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Mobtown Beat

Blowing Smoke

A lawsuit over tobacco patents goes to the jury

Tim Hill

By Chris Landers | Posted 6/17/2009

There are dozens of lawyers attached to the court case Star Scientific v.. R.J. Reynolds tobacco company, and it is possible that all of them are packed into courtroom 5C at the Baltimore federal courthouse on Monday, June 15.

Blackberrys and iPhones buzz and chime softly in a sea of dark suits. Notes, folders, and breath mints are passed back and forth among the benches. Every once in a while, a dispute breaks out over a stolen seat.

"You can't even go to the bathroom," someone in the back observes. "It's not right."

"That," comes an answer, "is why I wear Depends to these things."

A softly threatening voice, somewhere in the middle: "If it happens one more time, I'm going to get upset. And then when we leave here, we'll see what happens."

Whatever it is, it does not reoccur.

The attraction of the day is a patent-infringement lawsuit brought by Star, a small, Virginia-based tobacco company, against Reynolds, one of the giants of the industry.

"It's not the patent law that makes the case interesting, though," says Lawrence Sung, the director of the University of Maryland Law School's Intellectual Property Law Program. "It's the technology."

Star claims that Reynolds has infringed on a process developed by Star inventor Jonnie Williams, which reduces the amounts of harmful nitrosamines in cured tobacco. Reynolds denies this, and further alleges that Star's patents should never have been granted in the first place. The Wall Street Journal has reported that the U.S. Patent Office is re-examining Star's patents, but a request by Reynolds to stay the trial until that examination was complete was denied.

Star filed suit against the company in 2001. Since then, the case has wound its way through the court system. Judge Marvin Garbis, who is hearing the case today, dismissed it back in 2007, ruling in favor of Reynolds' assertion that the patent was vaguely worded, and that Star had concealed information about existing techniques in their application process.

Sung explains that because of the number of patents received, and the limited staff at the U.S. Patent Office, the application process relies heavily on disclosure by inventors of existing technology in a given field.

A federal appeals court overturned Garbis' decision in August of last year, and the U.S. Supreme Court declined to hear Reynolds' petition on that ruling, so Star v.. Reynolds headed back to Garbis' courtroom, where the jury is sitting for its 17th day.

Closing arguments were scheduled for Monday, and wrangling over jury instructions and verdict forms went on until after midnight on Sunday, Garbis notes.

"It has been a struggle of titanic proportions," he says. "Just about every decision I've made, someone has disagreed with." As the jurors receive the sheets they are to mark to indicate their verdict, Garbis says he had designed them "over the dead bodies of all counsel." Then a typo is found, and the sheets are exchanged.

"I don't even want to think about the number of witnesses," Garbis tells the jury. "There were enough witnesses. . . . I'm sure somewhere in this case, they've agreed on something. I have a hard time remembering what it is."

Damages have not been set for the suit--Star spokeswoman Sara Troy Machir said that if the company wins the suit, they will request damages in the hundreds of millions of dollars. A victory would also make Star a player in a small but growing section of the tobacco market.

Smokeless tobacco products--Star manufactures flavored tobacco lozenges marketed as an alternative to smoking--have been a small bright spot for an increasingly regulated industry. Last week, the U.S. Senate approved a bill placing tobacco under the purview of the Food and Drug Administration and introducing new restrictions on advertising and production, and the number of smokers in the United States has decreased. According to the Centers for Disease Control, cigarette consumption and production both decreased by about a third between 1990 and 2007.

Reynolds has introduced Camel Orbs, another dissolvable lozenge, in several U.S. cities, and both Reynolds and Philip Morris USA have begun marketing tobacco pouches in recent years.

Richard McMillan Jr., Star's lead attorney, strives to present inventor Jonnie Williams as a forward thinker who wanted to "revolutionize the industry," by making tobacco safer.

"Maybe he's a dreamer," McMillan says, "but the trends are in his favor." The small firm had had a patron in the early development of Williams' process, but tobacco company Brown and Williamson had severed ties with him after the company was bought by R.J Reynolds.

"Our patron disappeared," McMillan tells the jury, "and our patent rights are what we need if we're going to be successful in this market."

Richard Kaplan, in his closing arguments for Reynolds, says that the process the company used was different, developed by another inventor, and bore little relation to the patents Star accused them of infringing.

"Reynolds in this case didn't do anything wrong," he tells the jury. "There is just no support anywhere to say Reynolds copied Star."

After deliberating for the better part of a day, the jury in the case Star Scientific vs. R.J. Reynolds Tobacco Company found in favor of Reynolds on all counts. The larger tobacco company was found not to have infringed on Starís patents, and the patents were further ruled to be invalid. Following the verdict, financial news organizations were reporting that stock prices for Star Scientific plummeted.

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