UW chemist enters a clash of corporate titans

As far as epic battles go, UW–Madison chemist Charles Casey’s work this summer on a high-stakes legal battle between Dow Chemical and Exxon Corp. falls in the realm of Goliath vs. Goliath.

The two corporate behemoths fought a patent-infringement case over technology that literally represents the future of the plastics industry. And Casey, chair of UW–Madison’s chemistry department, spent some quality time in the hot seat as an expert witness recruited by Dow.

Casey got there by virtue of his research credentials. He is a member of the National Academy of Sciences and is a leading expert on metallocene catalysts, which are part of a new plastics-producing process and the heart and soul of this legal battle.

First, a quick chemistry lesson. Catalysts are a key ingredient in making plastics because they help create long chains of carbon atoms that form the backbone of a polymer. Casey says these new metallocene catalysts are better because they allow greater control over the polymer formed. They help make plastics with exactly the right properties manufacturers are looking for — the right strength, flexibility, or clarity.

The process will create new plastics that will show up in scores of new products, from the body panels of your car to the soles of your shoes. And plastics are, of course, the stuff of everyday life. Casey says American companies produce 29 billion pounds of it each year, more than 100 pounds per U.S. citizen.

“Both companies see metallocene catalysis as the future of the polymer industry,” he says. Dow, which was sued by Exxon for patent infringement, ended up winning the case, Casey says, saving them from either shutting their polymer plant or paying royalties to Exxon.

Given the stakes involved in the case, Casey knew that his expertise would be aggressively challenged. “Most of the time, I was a spectator and it was great,” he says. “But the closer it came to my time on the stand, the more nervous I became.”

The experience was filled with idiosyncrasies, he says.

The case was tried in a federal court in Beaumont, Texas, a coastal city in the heart of petroleum country, during the suffocating 100-degree heat of August. The federal judge presiding over the case, Joe Fisher, is an 88-year-old appointee of the Eisenhower administration. Casey says Fisher is a bright, quick-thinking judge who had a reputation for fast-moving, no-nonsense trials.

“He didn’t want any witness badgering or other nonsense going on in his courtroom,” Casey says. “He was great for a case like this, which could have literally gone on forever.”

Each side had assembled a team of more than two dozen lawyers to work the case. The teams filled entire floors of local hotels, and separate rooms were booked just for storing trial documents. Casey says groups of lawyers worked around the clock on the case.

“We could have fielded a softball team on either side made up of chemists and lawyers,” Casey says. “It was fascinating to watch lawyers work to prepare witnesses. They kept bringing us down in our explanations and saying, ‘No judge in the world is going to understand those words!”

Chemical companies live or die by protecting their technology with patents, and the two companies are currently mired in a legal logjam on several fronts. “There are 20 lawsuits pending between these two companies,” Casey says. “Both teams plan to be leading players in metallocene catalysis and they will continue to compete and to sue each other.”

Casey says the experience didn’t exactly make his list of “things to do for fun on summer vacation.” But the work did have its compensating glories: Casey was paid well and received a high-intensity crash course on patent law. Casey’s father was a both a lawyer and a circuit court judge, and law school was actually his first choice in college before he became enamored with chemistry.

Would Casey ever volunteer for another summer of litigation? “That’s like asking, ‘Would you like to go swimming in Lake Mendota in mid- December?’ The answer might be yes — once.”