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Intellectual Property by Alan Swyer

At noon on a hot Monday in August, two anomalous figures, attache cases in hand, flew in to Houston’s Hobby Airport. Gazing upon the cowboy boots and ten-gallon hats that abounded in the terminal, glib Steve Levin turned to studious Norm Simon. “JFK this ain’t!” he chuckled.


Once in a cab, Levin again faced Simon. “Remember,” he said, “the algorithm sells itself. So less is more. Leave the yak-yak to me, and just answer technical questions. And no additional info, okay?”


“But if they’re curious—”


“Let ‘em buy the goddamn technology.”


Less than an hour later, the two New Yorkers were huddled with Texas-style executives and engineers in a conference room at the corporate offices of Lone Star Computers.


“So your drive ostensibly increases computer speed by forty percent?” asked a tall, lanky Executive VP named Floyd Thurston.


“Forget ostensibly,” responded Levin. “And consider forty percent a bare minimum, with noise levels also diminished somewhere between thirty and thirty-five percent. In a workplace with a multitude of computers, imagine the benefit for employee comfort as well as efficiency.”


Seeing one of the engineers raise his hand, Thurston nodded toward him. “Yes, Darnell?”


“A question for Mr. Simon. If you don’t mind my asking, how exactly did you arrive at your algorithm?”


“Well—” began Simon, who winced when kicked under the table by Levin.


“Let me ask you a question,” Levin interjected, turning to face the engineer. “Say you stop somewhere for ice cream and go absolutely wild over the pistachio, or maybe the salted caramel. If you ask the owner how exactly he arrived at that kind of yummy perfection, which in effect would mean getting the recipe, what’s the likelihood of getting the answer you’re looking for?”


“Slim.”


“Thanks for defining what’s known as intellectual property. So instead of simply relying on the paperwork and videos you’ve seen, how about you folks pick a computer at random, then see the results when we add our technology?”


“We got ‘em!” Levin announced gleefully once he and Simon were in a cab heading back to the airport.


“Because they said their lawyers would be in touch?”


“And asked for a window of exclusivity.”


“Was the six weeks you gave them enough?” “Instead of the six months they wanted? I was tempted to make it four weeks, or even three.”


“Squeezing them makes sense?”


“As opposed to coddling? Negotiating is a contact sport.” Aware that Levin’s business experience was infinitely broader than his, Simon accepted those words as signs both of greater acumen and confidence.

“So why the silence?” Simon asked when he and Levin met for coffee ten days later.


“It’s the way the game is played,” Levin answered, again playing the role of worldly pro. “They want us to squirm a little.”


“And they’re succeeding.”


“Trust me, okay? It’s just them trying not to appear too hungry.”


“But you think—”


“That they’ll call? I’ll bet you a week in Hawaii.”


“Sure hope you’re right,” Simon mumbled, only somewhat mollified.


Three days later, Levin received a call from an attorney at Lone Star named Homer Barnes.


“So what’re you fellas looking for?” the lawyer asked after a couple of moments of chit-chat.


“The moon, the sun, and the stars.”


“And if I could give ‘em to you, I happily would. But tell me, what real world terms would satisfy you?”


“Mind if I call you Homer?” Levin asked.


“Be my guest.”


“Then let me ask you something, Homer. If I start out by giving you the exact terms that’ll satisfy me, what’s the likelihood you’ll immediately say, ‘Fine and dandy’?”


“Not sure I see your point.”


“Oh, I think you do. Whatever I ask for will simply serve as the point of departure for the negotiation, with the figure we ultimately arrive at necessarily less. So how about this? Since it’s your firm that wants an exclusive on our technology, let’s have the opening offer come from you folks.”


“I’ll have to get back to you.”


“And you know where to find me.”

Early the next week, Levin’s cell rang just as he was about to step onto a tennis court.


“Still nothing?” Simon asked, his belief in his business associate dimming ever so slightly with every new delay.


“If I had news, really think I’d keep it secret? Listen to me, okay? You’ve got to see this not as life or death, but as a poker game.”


“Only one problem—”


“Okay—”


“There’s no way in the world I’d wager my kids’ college tuition on a poker game.”


“C’mon, Norm. Bobby’s only five, right?”


“Almost six—”


“And Laura, if I remember correctly, is three.”


“Still—”


“Still, my ass. It’s going exactly as I expected.”


“Really?”


“Yup. And after all—”


“Yeah?”


“It’s not like we’re dealing with the faculty of MIT, or killers at Goldman Sachs.”


“I know, but—”


“Relax, okay? These are rubes. Texas yokels. But if you need help, take a Xanax.”


“So now you’ll be able to start sleeping at night,” Levin announced as he approached Simon’s table at Xi’an’s Famous Foods at noon two days later.


“Why’s that?”


“We got an offer this morning.”


“Decent?”


“As a first step.”


“Do me a big favor?”


“Namely?”


“Remember that we don’t need to set land and sea records.”


“So you’re saying settle?” “Not necessarily settle. But don’t push so hard that we blow the deal.”


“Trust me, okay? Just have a little faith and trust me.”

As the conversations with Homer Bonds that were reported to him increased in frequency, Norm Simon found himself growing more and more upbeat until one night, in a complete reversal, he woke up in a cold sweat. “We’re nearing week six,” he stated late the next afternoon when he and Levin met at a wine bar. “Figure we’ll close soon?”


“The next time you and I meet, it’ll be to sign papers.”


“And celebrate.”


“Only if you insist,” teased Levin.


On Monday morning of week six, however, there was no call from Homer Barnes. The same proved to be true that afternoon. When the silence continued through Wednesday lunch, Levin got a call from Norm Simon. “Why no word?” was the question asked.


“They’re toying with us.”


“But I thought the terms are set.”


“They are unless we flinch.”


“So what do we do?”


“We show the motherfuckers what we’re made of.”


“And if they still don’t call?”


“They will.”


But there was no word the rest of Wednesday, nor any sign of life Thursday morning. Ducking call after call from Simon, Levin waited until lunchtime neared, then reached out to Homer Barnes. When his call was not returned, he tried again at 3 PM with no greater luck.


Friday morning, Levin restrained himself until almost 11 before once more dialing Barnes’ number, all the while choosing not to take the panicked calls that came in from Simon.


At 1:45 he sent off an email: Phones working in Houston these days? That was followed by a text an hour later: You alive?


Not until nearly 4 PM did Homer’s number show up on Caller ID. “Go off on a bender?” Levin teased in an attempt to mask his exasperation.


“Meetings, meetings, meetings,” Barnes replied. “So I suppose you’re wondering about the contracts.”


“Who, me?”


“I’m afraid there’s been a little change.”


“Meaning?”


“I guess you could say we’ve reconsidered.”


“What exactly are you telling me?”


“That we’re going to pass.”


“Very funny.”


“I’m not joking.”


“Y-you can’t do that.”


“We can, and we did.”

Uncharacteristically shaken, Levin poured himself a shot of vodka, then another. Turning off his phone, he took several deep breaths, then took refuge in his Porsche.


Off he drove to his place on the Jersey Shore, where he drank and smoked himself into oblivion on Friday night, then stewed and cogitated the rest of the weekend.


“We’re gonna get ‘em!” a revivified Levin exclaimed on Monday morning when he met up with Simon for breakfast at Barney Greengrass. “We’re gonna kick the living shit out of those motherfuckers!”


“How?”


“The moment they show their hand. This was all carefully orchestrated, but you know what?”


“What?” “They’re nowhere near as slick as they think.”


“And until then?”


“We watch every goddamn thing they do. Every announcement, every statement to the press, every ad, you name it.”


“And the technology?”


“We take it around to every other company worth its salt.” Despite his ever-increasing inability to share his colleague’s optimism or enthusiasm, Simon did not protest or balk.


Levin was surprised when the initial foray to another computer manufacturer was met with disinterest. That feeling rose to irritation when it happened a second time. But only after the third failed attempt did he finally explode.


“Now we’re gonna kill ‘em!” he told Simon. “We’re gonna make those fuckin’ cowboys rue the very day they met us.”


“You thinking collusion?”


“Much worse! Ever heard the term tortious action?”


“Not until now.”


“It means willful and intentional damaging of business relationships with third parties, causing dire economic harm. Thanks to something called the Clayton Act, know what it also means? Treble damages.”


“But why’d they do it.”


“Ten-to-one they did sufficient reverse engineering to come up with a reasonable facsimile of the technology. Then they promised it to all their competitors on the condition that no one do business with us. Which, by the way, is the textbook definition of conspiracy.”


“But I still don’t get why.”


“First and foremost to save themselves a fortune. Then to make tons off of each and every subsequent licensing agreement. But the key to the whole thing—”


“Yeah—”


“Nobody pulls shit like this for the first time.”


“What exactly are you saying?”


“While we’re waiting for them to make their next move—”


“Yeah?”


“We show this was premeditated by finding other people they’ve burned in exactly the same way.”


Ever more weary of the process, and of Levin’s palaver, Simon barely managed to acquiesce.


“I’ve got three!” Levin announced proudly as he stormed into Patsy’s Pizza, where Simon was sitting and waiting.


“Three what?”


“Three unhappy creative souls willing to go on record about being burned the way we were. Plus a fourth who’s on the fence about going public.”


“So what do we do?”


“Continue to monitor.”


“That’s fun.”


“And search for disgruntled ex-employees who can talk about how this was part of a master plan to profit from other peoples’ ingenuity.”


“But why would they do it?”


“Because they could. Why buy or license technology when you can possibly steal it?”


“But how do they get away with it again and again?”


“They figure—correctly, it seems—that nobody’s strong enough, or nuts enough, to be David against their Goliath.”


“And we are?”


“Strong enough? Probably. Nuts enough? Bet your ass!”


“What about attorneys?”


“Leave that to me.”

“They’ve made an announcement!” Levin heard Simon state several days later when he answered his cell. “They’re calling it the technological breakthrough of the year!”


“Thank heaven for grandstanding.”


“So what do we do?”


“Meet me at P.J. Clarke’s in fifteen.”

“A ‘white shoe’ law firm?” Simon asked once they had beers in front of them.


“You bet. And on contingency,” Levin added.


“That sounds great, but how?”


“One of us, as you may have noticed, has a pretty decent gift of gab. The keys, as you may recall, were words like tortious, conspiracy, plus the Clayton Act. Who said WASPs aren’t greedy? With the enormous scope of the computer market, all these country club guys started seeing dancing dollar signs. Happy?”


“So there’s no cost to us?”


“Not for the lawyers. Only for direct costs, which could be—”


When Levin paused, Simon forced the issue. “Could be what?”


“Somewhat significant.”


“How significant?”


“Enough that we’ll need some help.”


“No way we’re tapping into my kids’ college funds.”


“It’s a great opportunity for investment.”


“And I’m not hitting on my friends and relatives.”


“Okay.”


“I mean it.”


“Anyway, I’ve got feelers out to investment bankers.”


“They do that kind of thing?”


Levin nodded. “And not out of the goodness of their hearts.”

“The cowboys are scared!” Levin informed Simon when they reconvened just four days after the lawsuit was filed.


“Which in plain English means?”


“They’ve offered a settlement.”


“Decent?”


“Only as a sign that they sense we mean business.”


“How much is it for?”


“What difference? No way we’re settling?”


“Says who?”


“Says me, for one.”


“Wait a second.”


“What do you mean, wait a second?”


“What gives you that right?”


“Whoa! Haven’t I been the point man on all the business dealings?”


“Which doesn’t mean you’re the one who decides.”


Only after staring at Simon for several moments did Levin speak. “Norm, listen to me. We’ve got a chance at serious bucks here.”


“To be shared with the law firm, right?” Levin nodded. “And the investment bankers, if you come up with ‘em?”


“Which could be firmed up as early as next week. Look, I’ve spoken to people who’ve been through this kind of thing—”


“Oh yeah? So have I.”


“And?” “Everyone I’ve spoken to says it’ll be a war of attrition the likes of which I don’t want to get anywhere near. The bad guys’ll stall, postpone, then come up with delays in ways we never dreamed of. They’ll deplete forest after forest, generating truckloads of paperwork, most of it irrelevant or extraneous. They’ll play every legal game and trick we’ve ever heard of, then invent a whole bunch of new ones. And if they somehow manage to get the venue shifted to 54 their part of the world, which of course they’ll try—”


“Yeah?”


“We’re even more screwed.”


“But think of the upside.”


“Forget upside. We’re talking about years and years of our lives.”


“For which we can bill the investment bankers.”


“Well, maybe you want to live that way. But I’ve got better things to do.”


“C’mon, for Chrissake! Isn’t getting rich the ultimate goal? The only thing in the world that really matters?”


Simon studied Levin for a long moment. “You know,” he then said “that’s not the dumbest thing I’ve ever heard.”


“Good.”


“But it’s pretty fucking close.”


“You’re telling me that money doesn’t matter to you?”


“Obviously not like it does to you.”


“Then what does matter?”


“Let’s just say that one of us isn’t twice divorced, and really likes to spend time with his kids.”


“That’s a cheap shot.”


“But you didn’t say I’m wrong.”


“And that’s all that matters?”


Simon studied Levin for a very long moment before speaking again. “Strange as it seems,” he said at last, “I’m trying to do things that do some good. Maybe in some way even make the world a little bit of a better place.”


“You expect me to believe that cornball shit?”


“Know what? I don’t give a fuck what you believe,” Simon said before turning and heading for the door.


“B-but we haven’t yet reached a decision,” Levin pleaded.


“Oh yes, we have,” said Simon. “Oh yes, we have.”


Alan Swyer is an award-winning filmmaker whose recent documentaries have dealt with Eastern spirituality in the Western world, the criminal justice system, diabetes, boxing, and singer Billy Vera. In the realm of music, among his productions is an album of Ray Charles love songs. His novel The Beard was recently published by Harvard Square Editions.

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