In the latest video blog from Barry Murray of the Murray Group, Murray shares his insights on the dos and don’ts of Web design and also reviews the most recent website redesign he worked on: Hulett Environmental Services. If you have questions for Murray or suggestions on topics for future video blogs, e-mail Barry.
In April, PCT launched its annual Technician of the Year awards program. The awards recognize a trio of standout service professionals in the residential, commercial and termite categories. There are two ways to nominate your company’s standout professionals for these prestigious awards. Deadline is Friday, July 15.
Download a PDF of the nomination form and fax it back to Brad Harbison at (330) 659-0823.
Technician of the Year Awards Video
You know you’re getting up in years when you begin writing retrospective columns about the "good old days." That’s because memories — both positive and negative — can be somewhat selective when viewed through the prism of time. But, without a doubt, some of my fondest work memories are those associated with the publication of the Handbook of Pest Control by Arnold Mallis. In the 30+ years I’ve been employed by GIE Media, I’ve had the privilege of working on five editions of this essential reference book. In all, I’ve read the Handbook of Pest Control — from front to back — 15 times, which could explain why I wear bifocals! But each time I complete the final chapter of this 1,400-page book, I marvel at what Arnold Mallis accomplished during his "spare time" after putting in a full day at his 9-to-5 job.
What possibly could motivate a man to take on such a daunting task as authoring the industry’s most comprehensive reference book? When confronted with such a question, one word immediately comes to mind — passion. Writing the Handbook of Pest Control was an enormous undertaking, requiring years of painstaking research and hours away from his family, but it didn’t seem like work to a man so fascinated by the world of insects. It’s a passion shared by Stoy Hedges, editorial director of the past three editions of the book, as well as Keith Story, editorial director of the inaugural edition of the Handbook of Pest Control, published by GIE Media in 1982. Of course, none of this would have been possible without the foresight of Richard Foster, CEO of GIE Media. It was Foster’s idea, in the early days of our company, to purchase the copyrights to the Handbook of Pest Control from McNair-Dorland Company shortly after the New York-based publisher announced it would cease producing the book. Understanding the essential role the Handbook of Pest Control played in educating generations of PMPs, Foster called Mallis — who was retired at the time and not up to editing a sixth edition of his monumental work — and proposed that industry consultant Keith Story serve as editorial director.
Despite some initial trepidation, Arnold agreed to move ahead with the project and 18 months later, Foster met Mallis at the airport in Grand Rapids, Mich. — where the book’s printer was headquartered — and Arnold signed 500 copies of his living legacy. Twenty-nine years later, in the preface to the soon-to-be-published 10th Edition of the book, Foster still recalls that day fondly: "The next morning we sat in a production room at the printing plant as a forklift brought two pallets of the 6th Edition to us for Arnold’s signature. I handed him the first copy and he held it like a treasure, admiring its binding, its paper quality and its color section...and he looked squarely at me and said, ‘This is the quality I always wanted for my book.’ And for the next several hours, I handed him one copy at a time for his signature, each with as much care as the first, a task of pure pleasure for the 500 customers that provided the seed money required for the printer," Foster says. "Arnold flew home that night and I drove back home to Cleveland, filled with a very special experience and a lasting gift."
That "gift" was the memory of a job well done, the creation of a bond between two men who shared a lifelong passion for their work — one entomology and the other publishing. In the four subsequent editions of the book that have been published since Arnold’s passing in 1984, we’ve tried to honor the legacy of Arnold Mallis by producing the highest quality publication possible, working to improve and enhance each subsequent edition of this must-have book.
And the 10th Edition, which will be published in time for NPMA PestWorld in October, is no exception. The most recent edition reflects the "passion" of Editorial Director Stoy Hedges and the 27 editors who have contributed their time and talents — not to mention their considerable technical expertise — to this ambitious project. This incredibly diverse list of industry professionals, highlighted in the flier accompanying this month’s issue of PCT, reads like a "Who’s Who" of the pest management industry, individuals who — like Arnold Mallis — have dedicated their lives to the field of entomology. For their contributions, I am indebted, as I am to Arnold Mallis, Keith Story, Stoy Hedges, Richard Foster and others who have made the 10th Edition of the Handbook of Pest Control possible. Thanks for the memories!
The author is publisher of PCT magazine.
Editor’s Note: This is a developing story. The information in the following article is current as of press time. Visit www.pctonline.com for regular updates and any new developments in the ongoing litigation.
GREENSBORO, N.C. – Nearly two months after issuing a Temporary Restraining Order (TRO) that prevented Makhteshim from "using, importing, marketing, offering to sell, or selling" any fipronil-related product that may infringe on BASF’s ’010 and ’743 patents, U.S. District Judge William L. Osteen, Jr. reversed course in late May, denying BASF’s bid for a preliminary injunction and dissolving the TRO, paving the way for the introduction of Taurus Termiticide/Insecticide from Control Solutions, Makhteshim’s U.S. subsidiary.
In ruling on the motion, Judge Osteen interpreted a key term of the disputed patents, determining that the Exterior Perimeter/Localized Interior (EP/LI) treatment instructions featured in the master label for Taurus SC did not meet the limitations of the claim for the patents in question. The disputed claim – a focal point of the Markman hearing held in early May – focused on a "process for the protection of a [future] building against damage caused by insects," according to court documents.
"Plaintiffs have failed to show that they will likely prove that the asserted claims of the Kimura patents cover the EP/LI treatment methods described in Defendants’ Taurus SC master label," Judge Osteen wrote in his ruling. "Thus, this court concludes that Plaintiffs have not established that they are likely to succeed on the merits." (Editor’s note: Inventor Yassuo Kimura acquired the ’010 patent in 2002 and the ’743 patent in 2004; see related story on page 150.)
The judge concluded that the patents promote the deliberate creation of "untreated locations" around structures so crawling insects can access buildings without being exposed to the insecticide (fipronil). The Taurus label, in contrast, recommends creating a "continuous treated zone" around the exterior of structures "and only treating interior spaces where termite activity is found." As a result, the judge ruled Taurus is unlikely to be found to infringe the patents.
Jan Buberl, head of BASF’s Specialty Products Division, said even though Judge Osteen did not impose a preliminary injunction, as the company had requested, he remains optimistic BASF will prevail at trial. "We respectfully disagree with the decision of the court and we are considering our various legal options, but certainly one of the next milestones is the full trial that is set for (later) this year."
Buberl pointed out the court’s recent action is a "procedural ruling" and doesn’t mean patent infringement issues are no longer in play. Instead, he said, "…with this ruling, we understand what elements we have to clarify to the court to make sure there’s a better understanding of our intellectual property."
SOME HISTORY. The ruling on the Preliminary Injunction is the latest chapter in legal proceedings that began more than a year ago when BASF filed two separate patent-infringement lawsuits in U.S. District Court. Since the original court filings on April 8, 2010, more than 130 different motions, court orders and other related legal actions have taken place as the parties – BASF Agro, Cheminova A/S and Makhteshim Agan of North America, along with its U.S. subsidiary, Control Solutions, Inc. – jockey for position in the high-stakes litigation that will have wide-ranging implications for the pest management industry, whatever the ultimate outcome.
Termidor, BASF’s flagship termiticide, generates more than $75 million in annual revenues, representing about 35 percent of the U.S. termite control market and approximately 65 percent of the liquid termiticide market. More than 4 million structures have been treated with the non-repellent termiticide since it was introduced to the industry 10 years ago. As a result, there’s a lot at stake in any litigation relating to the future of fipronil.
At the center of the proceedings are several fipronil-related patents, the broad-spectrum phenylpyrazole insecticide found in Termidor, the most widely used liquid termiticide in the United States. One of those patents (’940), covering the fipronil molecule itself, expired on Aug. 3, 2010. Two additional manufacturing process patents (’943 and ’945) will expire in 2023 and 2025, respectively, while the method-of-use patents – sometimes referred to as "perimeter use patents" (’010 and ’743) – will expire in 2017. The "perimeter use patents" are owned by Bayer S.A.S. and exclusively licensed by BASF Agro.
Joining BASF as a plaintiff in the lawsuits is Bayer CropSciences, which exclusively licenses two of the patents to BASF. In October, Makhteshim Agan of North America and Cheminova agreed not to introduce any fipronil-related products that would infringe on BASF’s "process patents." At the time, Buberl called it a "major milestone for defending our intellectual property."
He said the action indicated that BASF’s intellectual property "is respected by the competition" and "awarded certain protections" by the courts. "It means we’ll be able to continue to offer new technology long-term for this industry," Buberl said, as evidenced by the company’s introduction of TermidorDRY earlier this year, the first brand extension of the Termidor line.
While BASF continues to invest in creative ways to enhance and expand the use sites for its flagship product, the company’s patent for technical fipronil expired in August 2010, increasing the likelihood a generic fipronil-based technology would one day enter the pest control marketplace. Apparently that day has come. Control Solutions recently posted a description and photo of Taurus Termiticide/Insecticide on its website, and Mark Boyd, president of the Texas-based company, said the firm planned to begin shipping the product in early June. The next step, he said, is to "work with distributors and PCOs and keep the value of fipronil in (the) market as high as possible."
Buberl, however, was more circumspect. "I would caution all PMPs who have a desperate need to take on this product to always keep in mind that the intellectual property discussion is not yet finished and is in full litigation, and that a potential outcome that would confirm the validity of the intellectual property and the encroachment of the intellectual property may have risks for not only distributors, but also for PMPs," he said. As of press time, the case was scheduled to go to trial July 5, but may be delayed until the fall based on court documents and industry insiders familiar with the proceedings.
Interestingly, all of the parties involved in the lawsuit at one time or another during the past year have filed motions for summary judgment, a procedural device used during civil litigation to promptly and expeditiously dispose of a case without a trial. It is used when there is no dispute as to the material facts of the case and a party is entitled to judgment as a matter of law. Up to this point the Court has not acted upon those requests, allowing the litigation to proceed. Whatever the ultimate outcome of the litigation, it’s clear that with so much at stake all of the parties are in it for the long haul. "It’s fair to say that BASF hasn’t changed its attitude to vigorously defend its intellectual property to the ultimate end," Buberl said. "IP is the backbone of BASF’s innovation strategy, and we will continue to aggressively protect our investments in new technology, research and development, and existing products."
"This is the way corporate battle is done these days," Control Solutions’ Boyd said. "The ‘rodeo’ continues."
April 8, 2010
BASF files two separate patent-infringement lawsuits against Cheminova A/S and Makhteshim Agan of North America, along with its U.S. subsidiary Control Solutions, in U.S. District Court in North Carolina.
April 16, 2010
BASF files preliminary injunctions in both lawsuits seeking to prevent the sale and application of fipronil-based products the company claims infringe on its patented technologies.
August 3, 2010
Fipronil chemical patent (’940) expires.
August 4, 2010
Jury trial set for July 5, 2011.
April 4, 2011
Request for Summary Judgment by Cheminova, Inc.
April 6, 2011
Court suggests the possibility of consolidating the Markman hearings in the two patent infringement cases. The parties are directed to determine whether consolidation would be practical and then to contact the case manager to set up a further status conference.
April 13, 2011
Court grants Temporary Restraining Order (TRO), preventing Makhteshim from "using, importing, marketing, offering to sell, or selling" any fipronil-related product that infringes on BASF’s ’010 patent and ’743 patent.
April 14, 2011
BASF posts $1 million bond to pay Makhteshim’s court costs and damages in the event – at the conclusion of the litigation – the company is found to have been wrongfully restrained.
April 19, 2011
Judge William L. Osteen, Jr., orders consolidated Markman hearing. Plaintiffs and Defendants instructed to confer and prepare a single, joint pre-hearing statement, which shall address Markman issues in both cases as to the ’010 and ’743 patents.
May 2, 2011
Markman hearing begins. Parties present oral arguments relating to the claim construction terms in dispute. Summary Judgment hearing tentatively scheduled for mid-June.
May 4-5, 2011
Hearing on BASF’s motion for a Preliminary Injunction held before Judge Osteen.
May 27, 2011
Judge William L. Osteen, Jr. denies BASF’s request for a Preliminary Injunction against Makhteshim Agan of North America for infringing on the company’s "method-of-use" patents.
July 5, 2011
Jury trial scheduled to begin on patent liability issues. (Editor's Note: As of press time.)
The Disputed Patents:A Brief History
At the center of BASF’s recent Motion for a Preliminary Injunction are two patents – the so-called "perimeter use" or "method of use" patents owned by Bayer S.A.S. and exclusively licensed by BASF Agro. Here’s a brief history of the patents as spelled out in Judge William O. Osteen’s recent Memorandum Opinion and Order:
"Inventor Yasuo Kimura…acquired the ’010 patent in 2002 and the ’743 patent in 2004. Both patents are entitled ‘Pesticidal Pyrazoles and Derivatives,’ and both teach a method of using certain insecticidal compounds. Bayer S.A.S. is the assignee and owner of both the ’010 patent and the ’743 patent (collectively, ‘the Kimura patents’), and BASF is the exclusive licensee of the Kimura patents in the United States with respect to the insecticidal compound Fipronil."
Ever since it was founded in 1988, Sarasota, Fla.-based NaturZone has had a knack of succeeding by not copying its competitors. For example, in 1998, while "green" was a novelty offering for the vast majority of pest control companies it was the foundation on which NaturZone was built.
NaturZone developed a pest control program that specialized in the use of non-invasive products, technologies and treatment strategies — offerings that had a broad appeal to the progressive, environmentally-concerned Southwest Florida region. NaturZone’s primary focus was commercial accounts. This business model proved successful and spurred the company’s growth in its early years. But a funny thing happened several years ago. "Green" became all the rage and suddenly that dynamic and unique marketing message that NaturZone used to set itself apart from its competitors was now commonplace in the pest control industry.
A NEW APPROACH. So what has NaturZone done to stand out from this cluttered field? NaturZone President Doug Longfellow said the company, which he purchased in 2005, has undergone an aggressive, targeted marketing campaign to educate the public about green pest control, pointing out that NaturZone has been offering green services since 1988.
"The other thing that we’ve done is obtain certifications that have some ‘teeth,’" said Longfellow. "For example, we are members of [NPMA’s] GreenPro and they have actually audited us, so we have [explained] that to prospective clients." In other words, NaturZone’s sales reps review the GreenPro audit process to prospective clients, to further illustrate the company’s credentials.
Another important change for NaturZone has been its sales approach, which now relies more on educating clients about IPM principles. Previously, NaturZone’s "green" message was heavily focused on products. "How I’ve tried to position ourselves is that in ‘green pest control,’ product is at least second, if not third, in line," he said.
For example, a NaturZone competitor might be treating a high-rise condominium complex with traditional pesticides and strategies that involve treating the interior of each unit. "In Florida, 90 percent of all pest problems are ants or large cockroaches, which are all outdoor pests, so we sit down with people and try to educate them," Longfellow said. "We ask, ‘Why are you spending more money than you need to, to go through every unit and basically do a reactive program? Why not let me spend three times as much time on the outside [as your current vendor] in a proactive way?’ To me that is more ‘green’ than product selection because we have taken pesticide use out of the indoor environment – unless there is a problem."
Longfellow also has changed the tools he’s used for spreading this marketing message. For example, one mistake he admits to is misallocation of marketing dollars. "When I bought the company one change I made was increasing our Yellow Pages ad from a half page to a full page. We got nothing in response. It wasn’t a good way for our clients — which are primarily commercial customers — to link with us."
Longfellow decided to reduce NaturZone’s Yellow Pages presence (in one city from $17,000 per year to $1,200 per annum) and reinvest this money into hiring new sales representatives and becoming more involved in associations. "For instance, we are involved in two organizations for condo property managers — and we joined at the highest level. So we will pay more and in return to get things like advertising at their events. We do every tradeshow and happy hour mixer where we can network with property managers."
These and other changes are paying off. NaturZone has experienced double-digit growth every year for the last five years. When Longfellow bought NaturZone in 2005 the company was just a shade under $500,000; NaturZone’s 2010 year-end revenues were $1.1 million.
A VISION REALIZED. Longfellow’s pest control career dates back to 1977. He has held nearly every pest control position, ranging from service and sales to senior management. In 1984, he left his job as a technician with a St. Petersburg, Fla. company to work for Rentokil. While his previous employer was strictly residential, Rentokil’s customer base is largely commercial. This helped Longfellow see the potential of green treatments in both commercial and residential markets.
Longfellow rose through the ranks at Rentokil, eventually becoming president of Rentokil USA, a position he held from 1999-2004.
In May 2005, Longfellow purchased NaturZone from Travis Wellbrock and Mark Studtmann, the owners and founders of the company. NaturZone appealed to Longfellow because it was one of the first companies in the Sarasota area to incorporate environmentally-friendly practices into their pesticide treatments, he said.
Longfellow has taken that business model and expanded it to encompass all facets of being environmentally friendly. He boiled the whole concept down to one question that his technicians have to ask during an evaluation: "What is the least toxic way to get rid of existing infestations?" He trained NaturZone technicians to diagnose based on the biology of the insect and environmental factors. In addition, he established an all-green treatment method that involves an in-depth evaluation in which NaturZone technicians determine which 60 different products are appropriate for the situation or whether a non-pesticide method would work.
NaturZone offers a pest-proofing service that has reduced the use of pesticides. When technicians see no use for an application, they will instead return to a client’s home or business to fix pipes and gaps under doors. They also will clean drains and recommend housekeeping tips. Because NaturZone’s service area has significant leaf litter and palm trees, large roaches are a common pest. The company advises customers to trim trees, and this is documented in a written assessment of the property.
Longfellow’s goals include further fine-tuning NaturZone’s marketing approach. Also, in 2005 he launched NaturZone International, dba NaturZone Worldwide Franchise (NWF). NWF licenses the NaturZone trademark and implementation of green pest control business. Franchises have been sold in Pennsylvania, Arizona, Mexico and the United Arab Emirates.
Harbison is managing editor of PCT and Toth is a contributing writer for PCT.