“I couldn’t paint a painting if my life depended on it.” Mark Vorder-Bruegge Jr. is holding forth in a formal conference room in the East Memphis offices of Wyatt Tarrant & Combs, LLP, where he has practiced since 1979. “There are a lot of things that I can’t do. But one of the things that I’ve been lucky in being able to do is that I look at things in a conceptual way.
“I can look at something and think of it the way that a law defines what is determinative about it. That’s just the way I think. A client brings you a situation, and you’ve got to be able to do two things: One, to see if it fits within the definition of a legal claim, if they’re being threatened, if their position fits within the definition of a defense. And then you’ve got to be able to look down the chess board — to form a roadmap of where a case is going, early.”
Without a roadmap, Vorder- Bruegge says, a legal defense can run the risk of getting “way off course.” Expensive, time-consuming, unproductive.
Vorder-Bruegge has specialized in intellectual property law for nearly his entire career, and his interests have evolved along with the technological evolution that has taken place over the same period of time. Intellectual property law, he points out, is nothing new: patent laws, trademarks, copyrights — these concepts go back centuries.
But as the economy has evolved to more of an information economy, versus an economy based primarily on physical property, the law has evolved to keep pace. Vorder-Bruegge defines intellectual property simply as “property that consists of ideas as opposed to tangible things.” An example? Vorder-Bruegge explains that he was involved in a case — on the defense side — where it was claimed that the defendant had stolen computer source code used in operating aircraft instrumentation — “altimeters, air speed indicators, things that are pretty important to the safe operation of airplanes.”
One challenge of arguing the kinds of cases Vorder-Bruegge tries, he mentions, is the learning curve — for the attorneys, for juries, for judges. To make a case, he and his team first must serve as educators. In the case of the computer source-code case, for instance, “We literally put the device on an oscilloscope and projected the oscilloscope screen up on a screen to the jury,” showing them fairly obvious differences between the defendants’ work and the allegedly stolen work.
Intellectual property litigation, Vorder- Bruegge acknowledges, gets expensive — one of the challenges of this practice area. “That’s not something that I’m happy about,” he comments. Experts, expert witnesses, expert consultants — it all adds up. “We have a concept called proportionality — making sure that discovery is proportional to the needs of the case, the size of the case, the resources of the parties. We’re not going to turn over every single rock if the cost-benefit is not there.”
Vorder-Bruegge comes across as fundamentally a pragmatist — whether in defending a client, or in his views on internet regulations, net neutrality, and the like. Google him, and you’ll find an opinion piece penned for The Commercial Appeal last December about the repeal of net neutrality — essentially, whether internet service providers, the Comcasts of the world, can throttle the flow of data from companies like Netflix.
But Vorder-Bruegge sees net neutrality as only one piece of the puzzle. In the op-ed, he wrote, “Rather than piecemeal anemic regulations like the net neutrality circus, it is time for ‘Net Integrity’ through coherent and honestly articulated public policy coupled with the necessary fortitude among our leaders in Washington to execute on it.”
And in our conversation, he says, “Net neutrality — I won’t say it was a red herring. It’s important. But it doesn’t focus on what the fundamental policy ought to be.” The fundamental policy, he says, should focus on a public good. The internet is, he says, “not quite up there with water and heat, but it’s pretty important. And the lesser of evils might be a more comprehensive regulatory approach.”
In Vorder-Bruegge’s view, Memphis is a fertile ground for intellectual property — in the creative world, as well as in local industries like biotechnology and freighting. “People might think that delivering packages is not a good example of high tech,” he says, “but if you look behind the way that thing works: a guy comes up in the elevator, scans a package, leaves it with the receptionist, and they can instantly track it. That stuff doesn’t happen by magic.”
Memphis, he says, “could call ourselves the center of this area of the country when it comes to intellectual property.” From medical startups to its musical heritage, a lot of ideas come from Memphis, and those ideas represent intellectual property.
Vorder-Bruegge is, he’ll readily admit, a bit of a computer geek. That’s part of what got him interested in this area of law in the first place: technology fascinated him. And he’ll argue that Memphis is a city for high-tech development, whether or not Memphians recognize this about the place.
And with that technology comes intellectual property, developed and maintained by people, often company employees who can, by the very nature of intellectual property, walk out the door with it. Vorder-Bruegge and his team work a lot of cases — from both sides — that hinge on employee mobility. That is, the phenomenon of an employee leaving and taking the product — which is an idea or set of ideas, stored in their minds — with her when she goes.
“In the olden days,” Vorder-Bruegge explains, “somebody couldn’t walk out of your business with all your tractors. Now, people that have customer information, pricing information, product design information, financial information — they’ve got a lot of it in their heads, and they’ve got access to a lot of it.”
He has seen over and over again that companies did not implement agreements with their employees from the beginning, or implemented agreements that failed to anticipate the scope of what could walk out the door with an employee.
Vorder-Bruegge will tell “every friend of mine I have in a medium-size or small business,” he says, “‘For heaven’s sake, use any lawyer you want. But look at your agreements with your personnel. And make sure that they are solid — that if you have somebody that does walk out with the crown jewels, you can go down to court and get some meaningful relief.’”
Some people call this non-compete, others talk about trade secrets, but Vorder-Bruegge prefers “employee mobility” because, he points out, “Employees are much more mobile now than they used to be. People don’t stay with companies for 50 years and get their gold watch. They move around.”
If you are preparing to talk with Mark Vorder-Bruegge, and you visit his professional bio, you may notice — reading down to the end — that he lists among his interests both “military intelligence” and “pipe organ,” along with computer technology and literature. And you may think to yourself, “Huh?” But when you ask him about his curious array of interests, it turns out that they all, in a circuitous way, lead back to his work in intellectual property law. Military intelligence: “This comes from my interest in information and how it’s gathered,” he says, “and sometimes not gathered so well.”
As for the pipe organ: Growing up in Memphis, Vorder-Bruegge went to private school, where the students attended chapel services every morning. At the end of each morning’s service, the church organist would play music as the children processed out of chapel. He took a liking to the music — “it wasn’t religious music,” he remembers, “opera marches and all this sort of thing” — so he began taking lessons on piano from that accompanist. She didn’t normally offer organ lessons, just piano, but she was willing to teach Vorder-Bruegge anyway. He grew up learning to play the pipe organ at Second Presbyterian Church.
He doesn’t get to play many pipe organs these days — “churches don’t want amateurs coming in and playing their pipe organs, when a service call from a technician is like a hundred thousand dollars” — but he still listens to organ music, and has even adapted some piano pieces to organ: a Chopin nocturne, a Wagner march.
He describes the process as a way of engaging with centuries of voices: church organs haven’t changed much since the time of Bach, and he enjoys the feeling of entering a musical conversation that is part of a shared cultural history. And, certainly, involved in this conversation is intellectual property — original work, endlessly reinterpreted.
After our conversation, Vorder-Bruegge is off to a board meeting at Ronald McDonald House, which houses parents and children who are in town for treatment at St. Jude. The research being conducted at St. Jude, he points out, is “incredible” — and very much centered around intellectual property. From photon-beam treatments for cancers to technology to experiment how different substances interact with cells, research at St. Jude is all about, again, “ideas as opposed to tangible things.” Al Green and Isaac Hayes, leukemia treatments and photon rays, computer coding and fine art: the world of intellectual property, Vorder-Bruegge says, “is all of that.”