LAS VEGAS — An important function of PestSure — an insurance association comprised of pest control operators — is to assist its members in reducing their insurance claims by providing them with the information and tools necessary to create a culture of safety. It’s for this reason that 70-plus PestSure members gathered in Las Vegas Sept. 14-16, for PestSure’s annual “Safety and Loss Prevention Meeting.”
During the course of the conference, attendees heard safety and loss prevention presentations from PestSure staff, members and vendors. Additionally, several PestSure members shared lessons learned about safety during 15-minute “Safety Oops” presentations.
“PestSure is more than just a mechanism for buying insurance. It’s a given that we are going to work to get you competitive prices and react to what is going on in the market. The real differentiators with PestSure is in loss prevention and how we handle claims,” said Todd Burke, executive vice president of PestSure. In May 2010, Burke replaced the retiring Rex Jennings, who had run the PestSure program since 1986.
An example of a PestSure company that has invested time, training and resources into infusing safety into its company culture is Rose Pest Solutions, Troy, Mich. Gene White, director of Education and Training, Rose Pest Solutions, reviewed some of Rose’s efforts in this area. White says Rose tries to “slip” safety training tips into every aspect of the business.
Hiring process — “Before people come to work for us we’ll ask questions like, ‘Can you lift 50 pounds?’; ‘Can you climb ladders?’; ‘Can you crawl in crawlspaces?’” said White. “Those are part of our job descriptions – it’s not discrimination. We want to make be sure they can do the things we need them to do. It’s part of the safety culture.”
Company policy manual — “Have it in writing because we all need reinforcement,” White said.
Education and training curricula — “We put it in a requirement for a safety component in our monthly district training programs,” said White.
Newsletters and Office Communications — “Every district office and main office we have has a safety bulletin board where we put up new ideas, new information and new safety laws and regulations and they are maintained by people at the office,” White said
Job planning and job duties – “Before we start on a job, we sit down and a part of that job planning is a required safety component. ‘What part of this job is unsafe and what can we do to fix that safety issue there?'"
Send it home to the spouse — “Do you want quick action? Send a newsletter home with a message to the spouses of your employees: Here is our safety information that we need your spouse to know.”
Incentive programs — For example, Rose Pest Solutions allows its employees to take a payroll deduction to buy Shoes for Crews, which are slip-resistant shoes.
A significant focus of the PestSure meeting was on driver safety. For years, PCOs have realized the benefits of fleet tracking systems.Pam Blackburn of Myers Pest and Termite Services, shared with attendees processes that have been successful for Myers' use of its fleet tracking system, including:
- Getting the commitment of your entire team.
- It must be properly introduced to your drivers. In other words, explain that the system is not simply a means for watching them, but rather a tool that can beneficial (e.g., should they be involved in an accident that was not their fault) It must be utilized and communicated as a method to control costs and liability in many areas of the business.
- Service managers are required to log in and review all events once a day even in the event has no score attached to it
- Coachable events must be discussed in person, not via phone and must be resolved in the system within 48 hours of the event
- Drivers must watch the video along with the manager and is asked to critique himself in writing on the printed coaching sheet.
- Branch managers must also review all events daily and get involve with high risk behavior and repeat offenders.
- E-mail alerts have been set up to notify managers of high risk behavior such as collisions, traffic violations, falling asleep, cell phone usage, etc.
Two safety areas of concerns for pest management professionals are attics and crawlspaces. Frank Fowler, McNeely Pest Control, Winston-Salem, N.C., reviewed some of the hazards found in these areas. One piece of advice Fowler provided attendees with was to “not be afraid to walk away" from a job that involves an attic or crawlspace that is simply too dangerous. Fowler also showed slides where he encountered potentially dangerous electrical situations (e.g., wires and moisture) and, before proceeding with the job, he called the electric company and had them send out a worker. Other “take-home” points from Fowler included: (1) Take off your gloves and booties when going up ladders so that you get the best possible traction. If you are wearing a protective plastic suit with attached booties, cut them out. (2) If you encounter a swarm of stinging pests (e.g., European hornets) in the attic, turn off your flashlight and lie still on the ground.
Another highlight from the conference was a theatrical role-play put on by the PestSure staff titled “The Life of a Workers’ Compensation Claim.” The play followed worker’s compensation claim from beginning to end and reviewed how all the various entities are involved. The cast included a (fictitious) service technician and company rep and reviewed the claim from the following points of view (1): a claims examiner; (2) a nurse case manager; and (3) an attorney.
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Nearly 18 months after BASF filed two separate patent infringement lawsuits in U.S. Federal District Court against Cheminova A/S and Makhteshim Agan of North America, a trial date finally appears to be on the horizon, perhaps providing PMPs, distributors and chemical suppliers serving the pest management industry with much-needed clarity on likely market conditions in 2012.
Up to this point the Makhteshim case has garnered the most headlines, thanks in part to Judge William L. Osteen’s decision last April to issue a Temporary Restraining Order preventing Makhteshim from selling any fipronil-related product that may infringe on BASF’s perimeter use patents (‘010 and ‘743), before reversing course in May and denying BASF’s bid for a preliminary injunction blocking the introduction of the company’s fipronil-based termiticide.
That ruling (see June PCT, pgs. 146-150) prompted Control Solutions, Makhteshim’s U.S. subsidiary, to introduce Taurus SC Termiticide/Insecticide, a 9.1% formulation of fipronil. In announcing the product launch in June, Dr. Yoav Zeif, director of global products and marketing for the Makhteshim Agan Group (MAI), said, “We are pleased to have achieved such a successful outcome which required us to overcome many complex patent, engineering and business challenges. Our success is a clear demonstration of our ability to seize significant opportunities in the agrochemicals space leveraging the differentiating qualities of MAI’s people.”
Shortly after the product was introduced, however, Jan Buberl, head of BASF’s Specialty Products Division, said, “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.”
Buberl added that BASF is continuing to invest in the Termidor brand and he doesn’t anticipate the company’s market position to be impacted significantly by the introduction of the first post-patent fipronil product in the U.S. pest management industry. “We can clearly see that a lot of our customers have full trust in the BASF and Termidor brand,” he said, adding that the company remains “very committed” to product stewardship, “not only with the existing (Termidor) products we have, but also with the new innovations we’re going to launch into the marketplace over the next couple of years.”
While a trial date has not yet been set for the Makhteshim case, like this summer’s temperatures, the Cheminova litigation heated up following a second Markman hearing held in June to determine the meaning and scope of various patent claim terms not addressed in the initial hearing, specifically terms relating to the fipronil manufacturing process patent (‘943).
In its memorandum opinion and order, which was issued in early August, Judge Osteen of the U.S. District Court in the Middle District of North Carolina ruled that the meaning and scope of the patent claim terms presented by the parties for construction were determined as follows:
- The term “in the presence of” is construed as “in the same place as, in the vicinity of, or in the area immediately near.”
- The term “compound” is construed as “a substance whose molecules consist of atoms of different elements; the elements cannot be separated by physical means.”
- The term “corrosion inhibiting compound” is construed as “a compound that slows, interferes with, or prevents the action, process, or effect of eating away or diminishing, that results from an acid or alkali reaction or a chemical alteration.”
Buberl said the court’s interpretation of the patent claim terms was a “very positive development” for the company, setting the stage for a jury trial later this year or in early 2012. “With the decision of the 9th of August, what is very clear is that (the) intellectual property which was under discussion in the Cheminova case has been clarified in the Markman hearing in a way that really is in line with … the BASF view. So, from our side, it’s a very positive development confirming our position around the intellectual property we have.”
As Cheminova’s attorneys prepare for trial, Brad Chalk, business manager, non-crop products, said the company remains optimistic it ultimately will prevail. “Our chemical engineering people are highly confident in their position,” he said, and while it’s clear “these really specific remaining issues may not be thrown out by the judge without a trial,” that doesn’t mean the company is chastened by the court’s recent action.
In fact, Chalk compared the proceedings to a prize fight, with two worthy opponents punching and counter-punching one another in a series of three-minute rounds, with the ultimate victor winning the most rounds. “It sounds to me that one way or the other, the landscape should become clearer by late fall,” he said.
According to Buberl, while various rulings have been “more or less favorable” depending on what’s happening in the case at any given time, he’s “convinced” that in the end BASF “will have a very positive outcome in all these decisions.”
In mid-September, following a motion hearing, the Court held a status conference for the purpose of establishing a schedule for resolution of remaining pending motions, summary judgments and pretrial disclosures in the Cheminova case. Based on the transcript of that hearing, it’s apparent the parties, along with the judge, are eager to get the case moving.
Attorney Joshua C. Krumholz of Holland & Knight LLP, representing the Defendants, said, “…as the Court knows, we (Cheminova) have been the one pushing for trial…and the reason we’ve been pushing to get the trial date…is because the Plaintiffs are sitting here with the ultimate remedy already. It’s not a damage case. We haven’t sold anything from the marketplace. There’s no dollars to get. What they want is injunctive relief keeping us out of the market. They have that. They have that today. They have it tomorrow. They have it up until the time the jury gets to decide this case. So we have been pushing for the trial, and they have – I don’t want to say they’re dragging their feet, but they don’t have an incentive to get it to trial.”
Attorney Catherine Nyarady of Paul Weiss Rifkind Wharton & Garrison, representing the Plaintiffs, countered that if BASF loses at trial, the company can be held liable for damages that Cheminova incurs by staying off the market. “So it is in our interest, and we have been incentivized from the beginning to get to trial,” she said. “It simply is not true that we have nothing to lose here … and there’s no harm to us. We don’t know that until the trial is over.”
Despite the concerns of both parties, Judge Osteen said the court is “plowing along as best we can,” pointing out there’s much to be done in the days ahead if the case is to go to trial in November. The court must address the summary judgment on the application patent, cross-motions for summary judgment on the manufacturing patent and motions to strike portions of the expert reports. He said, “…there’s no way I’m going to tell you we’re going to get all these motions done before the 11th (of October)… So I think we’re talking about four weeks after the 11th for a trial setting. So I think mid November, realistically … is about the best we can hope for…”
Complicating matters further is Judge Osteen’s full docket for the remainder of the year, as well as an upcoming staffing change at the Court, which could push the trial into mid-January, further delaying the final chapter of this widely-watched case, the ending of which remains in question.
The author is publisher of PCT magazine.
A Brief History of the Litigation
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 for the past 18 months have been 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 of 2010, 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." but in late May, Judge Osteen denied 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.)
In a press release from Makhteshim Agan Industries earlier this year, Erez Vigodman, president and CEO of MAI, said, “Fipronil has long been on our radar; its introduction strengthens our portfolio and provides us with another channel for profitable growth. As important, the launch is consistent with our strategic business direction to better address our global customers’ needs and is consistent with the business actions we completed over the last 18 months.”
Buberl said BASF’s customers are remaining loyal because they recognize the benefits of the Termidor franchise and have “full trust” in the brand. “They know that BASF is very, very committed to product stewardship around the Termidor brand, not only with the existing products we have, but also with the new innovations we’re going to launch into the marketplace over the next couple of years.”
NEW YORK — Disgusted subway workers say rats underground are multiplying and getting bolder, and are a health risk to them and passengers, according to an article on MSNBC.com.
Paul Flores, who has been a station agent for 12 years, said the problem is widespread.
"It's the same thing all over," he said. "Less trash pickups, the cans fill to the top and rats just eat off that."
The subway workers' union, TWU Local 100, has started a campaign called New Yorkers Deserve a Rat-Free Subway, and is urging commuters to sign an online petition in hopes of making a statement to the MTA.
Transit workers also demonstrated Wednesday in front of Jamaica Central Terminal where, according to both workers and passengers, a terrible rodent problem persists. Workers passed out pamphlets to riders and solicited signatures for their online petition, telling people, "If You Smell Something, Sign Something."