The Guac Bug

The Hearing Opens

“Judge.” They still called him that, even though he had retired from the bench over ten years ago. Retirement had made sense, at least at the time. He and his wife Helen had planned an extended world tour, trying to catch up on a dozen vacations they had never taken. And then she had contracted a terminal illness and it had all collapsed. That had been a hard time. To hold himself together he had written a book, he had guest-lectured in the law schools, and he had been accepted as an arbitrator by the American Arbitration Association. And that was the avocation he liked best. He loved being the sole arbiter and judge in a complex case that both parties thought needed immediate one-day resolution, with a final decision from which no appeal could be taken. It was like being the United States Supreme Court, with all nine Justices rolled into one.

He did not sit on a high custom-upholstered chair behind a bench at these hearings—no, generally just a simple office desk and chair,, facing a similar chair for the witness and fold-up tables for the parties. Everything was recorded by closed-circuit video, and video transcripts were available by the end of the session, backed up by the transcripts prepared by the stenographic reporter. There was no ‘bar’ to shut out an open-court audience from the proceedings. Indeed, none was needed, for the public was excluded. He could wear a business suit at the arbitration, of course, like the lawyers, but no, he chose the robe. Black, flowing, authoritative. The tradition of the robe was indeed ancient. It far predated even the Roman fora. One sees it in the friezes of the law courts of the ancient Egypt and in the bas-reliefs of Hammurabi’s Susa. It symbolized four millennia of the peaceful settlement of men’s quarrels. And of this, he, Penfield Grant (“Old Granite”), was still an active part. For which he was grateful, for he dearly loved to umpire these intellectual fights. This one promised to be a good one.

How had they come to select him as arbitrator? Easy. Under the expedited procedures in the Arbitration Rules, a list of five candidates was submitted to each party. Each party could strike two candidates. The parties had stricken a total of four, probably people they knew and thought were biased one way or the other. That had left him.

He had read the pre-hearing briefs submitted by the parties, and he knew it involved technologies way over his head—codes, chemistry, microbiology… Well, he still knew how to listen and how to ask questions.

So, he thought, as Wellington said at Waterloo, let battle commence. He looked over his desk at the two groups. “Good morning, gentlemen.”

His audience returned the greeting, and he continued. “We have for arbitration the case of Catley-Torgsen, whom we will style as Claimant, versus Gruen Pharmaceuticals, Respondent. Normally the Association attempts to complete a hearing in one day, and I understand that is not only acceptable here, but is insisted on by the parties. So we will get right to it. Counsel, will you please identify yourselves.”

“J. Reginald Alfrey, for Catley-Torgsen, Claimant.”

“Quentin Thomas, for Gruen Pharmaceuticals, Respondent.”

“Thank you, gentlemen, please be seated. I presume the other gentlemen are principals and witnesses. We’ll get to everybody in due course. Meanwhile, let me sum up the strictures imposed on this proceeding, as stipulated by the parties.

“There is only one issue: is the process information allegedly coded into American Type Culture Collection Number 06 readily comprehensible to one skilled in the art? If I decide that it is, then in that case Claimant will withdraw its patent application covering the ATCC product. But if I decide that it is not thus comprehensible, Respondent agrees that Claimant’s patent is valid and agrees never to manufacture the product in question.

“Testimony will be limited to the issue as stated. “Claimant opens, completes by twelve noon. Cross examination limited to fifteen minutes per witness. An hour for lunch. Resume at one, Respondent comes on, completes by four. Closing statements, thirty minutes each.” He looked up sharply. “All agreed?”

The two lawyers said, “Yes, your honor.”

“Good, Mr. Alfrey, opening statement?”

“Yes, Mr. Arbitrator. Catley-Torgsen is a very large pharmaceutical manufacturer. We have plants all over the world, with over fifty thousand employees. Our annual research budget is over a billion dollars. As part of our research we developed a new drug which we call ‘Cat-sen.’ This new drug has great potential in the treatment of the well-known devastating viral disease, Bis. Much testing still has to be done, of course.

“If it proves out, we want to go into commercial production. For this we would need exclusivity, which of course means patent protection. So we duly filed for a patent. Respondent Gruen learned about our patent, still pending in the Patent Office. They claim that a certain biological specimen anticipates our patent. The specimen was indeed deposited with the American Type Culture Collection more than a year before we filed our patent. Ordinarily this would be sufficient to invalidate our patent. However in this case no enabling process data accompanied the deposit, so in effect there was no public disclosure, nothing available to one skilled in the art as to how to reproduce or use the specimen. Gruen, however, takes the position that all necessary process data are coded… their word, your honor, into the preliminary nucleid stretch in the specimen, and that the coded description can be readily decrypted by one skilled in the art. We contend that the description is impossible to decrypt and that therefore the specimen does not anticipate our patent. To prove our case, I will offer one witness plus several affidavits. Shall I proceed with my witness?”

“Just a moment.” The arbitrator looked over at the other lawyer. “Mr. Thomas, you can make your opening statement now, or reserve it for your afternoon session. If you give it now, I will extend Mr. Alfrey’s time pro quanto.”

“Later, your honor.”

“Good. Call your witness, Mr. Alfrey.”

“I call Dr. Emil Kintsch.”

John Gordio had introduced Thomas and C-T’s expert witness to each other earlier in the morning, and the Gruen lawyer had detected nothing cryptic about the cryptologist at the time. With his average height, honest brown eyes, friendly smile, Kintsch could pass as a solid citizen, a pillar of any community. And yet, thought Thomas, within a few minutes, with a little help from Reggie, this man of unassailable integrity will begin twisting the truth into fantastic shapes. Sad. It’s the money.