A Game of Chicken

A lone inventor claims Ecolab is waging a dirty fight over clean poultry

Dan Burk, who teaches patent law at the University of Minnesota, says many companies are wary of even talking with outside scientists because of the potential legal pitfalls. "Some companies have become very, very gun-shy and frequently will not meet with small inventors," he notes. "If they do they're very, very careful about the language in the confidentiality agreement."

The legal scholars say Guthery's case will likely hinge on two key factors: the confidentiality agreement and what is called "desk books." Inventors generally keep desk books, essentially journals, delineating their progress while working on an invention. If Ecolab can demonstrate that its own scientists were systematically working on the carcass-sanitizing solution later patented before they were aware of Guthery's work, the company will likely prevail.

Morrison says that such documents are almost impossible to fake because they must be authenticated by more than one person and show scientific progress over a long period of time. "They'd have to have a conspiracy that would be of the sort of the grassy knoll," she jokes.

Morrison also notes that because Guthery did not secure a patent on his invention, by sharing the work with other scientists he put his carcass-sanitizing solution in jeopardy. "As soon as the Oklahoma doctor tells anybody about it he's running a risk that it will no longer be a secret," she says. "And as soon as it's not a secret for whatever reason, his property disappears into smoke."

Because Guthery holds three other patents, one might presume the process was not unknown to him. Morrison says inventors sometimes find the costs of securing a patent prohibitive: Initial fees for filing a patent can run to more than $1,000. In addition most inventors will hire a patent attorney or agent to shepherd them through the process, further driving up the cost.

If Guthery is to prevail in the case, it will likely take many years and many billable attorney hours. There is some precedent, however, for this type of David vs. Goliath patent battle. Peter Roberts sued Sears, Roebuck and Co. in 1969 for patent infringement. In 1964, when he was an 18-year-old Sears employee, Roberts had invented a socket wrench. He sold the rights to the patent on the wrench to Sears for $10,000. Roberts later argued that Sears deliberately underestimated the tool's sales potential, which proved to be in the millions of dollars. He eventually received an $8.5 million settlement from the retail giant in 1989--20 years after the case was filed.

A carcass-sanitizing solution may not have quite the household sales potential of a socket wrench, but Ecolab clearly considers meat processing a valuable market. The company's 1999 annual report notes that its meat-processing division "posted record sales growth" the previous year. Whether any of those profits will filter down to Guthery remains to be seen.

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