Excerpt. © Reprinted by permission. All rights reserved.
• One •
Small towns are defined by their secrets. Some are even haunted by them. There is a communal consciousness that remembers everything no matter how hard people may try to forget. You can’t keep a secret in a place like this, at least not forever.
Marshall is only forty miles from the state’s eastern border but still deep in the heart of Texas. Folks live and die with the Mavericks on Friday nights and seek salvation in church on Sundays. Since World War II, the population has remained unchanged at twenty-three thousand souls. It’s almost as if there’s no incentive to come here, but people can’t find a good reason to leave either.
We have an equal number of white and Black citizens, but the scars of inequality run deep. The ghosts of slavery and segregation still roam our streets. To this day, a statue of a Confederate soldier casts a shadow over the town square.
Behind the bronzed effigy of Johnny Reb stands the old Harrison County Courthouse. Its bright yellow facade, marble columns, and domed top make it our unofficial capitol building. Lawyers love a good courthouse the way players love a good ballpark. It makes us believe that our lot in life is more important than it probably is. The best lawyers in these parts, however, don’t work in this building.
Just beyond the hand-laid redbrick parking lot of the old county courthouse stands another building, another courthouse. It’s a simple beige-and-brown rectangle, thirty feet high, with small columns in front. Its demeanor suggests you need not notice it at all. This is the Sam B. Hall Jr. Federal Building, home to the US District Court. For the past twenty years, the Eastern District of Texas has been the epicenter of intellectual property law in the United States. It is Marshall’s best-kept secret.
For some reason that morning, as I sat at the plaintiff’s table with my client and a team of lawyers from the Chicago law firm of Rosewood & Barkman, I was overcome with a feeling of awe. It was the final day of my final trial for the calendar year, and I found myself in a moment of reflection. As I looked up at Judge Gardner’s wrinkled face, I couldn’t shake the idea that the kingdom he had built was as impressive as it was improbable, and that we all owed him a debt of gratitude.
There had been whispers around the courthouse for months that the judge was contemplating stepping down. People were even speculating that he would announce his retirement that night at the annual Christmas party. I dismissed these rumors as baseless because I believed he would have told me privately if that were his plan. Still, I’d had a sense lately that he was trying to savor certain moments as if they were passing by, never to return. As he glanced in my direction, I wondered if he felt a sense of pride. I was, after all, his protégé. He had crafted me in his image.
“Mr. Euchre?” Judge Gardner drew the court’s attention my way without revealing any affection for me. After I’d spent five days sitting quietly beside my client with nothing to do but ponder the wonders of our universe, the time had come for me to do what I’d been hired to do. I was going to deliver a closing argument.
“Thank you, Your Honor.” I rose to my feet but didn’t button my jacket. I walked toward the eight members of the jury in complete silence. It was the first time they would be hearing from me since they were selected, and I wanted to give them a few more beats. I found my mark and then hesitated, as if unsure of how to begin. Truthfully, I knew every word that was about to come out of my mouth. I was going to deliver my patented “Ford pickup” closing. As a matter of legal fact, a collection of words, such as a speech, cannot be patented but rather copyrighted. Suffice it to say, it was my favorite summation.
“When I was fifteen years old, the widow who lived next door to me decided to sell her late husband’s truck. It was a 1964 Ford F100 with a cracked windshield, missing fender, and dented grill. Its original Rangoon Red paint job, which perfectly matched the high school’s colors, was peeling and had faded under the sun. It was the most beautiful vehicle I’d ever seen.
“I struck a deal with the widow. In one year, I would buy that truck for twenty-four hundred dollars. Bagging groceries at the Piggly Wiggly for three thirty-five an hour wasn’t going to cut it, so I got a paper route and started mowing lawns on the weekends. I took any odd job I could find, and for one year, I didn’t spend a penny unless I absolutely had to. Where most boys would keep a picture of their girlfriends in their wallets, I had a photo of this old truck, a reminder of what all the hard work was for. The best day of my young life was when I emptied out my savings account, handed my neighbor all twenty-four hundred dollars to my name, and became the proud owner of a Ford pickup. When I got behind the wheel, a feeling of achievement washed over me. I’d never felt that way before.
“Two weeks later, I stepped outside my home with the keys in my hand and discovered that the driveway was empty.” I paused here, as if overcome by the memory.
“I’m embarrassed to admit how many minutes passed before I accepted the reality. I’d never owned anything, and now my one possession in the world had been stolen. For weeks, I kept my eyes peeled, hoping I’d spot my Ford abandoned somewhere, just waiting for me to rescue it. Then one day I get a call from Detective Elliot. He says they think they may have found it up in Marion County, but before they go and accuse someone of grand theft auto, they want me to confirm that it is indeed mine.
“So Detective Elliot drives me to Marion, and we pull up to this ratty old house with weeds for a yard, and there, parked right in front for all the world to see, is a 1964 F100 with a cracked windshield, missing fender, and dented grill. I jump out of the cruiser and run up the driveway. Just then, a man in his twenties comes out of the house and hollers at me to get off his porch. I move right to him, fish my wallet out of my pocket, hold the photo of the Ford up in his face like it’s a police badge, and declare, ‘My name is James Euchre, and that is my truck!’
“The man looks at the photo and then back at me and says, ‘That can’t be your truck. Your truck is red. That truck right there is black.’ ” I paused again, allowing the audacity of this comment to infect my listeners.
“Not only had this man taken my vehicle, but now, caught dead to rights with my property in his possession, he had the nerve to deny everything because, after he had stolen my beloved truck, he had covered that original Rangoon Red body with a cheap coat of black paint.”
For all of the flaws in our legal system, the one thing that we got right was entrusting ordinary people to dispense justice. Even in a field as complicated as intellectual property law, we put our faith in common citizens. Patents can be incredibly complex. It often takes an advanced degree in electrical engineering or microbiology to understand how something works, let alone whether or not the idea behind it was taken from someone else’s design. The lawyers from the firms on both sides of this case had spent the past five days asking these jurors to think. In my first five minutes, I had asked them to feel.
Every one of us has a different capacity to understand information based on who we are, what the subject matter is, and how our education and intellect relate to the issue at hand. What makes us alike, what makes us human, is that we all experience the same range of emotions—the same fear, the same love, the same rage. My job was to distance the jurors from the complicated facts of the case and remind them how it feels when someone takes what is rightfully theirs.
I loved my Ford closing for a lot of reasons, but principal among them was that it genuinely enraged me. By the time I was done talking about the bastard who stole my truck, my own blood was boiling. And emotions are transferable. Of course, I would ultimately bring my discussion back to the issues at hand, but not until every one of those jurors was thinking about their own experience of being wronged—that time someone hit their car and didn’t leave a note, the day their boss took credit for their hard work, that moment when they were victimized by a faceless thief, never to be made whole again. Once that courtroom was overflowing with rage, I turned our collective attention to my client, the plaintiff who was wronged in this case, and I gave the jurors the power to make it right.
I stepped toward the plaintiff’s table. Typically, I represented corporations, but in this case, my client was a home economics teacher with arthritis from Skokie, Illinois. Over the years, as Marta Sexton’s condition had worsened, her doctors had prescribed her more and more medication. One day, her hands were in so much pain that she could no longer open her childproofed pill bottle. Frustrated but not defeated, she conceived of a new design for a medicine container that didn’t take much force or a strong grip to open but was still impenetrable to a young person’s inquisitive paws. Inspired by a combination lock on a high school locker, she sketched a design that required a person to line up three designated spots on the pill bottle with three corresponding points on its twisting cap. Once all three arrows on both components were aligned, the top would lift off easily. It was something that any patient could use and no child could hack. Thankfully, Mrs. Sexton filed for a patent.
The United States Patent and Trademark Office is located in Alexandria, Virginia, and is an agency within the Department of Commerce. If you have an invention, or if you have a design for an invention, or if you have an idea for a design for an invention, you can apply for a patent. If someone or some company infringes on that patent, you can sue them in federal court. Which federal court? That’s the billion-dollar question.
One day, Mrs. Sexton was walking through the Hartsfield-Jackson airport in Atlanta when she stopped at a kiosk that sold phone chargers, candy bars, and other travel accessories. On one of the shelves was a variety of medicines. She thought it would be a good idea to take an aspirin before flying. So she bought a bottle of pills and some water and went to her gate. As she prepared to board, she removed the pill bottle, and lo and behold, it was childproofed. To the untrained eye, it may have looked like any other medicine container. But my client saw something different. She understood the specs, the modifications, and every working component of this little plastic contraption right down to the familiar three-part locking mechanism. Her blood, sweat, and tears had gone into inventing this design that someone, or rather some company, had stolen. When her plane landed at O’Hare, her first call was to Rosewood & Barkman.
The company that created the medicine was headquartered in upstate New York, while the pill bottle itself had been manufactured in a factory in Seattle. It was well within Mrs. Sexton’s rights to file her patent infringement suit in either the Northern District of New York or the Western District of Washington, but that was the opposition’s home turf. She also could have filed suit in the Northern District of Illinois, her own backyard. All of these options would have made a lot of sense since these were the venues where the item was invented, where it was stolen, and where the company that profited was based. But what about the Atlanta airport? When an employee at that kiosk put one of those products on their shelves, a product that contained my client’s intellectual property, that was an act of patent infringement. Of course, she wasn’t going to sue the owners of a little kiosk because they don’t have deep pockets, but that didn’t matter. What mattered was this: a lawsuit can be filed anywhere in the country that a single act of patent infringement has occurred. Since Mrs. Sexton was the wronged party, it was her choice where to file suit. With all the kiosks in all the airports in all the country, the options were almost limitless. The best option though, at least for the past twenty years, has been the Eastern District of Texas. The reason is Judge Gardner.
