A slew of firms filed this brief in the Maling case on August 20, and I’ve just seen it. It is an interesting read.
The response in Coalition for Affordable Drugs v. Celgene (IPR2015-01092) is here.
Here’s the introduction:
Celgene’s motion is littered with references to the Petitioner’s and Real Parties-in-Interest’s (collectively, “CFAD”) “admitted profit motive,” and makes the curious argument that filing IPR petitions with a profit motive constitutes an “abuse of process.” Yet at the heart of nearly every patent and nearly every IPR, the motivation is profit. Celgene files for and acquires patents to profit from the higher drug prices that patents enable. Generic pharmaceutical companies challenge patents to profit from generic sales. Celgene’s argument is in conflict with Supreme Court precedent expressly finding it in the public’s interest for economically motivated actors to challenge patents. See Lear v. Adkins, 395 U.S. 653, 670 (1969) (holding public interest requires permitting licensees to challenge validity because they “may often be the only individuals with enough economic incentive to challenge the patentability” and “[i]f they are muzzled, the public may continually be required to pay tribute to would-be monopolists”). Having an economic motive for petitioning the government simply does not turn the petition into an abuse of process.
CFAD anticipates that fees and costs to complete an IPR for a single drug is approximately $1 million dollars. There are a limited number of entities capable of making that financial commitment. And fewer can make such a commitment without the prospect of profiting from their efforts. The fact is CFAD’s motivations do not change the social value of its activities. Poor quality patents enable pharmaceutical companies to maintain artificially high drug prices and reap unjust monopoly profits paid for by consumers and taxpayers.
Celgene accuses CFAD of motives that are not entirely “altruistic.” That is a truthful irrelevancy. The U.S. economy is based largely on the notion that individual self-interest, properly directed, benefits society writ large. Celgene’s motive is to profit from consumers and taxpayers from drug sales. Celgene’s patent-conferred monopoly results in Revlimid prices that exceed $580 per pill—creating costs in excess of $200,000 per patient year. (See Exs. 1021-23, showing prices for three Celgene drugs protected by challenged patents.) Revlimid sales were nearly $5 billion in 2014. Celgene is not giving Revlimid or its profits away.
CFAD’s IPRs are part of its investment strategy, and it will only succeed by invalidating patents, which would serve the socially valuable purpose of reducing drug prices artificially priced above the socially optimum level. And even if, despite its best efforts, it does not profit—each petition that knocks down a barrier to generic entry benefits the public. It should be axiomatic that people do not undertake socially valuable activity for free—not Celgene, not generics, not shareholders, and not investment funds. Low drug prices will not simply materialize. They must be brought about by agents who will invest significant capital and do the hard work of identifying and challenging weak patents. Generics sometimes serve this function. But the law does not render it “abuse” for others, including CFAD, to also play this important societal role.
I can’t find it on line, but it’s Milwaukee Electric Tool Corp. v. Hilti, 2015 WL 1898393 (E.D. Wis. Apr. 27, 2015). DLA Piper was representing Snap-on Tools. Another client asked it to sue several potential infringers, one of which was Snap-on. The firm appeared in all of the cases — all of which involved the same patent — against every defendant except Snap-on.
Snap-on moved to disqualify DLA Piper. It contended that, by representing the patentee against the non-clients, it was adverse to Snap-on. Basically, the argument that has been made (in this circumstance in several patent cases, and in other contexts) is that a lawyer should not be a part of building a case against his own client.
The court discussed the three other patent cases on this issue, and some of the other cases, but denied the motion to disqualify. It found that DLA Piper was not adverse to Snap-on, but it noted that it was a very close question.
Here’s my question: obviously, DLA Piper cannot coordinate with those lawyers who are adverse to Snap-on. (I can’t do out of court what I couldn’t do in it.) How can a law firm competently represent a patentee in an infringement suit without coordinating arguments (claim construction, etc.) with other counsel? For a discussion of those issues, see Arrowpac Inc. v. Sea Star Line, LLC, 2013 Wl 5460027 (M.D. Fl. Apr. 30, 2013).
This case is somewhat like the Akin Gump case, discussed below, which resulted in a $500,000 judgment against that firm.
By David Hricik
I’d normally only put this on the ethics page, but Dennis is on vacation and this issue pops up a lot in patent practice.
Suppose you get a call from a third party about a matter you’re handling for a client. She tells you that she had written a blog post about a prior dispute she had had with your client, which your client had paid to settle. Per your request, she emails you a link to the blog post. You forward the link to a friend, saying nothing about it other than “this is interesting.”
Did you do anything wrong?
The information you forwarded was not privileged: it came from a third party, so that doctrine doesn’t apply. But, lawyers’ obligation of confidentiality extends far beyond privileged information, to protecting “confidential” information. Whether information is “confidential” turns on applicable law, and in some states it includes even information that was publicly available when the lawyer was representing the client. Generally, confidential information must be kept confidential if revealing it would be detrimental to the client, or former client, or the client had asked it not be revealed.
The California bar association has a proposed bar opinion that would make it clear that, while not privileged, even public information must be accorded protection as confidential information. The California bar has asked for comments, and you can do so here, and find the entire opinion.
Now think about patent practice. You learn about a piece of prior art while representing Client A. For whatever reason, it wasn’t pertinent to Client A’s application, so you didn’t disclose it. Patent issues. Matter ends.
Now you’re representing Client B in prosecution. You remember that piece of prior art, and if you disclose it in Client B’s case, it is more likely that Client B will get a patent that, let’s say, will aid it compete with former Client A. Can you? Must you?
There are a lot of ways this issue comes up in patent practice, and some states like this proposed California opinion take a counterintuitive view of what is confidential.
Be careful out there and be sure to think about whether the USPTO rules, or your state rules, would control on that question.
by David Hricik
Over on the main page, Dennis has done a good job laying out the court’s “analysis” in Versata v. SAP of whether section 101 is a defense to invalidity. The court recognized that, by the text of the statute, it is not.
But, it reasoned that because, today, section 101 challenges are a cottage industry, that that interpretation must be wrong. It cites to dicta from old Supreme Court cases. And, it says basically, “well, people are doing it so it must be right.”
Um, wrong: See Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 177 & 191 (1994) (overruling six decades of case law implying a cause of action), superseded on other grounds by 15 U.S.C. § 78(t)(e). Whatever a court says a statute says, the Constitution makes paramount what the enacted text actually says. Courts can get something wrong for a long time; a judge’s Constitutionally required job is not to continue the nonsense; it is to stop it.
The fact is that no court has ever actually analyzed whether 101 is a defense, particularly after 1952, when (I believe) Congress meant to get rid of this “inventive concept” and other nonsense that courts had, previously, read into the word “invention” in what was then 101. Congress put all of those odd requirements into the objective section 103. But… the point is: no court has analyzed the text — about whether “eligibility” is a defense to any infringement suit (and obviously not in CBM proceedings), and when this court did, it recognized the text did not support Section 101 as an invalidity defense.
That should have been the end of the inquiry, absent (a) an absurd result; (b) ambiguity; or (c) some other narrow exception to ignoring the plain text. But the panel went further, and suggested that some sort of history precluded giving the statutory text its plain meaning. (I wrote a book on statutory interpretation; I won’t bore you with the details.)
Let’s go past the text and look for some strong reason to ignore its plain meaning. What is this evidence?
Courts sometimes use the purpose of a statute to interpret it. Likewise, they look at legislative history to discern meaning or to find purpose. What if there was some huge committee report droning on about 101 and so on? We should likely take that into account.
But it’s not there.
The legislative history shows that the purpose CBM was adopted to address shortcomings with the PTO’s ability in the late 1990’s to find prior art, and that was Congress’s intent. The House report makes clear that the purpose was to deal with the perception that in the late 1990’s, the PTO had not found the best prior art to apply under sections 102 and 103:
A number of patent observers believe the issuance of poor business-method patents during the late 1990’s through the early 2000’s led to the patent ‘‘troll’’ lawsuits that compelled the Committee to launch the patent reform project 6 years ago. At the time, the USPTO lacked a sufficient number of examiners with expertise in the relevant art area. Compounding this problem, there was a dearth of available prior art to assist examiners as they reviewed business method applications. Critics also note that most countries do not grant patents for business methods.
The Act responds to the problem by creating a transitional program 1 year after enactment of the bill to implement a provisional post-grant proceeding for review of the validity of any business method patent. In contrast to the era of the late 1990’s-early 2000’s, examiners will review the best prior art available….
H. Rep. 112-98, at p. 54 (June 1, 2011) (emphases added). Thus, the committee report shows that the purpose of the amendments adding CBM is consistent with the statute’s plain text: to allow people to bring CBM to show that the invention was not new or would have been obvious in light of “the best prior art available.” The report emphasized the lack of “a sufficient number of examiners with expertise in the relevant art area.”
Conversely, nothing in the House report mentions the failure to recognize “abstract ideas” or the failure to properly apply Section 101. Further, it is absurd to suggest that in the late 1990s lack of access to prior art or lack of sufficient examiners with familiarity with prior art had any impact on the ability to determine what is a “law of nature,” or “abstract idea,” or the like. Indeed, courts are doing this now on 12(b)(6) motions based on their own “evidence”(?) of what is known, etc.
So, so far: purpose and history, based on the “good” legislative history (committee reports and such usually get more weight than other stuff), 101 is not a defense.
What about random statements of legislators? Once you get into random statements, the legislative history of the AIA on this transitional program is, like almost all legislative histories in this granular level, murky. I have reviewed the remarks made on the Floor of the Senate, and there is no doubt that a few members of Congress mentioned business method patents. A fair reading is that at least some members of Congress thought the source of the problem to be addressed was with “abstract” patents, while others believed the failure to consider the most pertinent prior art was the source of the problem.
I have also considered other aspects of the legislative history that this panel didn’t cite. For example, then-Director Kappos observed: “a key House Committee Report states that ‘the post-grant review proceeding permits a challenge on any ground related to invalidity under section 282.’ H.R. Rep. No.112-98, at 47 (2011).” Yet, it is undeniable – and the Versata court held — that the text of the adopted statute points to only two subsections of Section 282, and so this sentence from that report flatly contradicts the enacted statute. (It accurately reflects the text at the time Kappos spoke; but Congress didn’t adopt it.) A sentence in a committee report that directly contradicts the enacted language does not control. As with most bills, the legislative history of the AIA contains many statements that are not the law, and a few that contradict the enacted statute.
Others have pointed to this statement from a senator from Arizona, Senator Kyl: “section 101 invention issues” were among those “that can be raised in post-grant review.” 157 Cong. Rec. S1375 (daily ed. Mar. 8, 2011). Relying on this statement for the proposition that eligible subject matter is covered by the text is doubly problematic. Foremost, “section 101 invention issues” is not in the enacted text, as the Versata court correctly held. Further, the Supreme Court has long and repeatedly rejected relying upon one legislator’s statement as having been enacted into federal law. Doing so jeopardizes the Constitutional requirements of enactment and presentment. This is especially true where, as here, that statement contradicts the plain text as well as other more weighty evidence of legislative intent. Those sources – which, if entitled to any weight — are entitled to more weight than one Senator’s floor statement – contradict Senator Kyl’s subjective interpretation of the statute. Again, however, I believe none of this matters here.
So, at best, there is some slight indication that a few members of Congress thought that “abstract” patents (whatever that might mean”) is the problem.
But it is long-settled there has to be some reason, much stronger than a few random statements, to ignore the plain text of an enacted statute. What controls is the language Congress enacted, not our speculation about the intent of a handful of elected representatives.
Let’s go further.
Sometimes courts interpret statutes in light of existing case law, and that’s what the Versata court relied upon. Well, what about case law, and the notion this court adopted that there’s some sort of “long-standing” understanding that 101 is a defense. This is weird: despite the plain language, and despite Congress knowing that 101 should be a defense, it did not list it. Think about judicial activism for a moment.
And let’s be real here.
First, post-1952 it was not until Myriad that there was a challenge in the Supreme Court to an issued patent based on 101. All the others were fights with the PTO. No one in Myriad litigated whether 101 was a defense in terms of section 282. It’s not, as even this panel recognized.
So, saying there’s some long-standing line of cases from the Supreme Court is simply wrong: there’s now two cases, one just decided (Alice). Further, we all know that 101 defenses were about as rare as a blue zebra until a few years ago.
But maybe there is some long-standing interpretation, even in dicta?
Wrong. If you read the authority relied upon by the court, they don’t support the this “history” at all — instead they undermine it.
Foremost, the Supreme Court case relied upon is Graham v. John Deere Co., 383 U.S. 1 (1966). That famous case about Section 103 had nothing to do with whether “eligible subject matter” was a condition for patentability, and did not decide that issue. Instead, in dicta analyzing the “condition for patentability” in Section 103, the court noted:
The Act sets out the conditions of patentability in three sections. An analysis of the structure of these three sections indicates that patentability is dependent upon three explicit conditions: novelty and utility as articulated and defined in § 101 and § 102, and nonobviousness, the new statutory formulation, as set out in § 103. The first two sections, which trace closely the 1874 codification, express the ‘new and useful’ tests which have always existed in the statutory scheme and, for our purposes here, need no clarification. The pivotal section around which the present controversy centers is § 103 . . . .
383 U.S. at 12-13.
That statement actually undermines the argument that “eligible subject matter” is a condition for patentability.
Graham explains that the Patent Act of 1793 had only two conditions for patentability: utility and novelty (both of which were once in the same statute, a precursor to sections 101 and 102). Id. at 10 (“Although the Patent Act was amended, revised or codified some 50 times between 1790 and 1950, Congress steered clear of a statutory set of requirements other than the bare novelty and utility tests reformulated in Jefferson’s draft of the 1793 Patent Act”). The Graham Court recognized that in 1952 Congress had added a third condition, non-obviousness. See id. at 14 (“Patentability is to depend, in addition to novelty and utility, upon the ‘non-obvious’ nature of the ‘subject matter sought to be patented’ to a person having ordinary skill in the art.’”) (quoting Section 103).
So… the Graham case suggests — if anything, as it is dicta — that “eligible subject matter” is not a condition for patentability. If Graham stated that utility, novelty, and non-obviousness were the three conditions for patentability, then the Court’s statement that there are “three conditions” means “eligible subject matter” is not one: if “eligible subject matter” were also a condition for patentability, then there would be four, not three, conditions.
The panel also cites dicta in a footnote in Aristrocrat Techs., Austl. PTY LTd. v. Int’l Game Tech., 543 F.3d 657, 661 (Fed. Cir. 2008). Although the merits of a Section 101 issue was decided in Dealertrack, the patentee did not contend that Section 101 was not a statutory defense, and the court did not decide that issue. Further, dicta in that case traces directly back to the dicta from Graham. So, there is no long line of cases that, somehow, Congress knew about and intended to adopt.
Worse, there is loose language in other cases saying exactly the opposite, that only 102 and 103 are conditions of patentability (i.e., are consistent with the plain text.). For example, the Federal Circuit has stated: “The two sections of part II that Congress has denominated ‘conditions of patentability’ are § 102 . . . and § 103 . . . .” Myspace, Inc. v. GraphOn Corp., 672 F.3d 1250, 1260-61 (Fed. Cir. 2012). The Supreme Court made essentially the same observation in Diamond v. Diehr, 450 U.S. 175, 190-91 (1981).
So… in fact there is no case law supporting this history, and instead the “case history” is, at best, split and unclear.
The important fact to me is that none of these cases parse the statutory text, or examine the purpose and legislative history of the AIA discussed here. Ignoring the actual text in favor of what courts have said a statute says is obviously incorrect. In that regard, the Supreme Court has overridden judicial interpretations of statutes that failed to adhere to the text, and has done so even after decades of having lower courts adhere to those incorrect constructions. See Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 177 & 191 (1994) (overruling six decades of case law implying a cause of action), superseded on other grounds by 15 U.S.C. § 78(t)(e). Whatever a court says a statute says, the Constitution makes paramount what the enacted text actually says.
To sum up, absent some good reason to ignore the plain text, in my opinion random statements from one or two legislators and dicta in cases does not control. Dicta in cases that do not analyze the statutory text do not control. A committee report that flatly contradicts the enacted text does not control. And one Senator’s opinion is not enacted statutory text.
I understand why the panel did what it did. But the Constitution is more important than judicial politics.
Finally, let’s be real again: if you look at what Congress did in 1952, it was to get rid of this subjective nonsense. I strongly believe that then Chief-Judge Rader’s opinion, and “additional views” in CLS Bank v. Alice (which, textually, this panel confirmed in holding 101 is not even a listed defense) need to be raised and litigated. Statutes should matter.
(You can find the original version of this, with citations and footnotes at:
I did a canvas of post-Octane 285 cases a while back, and found it curious that district courts were continuing to evaluate fee shifting based, in part, on whether the arguments made by the loser had been “objectively frivolous.” That, of course, is not required to shift fees post-Octane.
But perhaps it should be; or, to put it a different way: courts should interpret 285 in light of Rule 11.
To the extent that a gap develops between Rule 11’s requirements on lawyers — pursue arguments so long as non-frivolous, to summarize it bluntly — lawyers who represent their clients within the bounds of Rule 11 can have their clients pay fees under 285. This will dampen lawyer zeal.
So, while perhaps statutory interpretation principles show Octane was right in rejecting the Brooks Furniture approach, determining what an exceptional case is should, nonetheless, have some mooring to Rule 11.
The Federal Circuit seems to be following the district court’s lead in applying the pre-Octane standard under the guise of Octane. A recent case is Gaymar Indus. Inc. v. Cincinnati Sub-Zero Products, Inc., (Fed. Cir. June 25, 2015).
The book I’ve co-authored with Mercedes Meyer has been reviewed in JPTOS by the editor in chief. Here’s a snippet:
Patent Ethics: Prosecution is a comprehensive meditation on the complicated world of prosecution ethics. The book is illustrated with real world examples and includes substantial discussion of the varying case law on the many ethical dilemmas faced by patent practitioners. While the case law is often murky, the Authors’ analysis is clear and straightforward. It is an excellent reference on a matter that few practitioners truly understand.
By your copy now by clicking Amazon.
Rich Products Corporation asked Kenyon & Kenyon to file applications in Mexico and Columbia. Apparently, the firm timely filed the Mexican application as of how the law was then-interpreted; but the law later changed, and the application was deemed filed too late. Rich Products then sued the firm for malpractice. The New York Supreme Court, Appellate Division, held that because malpractice is measured at the time of the events, the lawyer had breached no duty. The case is here.
This is something I often think about, given the changing nature of the “rules” about claim interpretation. For example, certain claim formats have grown less helpful over the years. I also wonder how much this defense works if it’s a foreseeable change in the law (it’s not clear here what, exactly, changed in Mexican law).
The case was remanded to figure out the Columbian claim.
In this order in Coalition for Affordable Drugs v. Celgene, the PTAB authorized Celgene, the patentee, to file a motion for sanctions based upon the premise that the Coalition was using IPR to affect Celgene’s stock price, not for legitimate purposes. This is interesting, pitting lawyer’s obligations of competent and zealous representation and the First Amendment right to petition against the IPR scheme. Stay tuned to see, among other things, if the PTAB comes up with some federal patent law of abuse of process….
I learned just the other day that Pacer posts CAFC opinions more than an hour before they become available on the court’s web page. If you’re of record in the case, you get the usual notification, and so you’ll know of the opinion — and outcome — before most people, and could take advantage of that “public” information to make some money on the market.
I don’t know securities laws, but this seems like it could be a problem for that and other reasons. No?
My book on ethical issues in patent litigation (shameless plug there!) spends a significant amount of time on prosecution bars. They create more issues than most people think, and deserve careful attention by counsel. Perhaps because of the difficulty of policing violations, there are not many decisions addressing what to do if there is a violation.
Magistrate Judge Grewal out in the Northern District of California recently faced that. The defendants learned that the plaintiff’s expert had prosecuted a patent application in a “barred” area. The magistrate ordered the expert to return the information he had received during the suit, to not use any information he remembered for any purpose, and excluded the expert as a witness in the case. The magistrate, however, pointed out that the plaintiff could retain another expert. It did not award any costs. Avago Technologies Fiber IP (Singapore) PTE. Ltd. v. IPtronics Inc., 5-10-cv-02863 (N.D. Cal. June 11, 2015) (Grewal, M.J.). (Opinion here.)
There are lessons all around. For experts, it is to understand what these bars mean. For counsel, it is to ensure that experts understand what those bars mean. For everyone, it means to use reasonable care to ensure compliance — by your team as well as the other side’s.
Hi, all. I’m doing some speaking and writing on IPR ethics. I’ve read Professor Dolak’s article (an earlier version is here; I couldn’t find the recently published version on-line). I’m not sure I agree with her 100%, but it’s a very good piece.
What ethics issues have you run into (or, more precisely, have you heard others have run into) during post-grant proceedings? I’d love to know because that’s where my writings are headed next.
Been thinking about it for a while. One obvious thing is the fun games that a lawyer will play in deciding what “inconsistent” information he must submit. Others?
In recent months, a few services have come online that provide ways to determine, among other things, whether a particular examiner has longer pendency, more rejections, and so on, than others. Can be useful information to see how long you can expect a case to remain pending, for example.
What I was shown, however, was that some lawyers are taking those reports to examiner interviews and, it seems, saying in effect, “look how slow you are compared to your colleagues.” This seems questionable to me. It’s not merits-based. I’d also be really suspicious of lawyers who do not make those documents of record.
I am not sure if the PTO will take a stand on this, but I wouldn’t want to be the test case.
What do you all think?
A practitioner serving as in-house counsel to Eli Lilly was disciplined by the state bar for having taken data from his employer upon his departure, knowing that it was wrong to do so. As required, he notified the OED of this discipline, and the OED in an agreed order issued reciprocal discipline in In re Cohen (OED Proc. No. D201512), available here.
On a panel with Will Covey of the OED and some other big shots about prosecution ethics. This is after 6 hours for PRG. A month off after this. Program for today is here.
As you know, a US application must still disclose the best mode. The statute’s language and its legislative history (and the fact that the statute still says best mode!) demonstrate that beyond doubt. However, the AIA made it so that a best mode violation cannot lead to invalidity or unenforceability (among other things).
I’ve been repeatedly told that practitioners are being asked by clients to omit the best mode, particularly in bio/chem areas where it may be best. That is, claim around the best mode, etc.
The PTO’s position is that best mode is required to issue a patent; as a result, leaving it out leaves out information material to patentability. So you must include it.
How do you get a client’s interest to align with your own? You candidly have to advise them that the patent will not be invalid/unenforceable if they leave it out. So what downside?
My thoughts have always been that, though by itself its omission cannot now lead to invalidity or unenforceability, perhaps evidence of its omission could be used to bolster intent to deceive, or affirmative egregious misconduct.
Yesterday, while speaking at the PRG program in Orlando (for six hours, just me, on ethics and professionalism — we had a great time, really!), someone suggested that it could also be used in the ITC; you have to be practicing your invention to have a domestic industry. If you’re not…
Any other thoughts?
I teach, in addition to ethics and patent law, federal civil procedure. So, I enjoyed and sent to my students this case, Insite Vision Inc. v. Sandoz, Inc., (Fed. Cir. Apr. 9, 2015) (Linn-auth; Prost; Newman). The district court’s order denying the defendant’s motion to amend the final pretrial order was affirmed. Apparently, the defendant had left off of the final pretrial exhibit list a file history from counterpart EPO patents that would have assisted its obviousness defense.
Now, of course, there are plenty of reasons things are left off of exhibit lists, but I teach my students that if you leave something off the list, or a witness or depo degs off of it, the odds of it getting changed are slim to none in many instances. “Manifest injustice” is the standard, and it’s higher than “good cause” to amend a scheduling order and is further subject to an abuse of discretion standard of review.
Curious to see if there’s anything else that happens.
(Sorry for the long time between posts. Buying a house and teaching an extra IP course this semester!)
Had the pleasure of providing CLE to Townsend Townsend & Crew back in the day and sparring (occasionally) with Mr. Vapnek. He brought a lot to IP ethics, particularly in California.
There’s a story here, with links.
Monroe Freedman was an enormous leader in the field of legal ethics, and a great guy. The NYT has a nice piece here. A truly deep thinker and a gentleman. He will be missed.
The OED publishes its public decisions in the “FOIA Reading Room,” here. Although I’m sure you look there regularly, in case you miss a day I check every week or so for new cases.
There hasn’t been one since the end of December.
A two month ‘gap’ hasn’t happened since August-October 2012.
So, you all must be being more ethical? I hope so. But it also probably has something to do with the switch from Director Moatz to Director Covey.
But I’ve been an expert for the OED, and I’ve been an expert against it, and I’ve represented lawyers against it, and I’ll tell you: stay away from the OED. I refer to it as a gila monster: slow moving and sorta cute, but once it bites it hangs on.