Sorry for my absence...

I've been working on the below, which now I give to you, my first and one hopes not only, contribution of a longform piece to Books Inq.

I am a patent lawyer, which is not an opening sentence you’ll often encounter.   Patent lawyers deal in words, making the intangible tangible, modeling an invention in words and drawings and maybe computer code, or formulas, or words and sentences, like variables and equations, in other specialized languages, like math. To write a patent is best described as an art form; involving all sorts of judgment calls, balancing legal positives with negatives: what words can be used and how they can be used to define the invention. Words are imprecise, unlike math, so it is an art to use the right words, the right and most accurate and most valuable words you can.

My father, who is also a patent lawyer, and at the age of 88 still practicing patent law today, had written a patent for his client, the largest manufacturer of building materials in the country.  Let’s assume that the patent involved a product the company made, like a building component, like a metal stud for a wall.  Metal studs are made from an enormous roll of metal, like a huge roll of sheet metal toilet paper, 12 foot in diameter, which then gets chopped and folded and cut on an assembly line, then cut, and crimped and folded and fastened on another assembly line to form the 8 foot long metal studs you see at your local home improvement store, or in buildings, especially those warehouse type corrugated metal buildings, those low and flat and long buildings containing who knows what inside, legal and illegal, where the metal studs are visible from the inside.

My dad’s patent, like all patents, ended in one or more claims, which is a single sentence he wrote defining the invention for legal purposes, like this:

Claim:   The process of making a metal stud for walls, being made out of a roll sheet of metal, comprising:

 - cutting pieces into desired longitudinal lengths;

- folding and crimping said shapes to form metal stud shapes; and,

- fastening said metal stud shapes by striking longitudinally opposite sides of said metal stud shapes together, resulting in a friction type fastening at spaced intervals along said stud.

The link is to an Wikipedia article on assembly lines; assembly lines implement the words of the claim in real time. 

My dad had chosen his words carefully, through his practice of the art of capturing a tangible thing in words, with legal effect, trying to create worthwhile, valuable words for his client.  One of those words he used was “striking”. 

And that becomes important in a second. 

Shortly after the patent issued, a competitor (“Company X”) started using the same method.  Or so we thought, because we didn’t know what its assembly line looked like, but we had hints through examining the metal wall studs Company X produced and sold though its process.  The Company X studs had certain tell tale marks that our engineers felt was evidence of use of our process, silent witnesses to their method of construction,

So we wrote them a letter, this led to that, and before long we sued Company X.   And that is where I became involved because I do litigation as part of my practice.

WE sued Company X – the second largest building materials maker in the country, right behind our company, and a fierce competitor -- because we thought its assembly line method infringed, that is, the method it was using infringed my dad’s claim because Company’s X process struck its metal. 

X’s defense was seven words: We squeeze we don’t strike.  Not liable.

Or, as described in claim language:

The process of making a metal stud for walls, being made out of a roll sheet of metal, comprising:

 - cutting pieces into desired longitudinal lengths;

- folding and crimping said shapes to form metal stud shapes; and,

fastening said metal stud shapes by squeezing at least two longitudinally opposite sides of said metal stud shapes together, resulting in a friction type fastening at spaced intervals along said stud.

The next two years were spent in the grinding work of pre trial practice: the proceedings, known as discovery, to gather evidence to support one’s position.   Millions were spent and millions were at stake trying to prove the meaning of the two words which, not incidentally, could be defined by the dictionary as two different things.  But that wasn’t what we wanted.  We wanted what Company X was doing to be defined as striking.

Finally, it was time – after traveling across the country, at one point from city to city throughout the US for six weeks straight, my dad at my side, (which was, frankly, a blessing and a curse,) looking at assembly lines, blueprints and documents, asking questions of witnesses -- for me to depose Company X’s expert.  We had flown in the night before, into Sacramento, California, which is an old western manufacturing town, wide and flat streets with thousands and thousands of linear feet of warehouse type corrugated metal buildings; those low and flat and long buildings containing who knows what inside, legal and illegal.  Buildings that used our metal studs.  Miles and mile of our studs. 

X’s expert, let’s call him Bob, was a patent lawyer too, like my dad and me.  We deposed him in a converted hotel room the next day in Sacramento.   He knew all about the reason he was there – to define his client’s word for its process.  Bob was older than me, anxious to show off a little.  He was Company X’s  in house patent counsel too, which meant his job was directly affected by how well he did here.  But Bob knew that Bob couldn’t lose.  All he had to do was keep to the party line, X’s process squeezed not struck, unshakeable because he was providing an expert opinion.

The deposition was in a hotel room in Sacramento, a converted office table which for some reason had a checkerboard tablecloth, like a picnic one, over the top of it, when I walked into the room.  I liked it.

It was sunny in the room, but I had drawn the drapes.  They didn’t close fully so we could see the part of the wall of the building next door through the crack.  It was one of those corrugated metal warehouse buildings, shining in the sun.

We faced each other across the table, the reporter at Bob’s side, tasked with recording the proceedings.    On one side are Bob and his outside counsel.  On the other were me and my dad.  I could tell my dad was a little nervous, hoping like hell that I had something as he didn’t really want to try to have to carry the case at his deposition.

Sometimes you have the table so that the witness is looking at the window, thus tiring him out and slowing his comprehension so you could trap him better.   This table wasn’t set up that way, it was perpendicular to the window, so neither side looked directly out the windows and I was okay with that too.

I knew I had him. 

We started, and after about a hour and a half on general matters, my goal making Bob more and more comfortable, it’s time for me to get my word out of Bob:

ATTY CHOVANES [ME]: Sir, you have said in your discovery responses that your process doesn’t strike, rather it squeezes.  Are you familiar with those responses and that position?

WITNESS [Bob]: [leaning over the table at me]: Yes I am.  Are you?

ME: Why yes I think I am and you understand you are here to testify in support of that position?

Bob: Yes.  [Here the reporter noted: “table slapped for emphasis.”] Yes!

Bob chuckled and his outside counsel chuckled.  They were feeling good.

ME: I want you to draw a x-y graph, f is the y axis and x is the time axis, of a strike.  Here is graph paper and a pen.

Bob: What? [He looked at his lawyer for guidance.  The lawyer shrugged and made a go ahead sign.  ]

And what Bob drew looked like this:

And I asked him to label the graph with the exhibit number and then initial it, which was a little cruel of me, my dad later told me, because the guy was happily signing, at my encouragement, the first document in his own evisceration.

ME: Now I want you to draw an x-y graph, using the same parameters, of a squeeze. 

And Bob, now seemed to think I was giving him the opportunity to win the case; because he could show a really really big different between squeeze and strike as a function of time, enthusiastically drew something like this:

Bob’s lawyer bestirred himself.  Cause he was bored. 

[BOB’S LAWYER]: Counsel I want to object, this is highly irregular, having the witness draw pictures like you are doing here.  Moreover, from the nature of the pictures I’d say you are just obtaining further support for my client’s expert opinion on the a matter at hand.

My dad stirred as if he was going to say something.  I kicked him under the table.  I ignored the outside counsel.  I brought out my drawings.

ME:  And here is a representation of striking over a time frame leading to 1 second, do you agree? [and handed him something that looked like this:]

Bob was a little puzzled I had pulled out a predone exhibit at this point, with a drawing that logically extended his drawing, but nonetheless he said yes.

ME: And this next exhibit looks just the same as the last one I gave you but its number 18:

And you will agree it shows generally accurately squeeze over a time frame leading to one second, using your process?

Bob [all of a sudden defeated.  The charts were identical.  Squeezing was striking at the speeds of the assembly line.  The word had meant what we’d said it meant – in real world application.]: Yes. 

And earlier we established that both assembly lines, plaintiff’s and defendant’s, travel about the same speed correct?

Yes.

So these drawings can be used interchangeably as a generally accurate picture of either sides’ process?

Yes.

At operational spends for all practical intents and purposes the processes are identical?

Yes.

So your process can be said to strike within the words of the claim? 

Yes, he said, because he knew now where he’d been led, hung his head a little, and he and outside counsel I let leave shortly thereafter.  The case was done, we had won, Bob had given me what I wanted by defining the word the way I wanted. And the case settled the very next week for an amount I can’t reveal in this matter: the matter of a most valuable word.

My dad was happy.  I was happy because I had delivered a tremendous outcome to my client.  And as the years have gone by, I have realized something even neater, even more striking about the value of the word my dad had chosen and so had given me.  It is around me when I am in a house, or office or school, or warehouse, any building with walls held up by metal studs, to me each one, each metal wall stud faintly echoing to me the words of his art.