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Attorneys

Best of Luck to California Chrome!

May 30 2014

By Audrey A. Millemann

Let me start with a disclaimer.  This column is not really about intellectual property.  It’s about the unexpected – what happens when people stick to their principles and challenge the way it’s always been done.  Actually, this column is about a horse.  (But I’ll say something about intellectual property along the way.)

I have a second disclaimer.  I do not like horseracing.  It is physically stressful on the horses (who are mostly two and three–year olds) and they frequently get injured.  It is also a sport that often treats horses as disposable commodities; many racehorses are sent to slaughter after failed careers, although that is changing.  But this is a story with so much goodness, it has to be told.

First, the horse.  He is California Chrome.  He’s a three-year-old thoroughbred racehorse.  He now has a large fan club of “chromies” on social media everywhere.  The press calls him the Cinderella horse and the Sacramento Bee’s cartoonist Tom Meyer even portrayed him as a commencement speaker in Tuesday’s paper.  The press didn’t call him anything until he won the Kentucky Derby, the first leg of the Triple Crown, on May 3.  He was definitely under the radar, born and raised in California and starting his racing career here, in a sport dominated by Kentucky-bred horses.  Then there were those who said he couldn’t win the Preakness Stakes, the second leg of the Triple Crown.  On May 17, he won that one too, against a field of mostly fresh horses (horses who had not raced in the Kentucky Derby two weeks earlier and had had longer times to recuperate).

California Chrome is a chestnut colt with a white blaze and four white stockings.  Chestnut is a color like a shiny new copper penny.  The white markings are called “chrome” in horseracing.  His name was picked by a waitress out of several choices provided by the owners.

California Chrome was born in 2011 in Coalinga, California.  California Chrome’s sire (father) was Lucky Pulpit, who won some races in California.  His dam (mother) was Love The Chase, who won one of the six races she ran.  California Chrome was her first foal.

Trainers of other horses have observed that California Chrome has an easy-going personality, doesn’t get overly anxious going into the starting gate, and knows how to control his speed.  I could go on and on about this horse (or any horse for that matter), but I’ll move on.

Next, the owners.  Two couples, the Martins from Yuba City and the Coburns from Topaz Lake, Nevada.  The Martins have a testing lab located at McClellan; Steve Coburn works for a small company that makes magnetic strips; and Carolyn Coburn recently retired.  The two couples were part of a group in Northern California who had purchased Love The Chase for $30,000.  Because she lost most of her races, the ownership group decided to sell her on the recommendation of the trainer.  The two couples, new to horseracing and never having met, saw something special in her, and bought Love The Chase for $8,000, thinking she might be a good broodmare.

The Martins and Coburns entered Love The Chase in two races, both of which she lost.  Then they decided to breed her.  Someone in racing circles apparently told them they were “dumb asses” for deciding to breed Love The Chase.  The Martins and Coburns later named their partnership “Dumb Ass Partners” and designed a logo of a jackass in purple and green, their chosen racing colors.

Before breeding her, the owners did their research.  They learned that Love The Chase was descended from some very successful racehorses, including Northern Dancer, who won the Kentucky Derby and the Preakness in 1964, and Swaps (called “the California Comet”) who won the Kentucky Derby in 1955 and was a descendent of Man O’War.  They bred Love The Chase to a 10-year-old stallion named Lucky Pulpit, who had won three of his 22 races, and was descended from Seattle Slew, the 1977 Triple Crown Winner.  The stud fee was $2000.  California Chrome was born a year later, in February 2011.  Since then, the Martins and the Coburns have bred the same pair of horses two more times, producing two fillies.

The owners were offered $6 million for a 51% interest in California Chrome before he won the Kentucky Derby.  The new owner would have moved the horse and changed trainers.  Their answer: “Hell, no.”  The owners were also offered $750,000 (plus $250,000 for each Triple Crown race that California Chrome won) for Love The Chase, the filly they had bought from the ownership group because the trainer thought she was worthless.  In fact, the offer came through the same trainer.  The answer: you guessed it – not a chance.

The trainer.  The couples chose Art Sherman in Southern California.  Sherman, 77 years old, had a small training stable in Los Alamitos and a reputation for being a patient trainer.  Sherman, a jockey for 21 years and then a trainer since 1976, had won over 3000 races as either a jockey or a trainer.  The couples asked Sherman to train their “Derby Horse.”  Sherman had no previous experience training a horse for the Kentucky Derby, but he had been there before.  In 1955, he was the exercise rider for none other than Swaps, and, at age 18, had ridden in a boxcar with Swaps from California back to Kentucky where Swaps won the Kentucky Derby.  The two couples thought Art Sherman and his son, Alan Sherman, were the right ones for California Chrome, a six-generation descendent of Swaps.

Then there is the jockey – Victor Espinoza.  He was born in Mexico and learned to ride on a donkey.  He became a jockey at the suggestion of his brothers, at least one of whom was also a jockey.  He put himself through the jockey training school driving a bus in Mexico City.  In 2002, Espinoza rode War Emblem to win the Kentucky Derby.  He had watched films of California Chrome and told his agent he liked the horse and wanted to ride him.  As it turned out, California Chrome had raced six times with another jockey and Art Sherman was making a switch.  Espinoza jumped at the chance and rode California Chrome to six straight wins in 2013 and 2014, including the Kentucky Derby and the Preakness.  The owners and trainers say that Espinoza and California Chrome are a perfect match – that they work together – and sometimes one makes a decision and sometimes the other does.  Espinoza is enthusiastic about California Chrome and graciously gives the horse all the credit.  And Espinoza is a generous man – he donates 10% of his earnings to the City of Hope in Los Angeles to help children fight cancer.

So, it couldn’t happen to a better team: the horse, the owners, the trainer, and the jockey.  To win both the Kentucky Derby (1 and ¼ miles) and the Preakness (1 and 3/16 miles) is an amazing accomplishment, especially for the horse.  It is a terrific strain to run these races, and to win three races in five weeks is extremely difficult.  I hope they win the Belmont on June 7, not because we haven’t had a Triple Crown winner since Affirmed in 1978, but because they deserve it.

For those who think horseracing is just a matter of a jockey climbing on board a horse and pushing them to run, consider this.  What other sport requires such a close connection between a person and an animal?  As with all of the equestrian sports, horseracing involves the horse – who has a mind of its own.  It’s not like driving a car or a motorcycle, where you turn on a switch, or swimming or skiing, where the laws of physics govern, or even like basketball or baseball, where the team members can speak to each other in the same language.  In horseracing, a jockey weighing about 115 lbs. sits atop a horse weighing about 1000-1300 lbs. for a distance of a mile or more at speeds up to 40 mph.  The risk to horse and jockey is great, and mental toughness is required because that top speed can only be maintained for about ¼ of a mile, so horse and jockey have to decide when to push and how hard to push..

Now where is the intellectual property in this story? When he races, California Chrome wears a breathing aid called a “Flair strip.”  The strip looks like a band-aid and fits across the horse’s nose.  (Chromies have now taken to wearing purple band-aids on their noses in honor of California Chrome’s racing colors.)  The Flair strip is a “nasal support device” – a non-drug adhesive strip that physically supports the nasal passages of a horse during exercise.  Because horses breathe through their nose and cannot breathe through their mouth, their nasal passages partially collapse during vigorous exercise.  This impedes air flow, which limits oxygen to the lungs.  The Flair strip prevents the partial collapse of the nasal passages, increasing air flow and oxygen.  The Flair strip also prevents the rupture of the small capillaries in the lungs, a dangerous bleeding condition that can occur during strenuous exercise.

“Flair” is a federally registered trademark.  A trademark covers a word, phrase, logo, or design that is used by its owner in interstate commerce to indicate the source of a product or service.  A trademark gives the owner certain rights against infringers and protects consumers from confusingly similar trademarks.

The Flair strip is also patented.  It was invented by two veterinarians, who hold a number of patents on the Flair strip, and has been in use since the late 1990s.  The patents cover the device and the method of using it.  A utility patent covers an invention, which can be a machine, article of manufacture (such as the Flair strip), a composition of matter, or a process (such as the method of using the Flair strip).  To be patentable, the invention has to be novel and nonobvious.  A patent gives its owner the right to exclude others from making, using, selling, offering to sell, or importing the patented invention in the United States.

California Chrome has worn the Flair strip since last fall, when owner Perry Martin suggested that he wear it.  The strip is legal in almost all jurisdictions, and other racehorses have worn it.  New York was one state that had not approved it, but they did so after California Chrome won the Preakness in response to the request of Art Sherman.

Will California Chrome win the Belmont and become the 12th horse in history to win the Triple Crown? I don’t know, but a lot of people will be watching.  The owners of Affirmed and Secretariat, the Triple Crown winners in 1978 and 1973, respectively, will be there, as will jockeys who won the last three Triple Crowns, in 1978, 1977, and 1973.  I will be cheering for California Chrome, but mainly I hope for a safe ride, with no injuries to any horse or jockey, and a long, healthy life in retirement for California Chrome.  I may even wear a purple band-aid on June 7.