machinery operational and to help train BSIL employees. However, Boston Scientific determined that it would itself establish independent, alternative facilities in Ireland, and named its efforts “Project Independence.” Boston Scientific argues that Medinol was an unproven company, lacking the track record to be an assured source of reliable supply, that the purpose of its Alternative Line was to enable BSC to have an independent source to overcome the risk of an erratic supplier, and that the machinery Medinol delivered to Ireland was inadequate and deficient. Boston Scientific argues that Project Independence was “cover” for Medinol’s inadequacy. Boston Scientific’s argument is fallacious, technically under the law of “cover,” because it cannot first contract with a party of known limitations and then complain of just those limitations. It is as if a man marries a poor woman, and then complains that she is not rich. Cover, as authorized by Article 2 of the Uniform Commercial Code, applies to contracts for the sale of goods. N.Y. U.C.C. §§ 2-711(1), 2-102. The threshold question in examining the legal sufficiency of BSC’s defense of cover, therefore, is whether the Supply Agreement is a contract for the sale of goods and is therefore subject to the U.C.C.; if not, BSC has no right to cover. “In determining whether a contract is for the sale of goods, and thus covered by the U.C.C., it is necessary to look to the ‘essence’ or main objective of the parties’ agreement. If the provision of services or rendition of other performance predominates and is not merely incidental or collateral to the sale of goods, then the contract will not be subject to” the U.C.C. Dynamics Corp. of America v. International Harvester Co., 429 F.Supp. 341,. 346 (S.D.N.Y.1977) (Weinfeld, J.) (applying New York law); see also Triangle Underwriters, Inc. v. Honeywell, Inc., 604 F.2d 737 (2d Cir.1979) (applying New York law and following Dynamics Corp.); Cary Oil Co. v. MG Ref. & Mktg., Inc., 90 F.Supp.2d 401 (S.D.N.Y.2000) (Kaplan, J.) (same). The Supply Agreement between Medi-nol and BSC is complex and multifaceted. Although the provisions requiring Medinol to supply stents to accommodate BSC’s projected distribution and sales predominate, and Medinol’s obligations to design an Alternative Line for BSC and to train its personnel appear to be “incidental or collateral” rather than “independent and several,” Dynamics Corp., 429 F.Supp. at 346,1 hesitate to make such a ruling in the context of a summary judgment motion. See, e.g., International Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76 (2d Cir.2002) (reversing grant of summary judgment based on contract interpretation where relevant contract term was held to be ambiguous). Accordingly, for the purpose of the following analysis, I assume, without deciding, that the Uniform Commercial Code applies, and I proceed to examine if BSC has made proper use of the defense of “cover.” The Official Comment to the U.C.C. explains the doctrine of cover as “a remedy aimed at enabling [the buyer] to obtain the goods he needs.” N.Y. U.C.C. § 2-712, Official Comment 1. Courts and commentators have understood cover as a specialized subset of either the right to mitigate damages or, alternatively, the right to exercise self-help. On the one hand, cover may be viewed as a species of mitigation; a disappointed buyer may discharge his obligation to mitigate damages through purchasing replacement goods, and the breaching seller is liable only for the value of the promise originally made less the value of replacement, leaving aside the issue of special goods. See, e.g., Larsen v. A.C. Carpenter, Inc., 620 F.Supp. 1084, 1136 (S.D.N.Y.1985) (viewing cover as a form of mitigation, and relying on N.Y. U.C.C. § 2-715(2)(a), which provides for mitigation of damages “by cover or otherwise”); Pepper’s Steel & Alloys, Inc. v. Lissner Minerals & Metals, Inc., 494 F.Supp. 487, 498 (S.D.N.Y.1979) (equating cover and mitigation); Saboundjian v. Bank Audi (USA), 157 A.D.2d 278, 556 N.Y.S.2d 258 (1990) (same); III E. Allan Farnsworth, Farnsworth on Contracts § 12.11-12.12, at 225-27, 235 (2004) (same); Charles J. Goetz & Robert E. Scott, The Mitigation Principle: Toward a General Theory of Contractual Obligation, 69 Va. L.Rev. 967, 971-72 (1983) (same). Alternatively, cover may be viewed as a species of self-help; where the disappointed buyer must either find substitute goods or face substantial losses, the law instructs him to do the former. See, e.g., Fertico Belgium S.A. v. Phosphate Chemicals Export Ass’n, 70 N.Y.2d 76, 517 N.Y.S.2d 465, 510 N.E.2d 334 (1987) (buyer may seek “the partial self-help of cover”); II Farns-worth on Contracts § 8.19a, at 546 (grouping buyer’s right to cover and seller’s right to resell as examples of right to self-help, but warning that the boundaries of self-help are risky and ill-defined); Celia R. Taylor, Self-Help in Contract Law: An Exploration and Proposal, 33 Wake Forest L.Rev. 839, 869 (1998) (“[c]over is a self-help remedy”). Either way, the buyer must act “in good faith and in a reasonable manner.” N.Y. U.C.C. § 2-712, Official Comment 2. The U.C.C. provides three conditions for a buyer’s cover. First, the seller must have made defective or inadequate delivery of the goods ordered by the buyer: Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid (a) “cover” and have damages under the next section as to all the goods affected whether or not they have been identified to the contract N.Y. U.C.C. § 2-711(1). Second, the buyer must obtain cover “in good faith and without unreasonable delay” by contracting “to purchase goods in substitution for those due from the seller”: (1) After a breach within the preceding section the buyer may “cover” by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller. (2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2-715), but less expenses saved in consequence of the seller’s breach. (3) Failure of the buyer to effect cover within this section does not bar him from any other remedy. N.Y. U.C.C. § 2-712. Third, like any other remedy, cover is available only after the buyer has given the seller due notice of breach: “Where a tender has been accepted, (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” NY. U.C.C. § 2-607(3). Thus, the buyer may cover where the seller has failed to provide goods that it had contracted to deliver, by buying the same goods from elsewhere, and charging the delinquent seller with the increased cost of the cover. See, e.g., Fertico Belgium, 517 N.Y.S.2d 465, 510 N.E.2d at 335 (seller breached its contract to timely deliver goods to buyer, “who properly sought cover (under the Uniform Commercial Code that means acquiring substitute goods) from another source” in order to avoid breaching the buyer’s duty to a third party). The present situation is different. BSC’s complaint is that Medi-nol was slow to design an alternative manufacturing line which might, in the future, be necessary to supply BSC with stents if Medinol ever failed to meet BSC’s order of stents. In truth, as Tobin of BSC admitted, BSC chose to build its own manufac-taring facility, in stealth and for its own reasons, to be independent of, and to replace Medinol, as a source of supply. This is breach, not “cover” as the U.C.C. defines the term. A number of incongruities between the present case and the typical instance of cover demonstrate further that this case cannot fit into the legal framework of cover. First, the seller’s defective supply of goods must be “with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract.” NY. U.C.C. § 2-711(1). BSC does not claim, as it cannot, that Medinol’s asserted failure with respect to designing an Alternative Line was a breach of “any goods involved,” or “with respect to the whole,” “go[ing] to the whole contract.” Id. The U.C.C. defines “goods” as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities ... and things in action.” Id. § 2-105(1). An Alternative Line is not “goods.” Cover extends to goods, not to a line to manufacture goods, or methods to produce them. Second, the undisputed facts make it clear that BSC was developing its Project Independence facilities in a separate and secret Irish facility, simultaneously with Medinol’s work on the Alternative Line, with both sets of facilities being simultaneously and substantially developed in the summer of 1997. Clearly, Project Independence was intended to operate alongside the Alternative Line, not as “substitution” for it. Further, BSC did not reject Medinol’s work in designing and developing the Alternative Line, and thus it cannot claim the right to cover for it. “[T]he Uniform Commercial Code limits the recovery options of a buyer who accepts and keeps defective goods. Whereas a buyer who rejects or revokes acceptance of nonconforming goods may seek damages for ‘cover,’ N.Y. U.C.C. §§ 2-711 and 2-712 (McKinney 1964), a buyer who retains defective goods may recover as damages only the loss resulting in the ordinary course of events from the seller’s breach, N.Y. U.C.C. § 2-714.” Long Island Lighting Co. v. IMO Industries, Inc., 1990 WL 64588, at *3 (S.D.N.Y. May 3, 1990), 1990 U.S. Dist. Lexis 5351, at *9-*10. Since BSC did not reject the Alternative Line, its remedy would not be cover, but only such provable loss as might result in the ordinary course of events from Medinol’s alleged breach of its duty to design and develop the Alternative Line. Third, BSC did not intend to pass on to Medinol the increased cost it incurred in establishing Project Independence. Under U.C.C. § 2-7612(2) and almost all relevant case law, that would have been its damage if it were pursuing cover. See, e.g., Allied Semi-Conductors Int’l v. Pulsar Components Int’l, 907 F.Supp. 618 (E.D.N.Y.1995); Jewell-Rung Agency, Inc. v. Haddad Org., Ltd., 814 F.Supp. 337 (S.D.N.Y.1993). Significantly, BSC does not allege that it suffered any “damages” at all stemming from Medinol’s allegedly delayed or defective supply of the Alternative Line for which it might be able to justify a need for cover. See Chronister Oil Co. v. Unocal Refining & Marketing, 34 F.3d 462, 465 (7th Cir.1994) (suggesting that the cover provision is inappropriate when the buyer has not been hurt). The allegedly imperfect installation of the Alternative Line did not materially harm BSC and, accordingly, it cannot claim a remedy that is tied to damages. Fourth, BSC did not undertake Project Independence with the required good faith. N.Y. U.C.C. § 2-712. BSC’s bad faith is shown by the stealth with which it proceeded with Project Independence, and by its sending an employee, engineer Ai-den Flanagan, to Medinol’s facility in Israel with secret instructions clandestinely to copy Medinol’s machinery and know-how in manufacturing stents. BSC’s successor CEO, Tobin, essentially admitted such bad faith when he finally revealed Project Independence to Medinol. Thus, BSC did not meet the “good faith” prerequisite to cover prescribed by § 2-712. Finally, developing manufacturing capacity for oneself, rather than purchasing a substitute manufacturing line from another vendor, is no more cover than issuing goods from one’s own inventory, for “[y]ou can’t ‘purchase,’ whether in ordinary language or UCCspeak (see § 1-201(32)), what you already own.... Taking a good out of your inventory and selling it is not a purchase in a market.” Chronister Oil, 34 F.3d at 465; cf. Dodd, Mead & Co. v. Lilienthal, 514 F.Supp. 105, 107-08 (S.D.N.Y.1981) (rejecting defendant’s argument that he could “cover” for undelivered books by printing his own copies, stating that such self-help “breach[ed] the contract egregiously”). Accordingly, BSC’s effort to create its own manufacturing line, clandestinely and in derogation of that which Medinol had zealously guarded, cannot constitute “cover.” 2. License BSC also contends that the production line that it created through Project Independence was licensed pursuant to the Supply Agreement, and therefore legitimate. BSC argues that the Supply Agreement gave it a license to use and manufacture stents and, therefore, to develop a substitute manufacturing line. BSC’s argument is without merit. Two provisions of the Supply Agreement grant licenses to BSC; neither supports its argument. The first, section 2.02(b), reads as follows: In connection with the operation of the Alternative Line, Medinol will grant to BSC the sole and exclusive right, license and privilege (subject to the rights of Medinol to manufacture Stents in accordance with this Agreement) to manufacture in accordance with the terms of this Agreement, use, market, distribute and sell Stents manufactured on the Alternative Line in the Territory. The second license section of the Supply Agreement, section 9.02, provides: Medinol hereby grants to BSC a royalty-free exclusive license, subject to the terms hereof, in Medinol Proprietary Rights, Company Patent Rights, Patent Rights accruing to Medinol and Stent Developments developed by Medinol to market, sell and distribute Stents for all medical applications. Thus the first license grants five rights: to (1) manufacture, (2) use, (3) market, (4) distribute, and (5) sell. That license is limited, however, to stents produced on the Alternative Line. The second license, which is not so limited, grants only the last three of those five rights, to market, distribute, and sell. It does not grant the first two rights, to (1) manufacture and (2) use. Thus Medinol licensed to BSC the rights to (1) manufacture and (2) use its stents only in connection with the Alternative Line. Clearly, BSC was not granted the right to develop its own manufacturing facilities. The first license grants to BSC the right to manufacture stents, but only “[i]n connection with the operation of the Alternative Line.” Project Independence was not undertaken “[i]n connection with the operation of the Alternative Line,” but separately and independently of the Alternative Line. The license provided by section 2.02(b) did not authorize Project Independence. BSC argues that the right to manufacture stents is included in the license in section 9.02, even though the license provides a grant only “to market, sell, and distribute stents.” BSC argues that the terms, “Patent Rights” and “Proprietary Rights,” in the grant of the section 9.02 license are defined to include the right to “manufacture.” The argument proceeds tortuously, as follows: Section 1.01 defines “Patent Rights” and “Proprietary Rights” broadly to include manufacture: “Patent Rights” means all patents, patent applications, and rights to file patent applications in the United States or in a foreign jurisdiction relating to Stents, including but not limited to their manufacture, sale, use or design.... “Proprietary Rights” means all proprietary rights and interests of every nature in, to or covering Stents, their processing, manufacture or use ... and shall include, but not be limited to, invention, ideas, manufacturing know-how, technology and trade secrets. The definitions, however, cannot displace the carefully constructed granting clauses. The grant by Medinol in section 9.02 of “Proprietary Rights” and “Patent Rights” was for a limited end use, “to market, sell and distribute Stents for all medical applications.” BSC’s argument would ignore the limitation, and blur the careful distinction in the grants of licenses, by section 2.02(b) in connection with the operation of the Alternative Line, and only in that connection, and by section 9.02 in connection with the basic purpose of the Supply Agreement, to enable BSC to “market, sell and distribute” the Stents “developed by Medinol,” for “all medical applications.” Thus, the rights to manufacture and use were purposefully included in section 2.02(b), and purposefully omitted from section 9.02. Although expressio unius est exclusio alterius is a canon of construction rather than a rule of law, see William N. Eskridge, Jr. et al., Legislation 824-25 (3d ed.2001); Kent Greenawalt, Legislation 202-05 (1999), that understanding is inescapable given the basic purpose of the agreement. Medinol, in the normal course of business, was to manufacture stents and sell them to BSC, and BSC was to market and sell those stents throughout the United States and elsewhere. In case Medinol faltered