
    Jack R. Ferber, Appellant, v Sterndent Corporation et al., Respondents, et al., Defendants.
    Argued September 2, 1980;
    decided October 7, 1980
    
      APPEARANCES OF COUNSEL
    
      I. Walton Bader for appellant.
    
      Douglas M. Kraus and Miriam L. Siroky for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

As the court below found, plaintiff failed to produce any evidence to support his claim that the idea which he disclosed to defendants was novel either in the abstract or as to them. In order to successfully oppose a motion for summary judgment, plaintiff must come forward with some admissible proof that would require a trial of the material questions of fact on which his claim rests. Absent a showing of novelty, plaintiff’s action to recover damages for illegal use of "confidentially disclosed ideas” must fail as a matter of law. (See Downey v General Foods Corp., 31 NY2d 56.)

Moreover, prior to any alleged use of plaintiffs idea by defendants, two patents had been issued to unrelated third parties for devices which encompassed the very concepts plaintiff alleges he disclosed to defendants. Therefore, even if we were to assume that plaintiffs idea was novel when disclosed, all novelty was lost with the issuance of these patents because they caused plaintiffs idea to fall into the public domain. (See Platzman v American Totalisator Co., 45 NY2d 910.) Therefore, summary judgment for defendants was properly granted.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.  