The Guac Bug

Lunch

It was The Club. It had no other name. It was the kind of restaurant where reservations were required even for a cup of cappuccino, the napkins were as thick as towels, the maître d’ wore a pince-nez, and the calories were stated for everything on the simple linen-paper menu.

Quentin Thomas had eaten here before. He rather enjoyed the show and the sham, which he considered better than the food.

The four sat around the table, finishing coffee. John Gordio, president and CEO of Catley-Torgsen, and his longtime attorney, J. Reginald Alfrey, sat opposite Thomas and Gruen.

Thomas found the two executives an interesting study in similarities and contrasts. Both were wealthy. With his client it was old money: everything had been handed to him on a platter. The other had clawed his way to the top and now mostly delegated the clawing to underlings. Both exuded power. With Gruen it was quietly understated; one had to look twice. Gordio wore it like cologne.

“Shall we cut to the chase?” Gruen said.

Gordio nodded slightly. “Umph.” He was not a tall man, and though not actually fat, he did not carry his excess weight gracefully. He waddled. If you were a woman, thought Thomas, you’d be six months pregnant. He was not surprised to learn that Gordio was addicted to pizzas “with everything.”

J. Reginald Alfrey, on the other hand, looked trim and sat elegantly erect. Probably got up at seven and jogged, thought Thomas. Which maybe I should get into. After this is over. Maybe.

Gruen continued. “You’d like to build a fifty-million dollar plant to make Catsup.”

“That’s Cat-sen,” Gordio corrected mildly. “Jealous competitors love to mispronounce it. Cat-sen, Walter. From our corporate name, Catley-Torgsen. But you’re right, we’d like a build a big plant to make it.”

“You would need exclusivity,” Gruen said.

Gordio took a sip of coffee, peered in Gruen’s general direction. “Of course.”

“A strong patent,” Gruen said. The other executive grunted. Gruen said, “John, you cannot get a strong patent for your Catsup, at least not in the U.S.”

Gordio smiled faintly. “You mean because of your ATCC?”

He looked over at Alfrey, lifted a shoulder slightly.

Alfrey said, “Walter, no American court would consider your ATCC an anticipation of our patent. You failed to file a description with your specimen.”

“Beg to differ, Reggie. The front end of the RNA is the process description. Gives full details of the product, its isolation and use. Granted, it’s in code, but it’s readily decipherable.”

“Code?” said Gordio. “Really? Hm.” He exchanged glances with Alfrey.

The lawyer shrugged. “We thought maybe that’s what it was. But we didn’t have the key, we couldn’t decipher it, and we let it go. Anyhow, by then we had completed our invention. Why do you mention your ATCC?”

“Because,” Gruen said, “just now, ATCC 06 is a sword of Damocles hanging over your patent. If a court says one skilled in the art can read that code, ATCC 06 is a good disclosure, your patent is anticipated, and Catsup is wide open, and you have no monopoly.”

Gordio studied him dourly. “Walter, let’s not be stupid. Bis will be a twenty-billion-dollar a year market. I want it. Just me, Walter—not you, not anybody else. Don’t mess with my patent, Walter.”

There was a grim edge to Gruen’s smile. “Twenty billion is nineteen billion clear profit, John. There’ll be lots of poor people who can’t pay, and they’ll die. My way, they can live, and you and I can still stay in business. C-T is doing well right now, with no Catsup. You don’t need exclusivity.”

“The Board meets next month,” Gordio said, “and they’re going to authorize the new Cat-sen plant.”

“We doubt that very much, John. Quentin?”

Thomas said, “Tomorrow morning we are filing a petition for a Public Use Proceeding in the Patent Office, under 37CFR 1.292.”

“Public… use… ?” The C-T executive looked blank. “Reggie…?”

Alfrey frowned. “Public Use… rarely used, but it’s in the rules. Basically, if somebody thinks he knows of a public use a year prior to your filing date, he can demand that the office hold a hearing. Really no problem, John. They’d have to prove that one skilled in the art could easily read their coded process description.”

“So we’re not worried?”

“No, we’re not worried.”

“And we can get a decision out of the Patent Office in time for the Board meeting next month?”

Alfrey looked unhappy.

“John, Reggie,” Thomas said, “Public use proceedings are now running about two years, from date of filing to final decision.”

Gordio said sourly, “Walter, this is blackmail. Can we deal?”

“You mean, a quick decision, yes or no on your patent?”

“Yeah.”

“Fine with me. What did you have in mind?”

“Reggie?”

“How about arbitration?”

Gordio frowned. “Could they win?”

“Not likely.”

“Quentin?” Gruen said.

His lawyer shrugged. Everything would depend on readability of the code. Was Mary Lacey right? Could one skilled in the art readily decode the description? Very probably. It truly was a simple thing. And any way you looked at it, arbitration was Gruen’s best chance. He said quietly, “Try this. Okay, if we arbitrate. But if the arbitrator finds that the coded description on ATCC 06 is readable by one skilled in the art, C-T will withdraw their patent.”

Gordio and Alfrey studied each other a moment. “Okay,” the executive said. “Provided—if this arbitrator fellow finds ATCC is not readable by… by…”

“By one skilled in the art,” Alfrey interpolated.

“Yeah, then you agree that our patent is valid and enforceable, and that ATCC 06 infringes.”

Thomas looked at Gruen, nodded.

“Agreed,” Gruen said.

“Now, about the details,” Alfrey said. “I suggest that we submit the question to the American Arbitration Association, go by their rules; it’ll be a one-day hearing, testimony under oath, and limited to the question of readability of the code. We take the morning, you the afternoon. Or reverse—we don’t care.”

“Quentin?” asked Gruen.

“Sounds fine. Let Reggie draw up the papers.”

Two weeks later the lawyers had agreed on the time and place for the arbitration and had exchanged witness lists. Alfrey sent Thomas a list naming thirteen witnesses—one to testify live and twelve by affidavit.

As the sole witness for Gruen, Thomas had retained Dr. Louis Ulnar, a well-known biology professor at Georgia Tech. The expert was scheduled to fly up to Baltimore-Washington International the night before the hearing. Ulnar had reported that he had easily decoded the process data on ATCC 06 and would so testify.

And now Thomas had a problem. He reviewed mentally the steps taken over a year ago by the staff at Gruen to deposit the specimen of Anti-Bis at ATCC, and especially how the printed process data had failed to arrive at the depository. Blake had sent the packet by a young employee who worked in the mail room. It was pretty clear to Thomas that C-T had bribed the boy. Walter Gruen agreed with him, but pointed out that they could make no accusations without proof. When the lawyer hinted that the flawed messenger might be but the tip of an infiltration iceberg, and that market pressures might push C-T into inflicting even greater damage the executive hinted that Thomas was paranoid.

Maybe I am a little paranoid, thought the lawyer. But suppose I were J. Reginald Alfrey, totally without scruples, with an unlimited budget, what would I do to make sure C-T wins the arbitration?

He continued the thought. Professor Ulnar is our sole witness, and the hearing must be completed in one day. Alfrey merely has to delay Ulnar’s departure from Atlanta for twenty-four hours, and he wins. Outright murder? Probably too risky. Anyway, Alfrey is not the type. Still… twenty billion… it gets dicey. I’ll have to call Ulnar, tell him the risks as I perceive them, give him a chance to change his mind.

Suppose he decides to come on up anyway? And they stop, him? Or suppose he decides—maybe at the last minute—not to come? Either way, I’m going to need an alternate witness. A very secret emergency witness. No one at Gruen will know, not even Walter. How do I make sure my alternate gets past Gordio’s goons? A challenge!