Substantially Similar--A Blog on IP Issues, Writing and Film

Of late, I've gotten involved in a discussion about tribal sovereign immunity for Native American Tribes and patents. I entered this discussion because I have covered patent law as a journalist and because I was executive director of an association for tribal environmental and solid waste issues.

The discussion arose because of a recent legal decision. The drug company Allergan is facing challenges to the validity its patents covering the dry eye treatment drug Restasis before the Patent and Trademark Office's Patent Trial and Appeal Board. Mylan, Teva Pharmaceutical and Akorn are challenging the Allergan patents because they want to sell Restasis generics. Allergan arranged in 2017 to license its patents to the St. Regis Mohawk Tribe in upstate New York. The tribe would then argue that the proceedings before the PTAB could not proceed because the tribe has sovereign immunity. Under federal law, a tribe can be sued only where Congress has authorized the suit or when the tribe has waived its immunity.

On February 23, the PTAB denied the tribe's motion to terminate the patent challenges. It acknowledged that the use of sovereign immunity was an issue of "first impression" before the PTAB. And yet, it held, tribal sovereign immunity does not apply to matters before the PTAB. It distinguished cases cited by the tribe because they involved state sovereign immunity and not tribal sovereign immunity and decided that decisions by federal agencies on tribal federal immunity didn't apply to the PTAB. 

Commentators have noted that because the PTAB was established by the American Invents Act, which became law in 2011 and became effective in 2013, almost everything before the board is a matter of first impression. They stated the PTAB appears to believe this means they have a clean slate and are not bound by precedent. Some commentators described the ruling as another example of the PTAB considering itself a world onto itself. Others noted that legislation has been introduced in Congress that would prohibit tribal sovereign immunity as a defense to patent validity challenges.

I entered into this discussion just yesterday by commenting on a blog on another site. I stated that sovereign immunity is important to tribes and wished the PTAB's reasoning on the issue hadn't been so idiosyncratic. I received some comments on that blog and by email from patent attorneys suggesting that tribes should find another avenue to assert tribal sovereign immunity. Others referred to the tribe's involvement in Allergan's legal proceedings as "sham litigation."

Well, after having all their land taken from them and most of what land they were given held in trust for them by the federal government, Native American tribes have had to be resourceful with what little they have. According to a 2015 study, the average household income of Native Americans is 30% less than that of the U.S. as a whole. Some tribes have agreed to host toxic and hazardous sites on their land for the revenue that brings. Two hundred and forty three out of the 566 Native American tribes own a portion of tribal casinos built on their land. Some like the Mohegan Sun in Connecticut are very large and successful; others I have been to are much smaller. Tribal sovereign immunity was an attraction to the casino investors. The St. Regis Mohawk Tribe saw its casino revenues drop in recent years. Among the St. Regis Mohawk Tribe's other resourceful enterprises,given the thaw in Cuban-American relations during the Obama administration, it has explored collaboration with the Cuban government concerning a drug developed in Cuba to treat diabetes, a disease that disproportionately affects Native Americans.

Given Native American history, to say that tribes should just explore other avenues to assert their tribal sovereign immunity than accepting a business deal with a pharmaceutical company is a bit glib--it assumes other opportunities are available to tribes every day. Drug companies, as well as companies in other industries, have been known to collaborate with entities in other countries for tax reasons and other purposes. Why are tribes, which under law have sovereign immunity, different? Why shouldn't tribes utilize their land and the immunity they have been given under law in business transactions? There may be reasons as they pertain to patents why they cannot exert their immunity. If the St. Regis Mohawk tribe appeals the PTAB's decision, the court may provide more clarity as to why they can't than the PTAB did. Or it can decide tribal immunity does apply in patent matters. Or Congress may settle it. But, as I stated in the blog on the other site, sovereign immunity is part of the soul of tribal existence, and I personally think the PTAB should have given it greater respect and not treated it so casually.

Copyright 2018 by John T. Aquino

There are 100th birthday celebrations going on for Leonard Birthday--a Thomas Jefferson-sort of man, who, like Jefferson, perhaps felt that he had accomplished all of which he was capable.

I had three connections with Bernstein. When I was editor of Music Educators Journal for the Music Educators National Conference (MENC), the association's board of directors voted to give Bernstein an award, noting especially his televised "Young People's Concerts," in which he performed classical music for school children and discussed it with them.  The board and selected staff went to New York to Bernstein's office for the award presentation. The group was greeted by his assistant in the reception area and told that Bernstein would be out in a minute. He came out, shook everyone's hand, accepted the award, and posed for photos. It all took about 90 seconds. He then turned to his assistant, handed her the award, and said, "Put this in the closet with the others."

I have told this story a number of times over the years. On hearing it, my arts-savvy friends were always very supportive of Bernstein. Ah, sure, it would have been nice if he had said what he said out of the group's earshot. But Bernstein--a composer for various musical genres, a conductor, recording artist, television personality--received hundreds of awards a year. My arts-savvy friends said that Bernstein was just telling it the way it was.

The second connection was 10 years later when my wife and I were invited to the 60th birthday concert for cellist and conductor Mstislav Rostropovich at the Kennedy Center in Washington, D.C. Bernstein was one of the performers, conducting the National Symphony Orchestra in Bernstein's Slava! A Political Overture, which Bernstein had written in honor of Rostropovich, taking melodies from his score for the failed 1976 musical 1600 Pennsylvania Avenue. Bernstein seemed a little distracted, the overture a little rushed, and he left after it was over. But his embrace of and evident affection for Rostropovich appeared warm and lingering.

As for the third connection, I reviewed for publication two books by Bernstein. One was of his The Unanswered Question: Six Talks at Harvard, which was based on his 1973 Norton Lectures. The publication was extremely ambitious, containing the text of the lectures and audio of some of the lectures and the musical works he discussed. The topic was ambitious too: "Whither music." Bernstein was reacting to classical music's recent immersion in atonality. He considered the lectures multidisciplinary, utilizing the linguistic theories of Noam Chomsky. Bernstein's daughter later said that her father was clearly in over his head in these lectures. My reaction was that Bernstein was cherry-picking from Chomsky, dipping in as it suited him. His writing was generalized and sometimes contradictory. And yet behind it all were some brilliant observations and his undoubted genius. Reactions in addition to mine ranged from mixed to negative. The second book was a collection of his writing titled Findings. It included occasional essays, fiction, poems and his 1939 Harvard Bachelor's thesis "The Absorption of Race Elements in American Music." At the time of publication, the thesis, which took up 20% of the book, was 43 years old. In his introduction, Bernstein confessed that he would liked to have updated the thesis based on more recent scholarship and his own musical experiences. But, he explained, he just didn't have the time to do it. The impression he left is that this ancient academic exercise was inserted to pad out the book and fulfill a book contract.

Bernstein was a world class conductor of symphony orchestras in his 20s. Also in his 20s, he composed the music for a Broadway musical (On the Town) and went on to write the music for one of the landmark works of the American musical theatre--West Side Story. It is energetic, lyrical, and eclectic in its musical influences. He wrote the score for the 1954 Academy Award-winning film On the Waterfront. He wrote for the ballet and the opera, appeared on television, and did humanitarian works. There is no denying his genius and his influence. 

But there is also the sense that he could do so many things that it was impossible for him to excel in everything or to continue to excel after creating masterworks and giving magnificent performances. After the great success of West Side Story, Bernstein walked away from the musical theatre, saying that he was assuming others would pick up where he left off. It didn't happen, and he returned 20 years later with 1600 Pennsylvania Avenue, which ran for just 20 performances It is a matter of debate how many operas he wrote: either two short ones--Trouble in Tahiti (1952) and A Quiet Place (1983), or one, A Quiet Place as revised by Bernstein in 1986 with Trouble in Tahiti as Act I and the original A Quiet Place as Act II. It seems a blending of old and news like Findings. He wrote just one film score and three ballets. He later said that his conducting took too much time away from his compositions.

As he ended his life, there were some similarities between Bernstein and the filmmaker Orson Welles, also a towering talent who started young, but who left as many unfinished films and he did completed ones and whose later work,  such as F Is for Fake and Filming Othello, was sometimes a melange of old and new material. But, unlike Welles, Bernstein's combined work--his conducting, his recordings, his musicals, his symphonies, his choral works, his television performances--are a substantial oeuvre.

The irony is that it isn't that Bernstein didn't accomplish a great deal. It's that there is a nagging sense, with all of his gifts, that he could have accomplished more. As he wrote in the introduction for Findings, he just didn't have the time. But if he had just written West Side Story and On the Town, that would have been enough to be remembered in the history of musicals; if he had just conducted his concerts and made his recordings, he would be remembered as one of the great classical music conductors; if he had just broadcast the "Young People's Concerts" from 1954 to 1972, he would be remembered as a music educator.

Most of us would be more than content to be remembered as one of those. 

Happy Birthday, Lenny. And, by the way, the lady standing next to you in some of those MENC photos is your receptionist.

Copyright 2018 by John T. Aquino

The "Me Too" movement to bring increased awareness of and unity against those committing or covering up sexual harassment and sexual assault has been surprising in its suddenness and its immediate effectiveness. I am concerned about the reaction of those, including former first lady, U.S. senator, U.S. secretary of state and U.S. presidential candidate Hilary Clinton, former presidential advisor James Carville, and Hollywood producer and the most notorious of those accused of sexual assault and sexual harassment Harvey Weinstein. They have explained their actions by referring to the "seismic shift" that has occurred in the U.S. concerning sexual relations. Clinton used this excuse in explaining why the hadn't agreed to fire a member of her 2008 campaign staff accused of sexual harassment.

Seismic shift! It has never been acceptable to harass and/or assault women. It has, however, been common for some to condone such behavior, especially of those in power.

The strong reaction to the Weinstein accusations is important because the Hollywood "casting couch" has been part of filmmaking since the industry settled in that California city in 1913 and has served as a template for such behavior for such behavior. Young women flocked to Hollywood to become movie stars. The "casting couch" was usually introduced as, "Do you want to be in the movie or not? If you do, then you have to be--nice to [to the producer, director, leading actor, screenwriter, whatever]. If you don't want to do this, then there are thousands who will." Similar situations have occurred in the theatre and the financial industries in New York, politics in Washington, D.C. and academia and businesses everywhere.

When I was an executive, female staff members would come to me for help against sexual harassment and/or advances from company managers, presumably because I was and am happily married. I believed that having female employees who feel obliged to succumb to such advances or who quit rather than give in is bad for business. And so I would talk to the managers and, failing in that, talk to the owners, usually citing the potential legal implications and the harm to the company's reputation. The usual result was that the advancer would be told to and would retreat from that particular target and that I had antagonized the advancer as well the owners, who didn't want to offend or possibly lose a talented salesman, fund raiser, or whatever.

The desire to keep those accused on staff and happy has resulted in their continuing bad behavior. Human resources people would take the accuser aside and say, "If it comes to that and they have to choose between you and him, whom do you think they will choose?" Women who accused television journalist Charlie Rose of sexual harassment recalled HR people saying, "Oh, that's just Charlie being Charlie."

I was vocal in my circle during the Clinton scandal of the late 1990s in my disappointment in the response of my two professions--journalism and the law. Much of the media and many attorneys downplayed President Bill Clinton's affair with Monica Lewinsky, a presidential intern. They insisted that his dalliance with her and, reportedly, with other women, and his lying under oath about his affair with Lewinsky didn't meet the constitutional requirement necessary for conviction of a president as a "high crime or misdemeanor." Some, such as Carville and Hilary Clinton, suggested the women were gold-diggers, loose and/or trailer-trash. Looking back, Carville, when asked recently, admitted that he probably wouldn't use the same language today, referring to the "seismic shift." Others who were in Congress then and even executives at the National Organization for Women (NOW), admitted after the Weinstein scandal  public  became they probably should have listened to the Clinton accusers more at the time. I remember interviews then with members of Congress in which they were asked if they would let their daughter be an intern under President Clinton. They would invariably say, no, but still insist that his behavior wasn't a high crime or misdemeanor. Few considered the situation of Lewinsky and, reportedly, the other women, who had been propositioned by the governor of Arkansas and, later, the president of the United States, the most powerful man in the world. Some of the women claimed they had been assaulted. Others faced the casting couch dilemma--do you want to work here--or anywhere if you offend the president--and, if so, here's what you have to do. Also, our current president has been the subject of accusations as well.

Sexual harassment and sexual assault were always wrong. There was no seismic shift. People just caved to people in power or in order to stay in power. Those who condoned them in the past should be ashamed, admit they were wrong, and pledge to respect all women in the future. No hiding behind ambiguous phrases. It's the only way the past and the present will make any sense.

Copyright 2018 by John T. Aquino

I've had friends who've had such problems with their bosses that they've quit their jobs. Never have I personally seen that work out for the better. I did it once myself, and I was wrong. It was the best job I ever had. He was fired a month after I left. Maybe he was fired because I and others had left. And there was another time when the boss stayed and stayed.

In talking about management issues, I sometimes find analogies in the making of movies. Some big movie stars were constantly at war with the studios that employed them: Bette Davis, James Cagney, Errol Flynn, and Olivia De Haviland. All of them were not coincidentally under contract to Warner Brothers studio, led by Jack Warner.

Davis tried to quit twice, Warners sued for breach, and the court held Davis to her contract. After she finally left, her career fell apart. Cagney didn't renew his contract twice, tiring of the gangster roles Warners kept giving him. Each time he came back, and the second time he took on the most violent, malevolent gangster ever seen in White Heat, and his career took off again. Flynn never quit but grew disinterested, and it showed. Like Davis, after he left Warners, he played mostly in support of others in films made in Europe.

De Haviland sued, citing Warners' as well as the other studios' practice of assigning stars mediocre films to prompt them to turn them down. The studios would put the actors on suspension and then add time to their contract, effectively turning a seven-year term to a 14 year term. She won the lawsuit, and the result became known as the De Havilan rule, prohibiting adding time to contracts. Free from Warners, she went on to pick roles that won her two Academy Awards, but for the next two decades she worked very little. Studio heads were evidently wary of employing an actress who had prone to litigation and had single-handedly destroyed a successful studio practice.

It could be argued that for all of their complaints Davis, Flynn, and Cagney did their best work for Warners and De Haviland did most of her best work there.

This doesn't mean that the bosses always know best. Stars like Cary Grant`, Katherine Hepburn, James Stewart, and Gary Cooper bridled at long-term contracts and later in their careers basically became freelancers for studios.

There are, of course, perils in this route. But Grant, Cooper, Hepburn and

Stewart were good enough and famous enough to carry it off.

And then there are examples of actors who worked well in the studio system. One extreme example is Robert Taytor who spent most of his career working under contract for M-G-M. Taylor had a reputation for being easy-going and just darn grateful to M-G-M for giving him a contract when he knew there were many young actors who may have been more talented although maybe not as handsome who never got a chance to make a movie. He worked hard at his craft and is reported to never have turned down an assignment. The result was that, while other M-G-M contractees saw their contracts not renewed as they grew older, Taylor's kept getting renewed. He was no trouble and did good work. An interesting side-effect of this is that M-G-M didn't assign Taylor that many really bad films. It was almost like they figured if Taylor wouldn't fight for better roles for himself the studio would have to do it for him. They were prompted by the fact that his pictures made money and to put him in junk would tarnish his stardom. So, when he turned 40 and was no longer the youthful romantic lead, M-G-M cast him in Ivanhoe, and he began a series of epic costume films that revitalized his career. His career at M-G-M last 25 years.

Of course, Taylor's path only works when the employer makes the right decisions for the employee, which most employers don't.

For all of those who fought the studios tooth and nail, there are those who worked in the system and made it work for them. Which path you follow depends on how bad the job is.

Copyright 2018 by John T. Aquino

His being 50 years older than me had its consequences. When I am given sample secret answers for access to my bank accounts and credit cards online, one is always, "What is favorite song from the 1990s?" I don't have a favorite song from the 1990s. I do have favorite songs from the 1920s and 1930s and 1940s and other songs my Dad taught me. 

When he died, our family buried him at the Catholic cemetery in Northeast Washington.  But the family has moved away from that area, and when my mother died this year we decided to bury her in the cemetery in Silver Spring and to move my father there. 

It was a long and complicated process, involving visits to D.C. government offices for permits and coordinating with two cemeteries and a funeral home. But we finally moved him a few weeks ago. It was a small service. Other family members were working, so there were only three of us, my wife, my brother and me, plus a deacon and a representative of the funeral home. Each of us said a few words. 

I said that my Dad was a man who loved his family, his country, his Italian heritage and his Catholic faith. He spent his life helping other people. He didn't ask much back, except for one thing. He made his children promise never to name any of our children "Sylvester." And none of us has.

My mother was an English teacher and guidance counselor for the D.C. public schools. She was the one who encouraged us to read poetry.. But I remember one poem my Dad recited. I was going through  some teenage angst, and in response, he recited Rudyard Kipling's "If," which begins,

"If you can keep your head when all about you

Are losing theirs and blaming it on you.

If you can trust yourself when all men doubt you,

And make allowance for their doubting too."

It ends,

"If you can fill the unforgiving minute

With sixty seconds' worth of distance run,

Yours is the Earth and everything that's in it,

And--which is more--you'll be a Man, my son."

That poem and especially the "my son" have spoken to me over the years and from heaven.

Copyright 2018 by John T. Aquino