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DBL%20Hendrix%20small.png College chemistry, 1983

Derek Lowe The 2002 Model

Dbl%20new%20portrait%20B%26W.png After 10 years of blogging. . .

Derek Lowe, an Arkansan by birth, got his BA from Hendrix College and his PhD in organic chemistry from Duke before spending time in Germany on a Humboldt Fellowship on his post-doc. He's worked for several major pharmaceutical companies since 1989 on drug discovery projects against schizophrenia, Alzheimer's, diabetes, osteoporosis and other diseases. To contact Derek email him directly: derekb.lowe@gmail.com Twitter: Dereklowe

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« Chronic Fatigue: Enough Energy Left for Death Threats, Anyway | Main | Hard, Hard Work in the Lab »

September 6, 2011

A Dish Best Served Cold

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Posted by Derek

And the well-known chem-blogger Milkshake knows how to serve it. See his latest post here. It doesn't qiote make up for having one's company bought out, having everyone moved and fired and hosed around, and having to go to court for the severance package that you were promised. . .but you have to take your pleasures where you can.

Comments (37) + TrackBacks (0) | Category: Drug Industry History | Patents and IP


COMMENTS

1. pete on September 6, 2011 4:14 PM writes...

Quite a saga. I wonder if companies can put language into employment agreements that can legally compel severed ex-employees to assist in corporate patent inquiries, even if they occur years after date-of-severance. Not being a lawyer, I don't know this would stand up in court.

--- OK, maybe it could in Rick Perry's version of the worker's paradise, but how about everywhere else ?

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2. Cold Dishes on September 6, 2011 4:22 PM writes...

Warmed the cockles of my little heart did that story.

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3. milkshake on September 6, 2011 5:05 PM writes...

Derek, thank you for mentioning this - now there is quite a deluge.

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4. Pfired Before on September 6, 2011 5:20 PM writes...

To pass on to Milkshake:
Congratulations on your position. Too bad more of us similarly disposed of don't have the opportunity to inform our former employers of the consequences of their choice to terminate their human intellectual "property".

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5. Anonymous on September 6, 2011 5:53 PM writes...

Wow, this guy is a friend that I never knew I had. Thanks for standing for so many of us!

...A sign to come of a more tight-knit community (among researchers)?

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6. Greg Hlatky on September 6, 2011 5:58 PM writes...

It takes courage to leave that much money on the table when you could be charging a hefty fee (a drop in the bucketful of litigation costs) to consult for your former employer. Pecunia non olet.

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7. Sisyphus on September 6, 2011 6:16 PM writes...

For curiosity and future reference, what fees (amounts) does one demand for such a deposition?

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8. milkshake on September 6, 2011 7:02 PM writes...

Considering that the price per dose of this drug divided by its manufacturing costs must be a number with a whole bunch zeros behind it, and since the patients who are taking it are a very captive consumer base, typically terminal patients who are trying to extend their lives, and since the drug costs are so high that many health insurance companies refuse to cover the drug in full and they impose huge co-pays on the patient... But no, I have no clue what the consultants charge.

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9. NH_chem on September 6, 2011 7:05 PM writes...

That is absolutely awesome. Good for you!!!

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10. drug_hunter on September 6, 2011 7:25 PM writes...

@1 (Pete) - Not a lawyer, but I don't see any way after you're no longer an employee you could be compelled to work for free. Curious to know whether anyone has more informed opinions.

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11. partial agonist on September 6, 2011 9:13 PM writes...

not a lawyer, but...

In a civil or parent dispute case, you may be subpoenaed by a judge to give in-court or out-of court testimony, but it is far more rarely done than in a criminal case.

It would have to be abundantly clear to the presiding judge that major points in dispute can't be adequately analyzed by other experts.

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12. pete on September 6, 2011 9:47 PM writes...

@11 partial
Thanks.

Still, I wonder if, similar to the persistence of a non-compete agreement -- which everyone ignores, companies can link patent authorship to an explicit agreement (requirement) to assist in any later patent disputes.

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13. BariTony on September 7, 2011 7:16 AM writes...

pete,

I don't see how that would work. Patent inventorship isn't passed as a reward for good behavior, like many managers do with inappropriate authorship. Inventorship as I understand it is a clearly defined legal term. The company has to put all of the inventors on a patent, and can't include people just as a reward, or they invalidate the patent. If I understand this correctly, companies can't use such an agreement as a carrot and deny patent authorship if you refuse to sign.

Which brings up an interesting point. I worked for one CRO that invented quite a few clinical candidates. They had a habit of not always including all the inventors if they were 'bad employees', and including scientists as inventors who had no contribution to the invention as a reward for good behavior or productivity in other areas. I always thought they were playing with fire. Given the number of compounds in the clinic, I'm sure that some of them will make it to market. And they treated people so badly when they laid them off, I'm sure that some original inventors will be more than happy to testify against their former employer, thus invalidating the patents. Some of the companies we partnered with are going to get an unwelcome surprise if this happens.

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14. Will on September 7, 2011 7:19 AM writes...

I hire experts/consultants for patent litigations in the pharma field all the time. We usually try to get academics, rather than full-time consultants. For an associate professor level expertise, the rate is usually between about $300-$600 per hour. For more nationally prominent experts, it can easily exceed $1000 per hour. I know of at least two people that simply charged $10,000 per day, regardless of whether they worked 8 hours or 30 minutes.

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15. Will on September 7, 2011 7:27 AM writes...

BariTony - improper inventorship is a correctable mistake, providing the company can demonstrate that the mistake was made without deceptive intent. So even if the ex-employee was able to prove he should have been an inventor, it's not fatal to the patent unless he can also prove that he was intentionally left off the inventorship, which might be a high burden to meet. I'm not aware of any cases in which a disgruntled former employee scuttled a patent, but it could have happened

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16. A Nonny Mouse on September 7, 2011 7:49 AM writes...

A couple of "expert witness" anecdotes.....

Jack Baldwin was asked to be an expert witness in a case, but wasn't interested. When pushed what it would cost to get him he said "a Porsche". There was a call the next day to ask what colour he wanted (I don't know if it is true but it is often recounted by the person below).

A friend was on his first case as an expert witness and was told to double his daily rate as they had to reveal his fees to the opposition and it would give a bad impression of his ability at the cheaper price! Six years and the case is still going on even though the product is now generic

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17. SP on September 7, 2011 9:37 AM writes...

I know an ex-Pfizer manager who charges 10k/day, and it involves foreign travel so he charges that per day that he's away from home, even if testimony is only one day. No push back at all from the mothership.

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18. quintus on September 7, 2011 10:01 AM writes...

Thanks for posting this Derek.
Well done to Milky, good for you

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19. Rock on September 7, 2011 10:15 AM writes...

Ironically, the day of this post I received yet another package of patent assignments to sign (including witnessing and notarization) from my former company. Wonder what my options are as I am getting a bit tired of this given it is the ~8th package I have received since getting Pfired two and a half years ago. Once they didn't even include a return FedEx envelope.

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20. partial agonist on September 7, 2011 10:44 AM writes...

pete #12

As far as I know, a company cannot compel the inventor to do anything.

The judge can, however, decide he needs to hear from a certain inventor and issue a subpoenea. The only scenario I can imagine that happening is if there is only one inventor, or if only one inventor was involved with a particular procedure or example described in the patent, and also if no other expert witness can be expected to adequately understand the procedure or example.

In short, the odds of that happening would be slimmer than slim.

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21. pete on September 7, 2011 11:30 AM writes...

thanks all.

@13 BariTony: I've also seen corporate hanky-panky in the bestowing inclusion on patents. The greater the estimated importance of the patent (*ka-ching*), the more employee 'loyalty' played into it, irrespective of true authorship.

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22. newnickname on September 7, 2011 11:57 AM writes...

Rhymes with "Mergers and Massacres" ... I'm blanking on that. Bought out, merged ... I'm trying to remember a company that doesn't exist any more. Any other clues, please? How about their old stock symbol? Top drug? I'm even looking at a list of top selling drugs from $400 MM on up. Nothing. Help.

I've had employment contracts that DO stipulate that I will be expected to followup with patent or legal work with compensation at a reasonable rate. I don't recall the wording or how forceful it was. I mean, what are they going to do, fire me again? :-)

As for the rate, how about asking what the highest paid lawyer on the team is making and double that. I don't know current fees, but patent lawyers at the Big Firms were billing $600 or more per hour. Patent LITIGATORS were billing even more than that, a lot more.

Storytime: There was a Big Pharma with a Multi-Billion Dollar Molecule (a top 5, actually) and a foreign generic company improved the synthesis by a lot. The Big Pharma paid to license the new method and used it to manufacture the drug for many years. As the patent was winding down, the Generic Company started to get into the fray and prepare for a launch. Per usual, Big Pharma tried to slow them down. They filed patent infringement on their process patents (still in force) because the Generic patent wasn't novel and was the same as their own process. Generic Co. argued, "Then why did you pay to license our patent process for the past several years?" Generic Co. won the case. And the chemistry really WAS so different that even a judge could understand it.

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23. johnnyboy on September 7, 2011 12:41 PM writes...

@22: I don't know Milkshake or his former place of employment, but my guess was that the rhyming was with the singular form of these words, i.e. ending in '-er'. Which would point to a very usual suspect...

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24. newnickname on September 7, 2011 1:40 PM writes...

@23: Doh! First, I thought he meant a double named company like "??ers and ??ers". I also thought he meant that it was the acquired (disappearing) company, not the acquiring company.

Then there's the "severence" hint. There is a Big Pharma with an "??er" name that was recently being sued over severance. I guess that pins it down.

All I know is, at $600+/hr, the lawyers are loving it all.

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25. CMCguy on September 7, 2011 3:01 PM writes...

Based on the title here would imply Milkshakes motivation is Revenge (as common saying connection) but he clearly addresses that is not the case in his comments section. While I admire the attempt made I have a hard time seeing any substantive outcome on what he did, unless consider a prompt for lawyers to tell chemists jokes. US Pharma Management seems to have gone irreversibly done a road where R&D is disposable or outsourcable as no longer being an asset but only a cost center. Lawyers, IP ones in particular, tend to fit the stereotypical guns for hire so any statements to such will get lost unless deemed of direct value/determent to the position.

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26. f-GSK on September 7, 2011 4:05 PM writes...

I can respect milkshake's stance, but having been in the same situation, I know I was conflicted in wanting neither the generic company (whose business model is to hire lawyers instead of scientists and just challenge every patent on any drug with sales over $500M) nor GSK to win (whose new business model is to fire all inventors of their drugs and invest in making highly suspect biotech's rich). In the end, I decided to help defend the patent because it was my work and I knew it was valid - though I found it emotionally draining to be back on the 'GSK team' after being made redundant by some pretty clueless R&D directors. I'm still not sure I did the right thing.

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27. Anonymous on September 7, 2011 5:21 PM writes...

@19. I know whereof you speak. I've gotten a fill of them myself. What I find particularly distasteful is that the cover letter always states something along the lines of "The requirement that you assist us in patent related issues was a condition of your past employment and survives your termination. You are required to assist us by providing us with details about any significant developments that you are aware of since the application was filed etc, etc, etc.....

It is interesting how during the "reorganization process" there is heavy use of euphemisms such as "separated" but once they shut the door, all correspondence uses the much less euphemistic, "termination".

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28. KW's hairdresser on September 7, 2011 6:23 PM writes...

@26 When in doubt, stick it to GSK. Trust me they would not hesitate to do it to you. Your screen name sums up my feelings for them.

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29. cliffintokyo on September 7, 2011 7:31 PM writes...

There are many ways for powerful organizations to retaliate by subtle and cowardly, dastardly means. Think - bribes to neighbors to complain to authorities about your house/ garden/ pool/ cars/ friends, or to teachers to harrass your kids a school - the possibilities are endless.
Psychological torture gets to even the sternest of personalities; why did RBW commit suicide?
Fully support your stance but take care, good buddy.
Maybe wiser to just take the money (from the highest bidder, of course). It is just a *tool* to "them", as some of the comments illustrate, but it is life-blood to you and yours.

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30. hypnos on September 8, 2011 12:45 AM writes...

Under the german law on employee inventions ("Arbeitnehmererfindungsgesetz"), a company has to compensate the original inventors with a (small) fraction of the money they make from a patent. [Even if they no longer work for that company.] I think that this helps all involved parties in the long run.

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31. MIMD on September 8, 2011 4:56 AM writes...

Bravo to Milkshake for having a pair. Seems like a number of posters here have that condition seen on TV known as “Low T.”

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32. cliffintokyo on September 9, 2011 1:39 AM writes...

@31
Bravo indeed, but you would have Low T if you had the local hoods, snitches & rumor-mongers on your case....

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33. Anonymous on September 9, 2011 6:54 PM writes...

@32

My comment should have said:

"Bravo to Milkshake for having a pair. Seems like a number of posters at Milkshake's site have that condition seen on TV known as “Low T.”

I posted the same comment there, then copied it here.

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34. MIMD on September 9, 2011 6:58 PM writes...

@33

Sheesh. I'm out of sorts. What I meant to write was that the comment at #31 is what I posted to Milkshake's site, then copied here.

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35. The Oncoming Storm on September 10, 2011 7:56 AM writes...

No surprise that none of the original team are still employed by the company. Feels like par for the Industry after all the downsizing.

So milkshake's situation looks like becoming a lot more common, and his response may prove extremely measured and forgiving compared to that of others...

For those still working in the Drug Discovery, expect to be signing something new from Corporate Legal in the near future.



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36. bioc on September 10, 2011 12:57 PM writes...

@30, hypnos:

I think that used to be the case in Japan also, but the law was changed after Shuji Nakamura's multimillion dollar award.

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37. milkshake on September 10, 2011 5:51 PM writes...

You can write a policy that requires employees to help the company in patent litigation in the future (even when they are no longer with the company). But my guess is that it would be a pretty useless policy for all practical purposes.

Imagine a disillusioned ex-employee getting a threatening letter from the company attorneys: "We asked you to help us but you refused even though a decade ago you signed this piece of paper that says you will. We strongly urge you to reconsider". I wouldn't be surprised if the ex-employee so compelled chose to "help" in the most obnoxious way he can manage. He provides assistance alright but his memory is not so good. At the same time, the company cannot force him to sign a new confidentiality agreement. It is difficult for the company to prevent him from giving assistance to the opposing parties in the litigation or from talking to the Forbes magazine.

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