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Long before Kenneth S. Barrow became chief legal officer of Tympany, a medical device startup in Missouri City, he gave informal advice about patents to one of the company’s founders, a guy Barrow knew from the soccer fields and church. Tympany CEO Christopher Wasden worked as a business innovation consultant in 2000 when he met a doctor with ideas for a company that would make an automated hearing-test machine. Wasden knew companies, but he didn’t know patents, so he met over lunch a few times with his friend Barrow, an intellectual property lawyer, to pick his brain about patents. Those chatty lunches between Wasden and Barrow began in the summer of 2001. “I went to him and said, ‘This is what I’m trying to do. Can you get patents on this? How do you get patents? What is the process?’ ” Wasden recalls about the lunches. “ And he instructed me on the patent office . . . and how it works.” Barrow, then an in-house lawyer at Houston’s Sulzer Medica USA Inc., was able to guide Wasden informally for about a year-and-a-half. “He would help me review contracts and put transactions together. Some of the stuff he did, in a way, pro bono, with the expectation that if things worked out well with Tympany, he would come on board,” Wasden says. But after Tympany filed a provisional patent application in May 2002, Wasden says he needed to get some “real help,” so Barrow helped the fledgling company hire lawyers to help it file patent applications. Wasden says Barrow’s advice was invaluable to privately held Tympany, which launched its Otogram machine in 2003. While Tympany found its footing, the company where Barrow was working faced its own challenges. In December 2000, Sulzer, the Swiss-based medical-device company with U.S. headquarters in Houston, recalled more than 35,000 Inter-Op hip shells, a move that led to masses of personal-injury suits being filed in state and federal courts. Sulzer, later known as Centerpoint USA Inc., came to a $1 billion class settlement of the litigation, and last October, Zimmer Holdings of Warsaw, Ind., bought Centerpulse. Barrow says he had the opportunity to stay on at Zimmer, but that meant moving to Indiana, and he didn’t want to leave the Houston area. At the same time, Tympany already was selling the Otogram machine – it recently passed $2 million in sales – and Wasden asked Barrow to join the company as its chief legal officer. Barrow says he jumped at the chance. “It’s pretty refreshing to be a member of this team. I’m not involved in fixing things. I’m involved in building,” he says of the general counsel job he started in December 2003. He says plans for Tympany are indefinite, but the startup will either continue to grow as a private company, go public or be acquired. IP Help Barrow, 44, grew up in Louisiana and Texas and graduated from Eisenhower High School in Houston. He started college at Louisiana State University, but transferred to Brigham Young University, where he earned a degree in chemical engineering in 1985. He worked as an engineer at Unocal in San Francisco, but decided quickly “that just didn’t seem to be my calling.” He returned to Brigham Young and graduated from the J. Reuben Clark Law School there in 1990 and clerked for Judge Alan D. Lourie at the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., for two years. Barrow knew about Houston’s IP community because he had clerked for a summer at Arnold, White & Durkee (now Howrey Simon Arnold & White) while in law school. He accepted an associate position at Fish & Richardson and worked there until 1996. Barrow says he enjoyed private practice, but longed to be closer to a client and to have better control over his schedule so he could spend more time with his family. (Barrow and his wife are the parents of five children.) In 1996, David Wise, then the general counsel of Sulzer and a former IP lawyer at Houston’s Conley Rose, convinced Barrow to join his company as senior patent counsel. Wise and Barrow knew each other from being on opposite sides in some IP litigation. At Sulzer, where Barrow eventually became vice president intellectual property and assistant general counsel, he managed the company’s global IP portfolio. At the zenith of his management responsibilities, Barrow says he supervised five lawyers. But at Tympany, which has fewer than 30 employees, Barrow is the lone lawyer and about the 20th hire. Wasden says Barrow is responsible for IP, regulatory matters and corporate governance. “I’m surrounded by legal issues, but the good thing about that is you can pick any direction and you will be of some use,” Barrow says. Barrow says his IP background comes in handy because he knows how to help Tympany develop an internal portfolio of patents and learn how to manage it strategically. While Tympany executives have identified a couple hundred “revolutionary dimensions” that could be subject to patent, Barrow says it would bankrupt the company to seek them all. Tympany has filed 15 patent applications so far, he says, including the provisional patent application filed in May 2002 and 14 U.S. patent applications filed in May 2003. The company also has filed about 45 other disclosures, which is an indication the company will file a patent application for that innovation, he says. He says patent applications seeking international rights can cost as much as $100,000, including fees for lawyers and government fees. General practitioners use the Otogram machine for hearing tests in their offices, Barrow says, an alternative to having to schedule testing by audiologists at other locations. Barrow says part of his role as GC is to educate Tympany executives on the ins and outs of intellectual property. For instance, he says, it’s not wise to file too many patent applications. He says a company also should pick and choose which of its patents to enforce with infringement litigation. Barrow says he also is active in making sure Tympany meets regulatory requirements. While the Otogram device is exempt from approval from the Food and Drug Administration, Wasden says Tympany still must meet FDA manufacturing standards and Barrow worked in February on the company’s first FDA audit. With Tympany hiring sales representatives throughout the country, Barrow says he’s also working on sales rep agreements and international sales agreements. Barrow says it’s rare for a young startup such as Tympany to hire an in-house lawyer. But he believes it’s a good model because it will help Tympany avoid problems that might be created by executives making business decisions without input from a general counsel who knows the business. He also enjoys the atmosphere at a startup, where the employees are committed to the cause and aren’t distracted by office politics. Barrow says he uses Jenkens & Gilchrist shareholder Sharon Israel and associate Daniel Nguyen for IP work, along with Conley Rose shareholder Gregory Maag. For corporate and litigation work, he turns to Andrews & Kurth partner Larry Schreve. Nguyen says Jenkens has done patent work for Tympany since March 2003. Israel says she has known Barrow since they clerked together for Judge Lourie, and both worked as associates with Fish & Richardson. Although Barrow has only been GC at Tympany since December, Israel says she has had a good working relationship. “Ken is rightfully demanding when he needs to be, but he is not unreasonable. He has very good business instincts,” Israel says. Schreve, who did work for Sulzer when Barrow was an in-house lawyer there, says Barrow gives clear direction to what he wants from his outside counsel. “Sometimes it’s hard to get people to make decisions, but Ken is very good about taking control,” Schreve says. “His general management style is to be certainly in control and direct the course of the work he’s having outside counsel do. As long as he’s comfortable with your ability, he doesn’t micromanage.” Wise, Barrow’s former boss at Sulzer, says Barrow has the people skills to gain the respect of the management team. It also helps him outside the company, Wise says, recalling a time when Barrow managed a touchy strategic relationship with a physician who was licensing some patents important to Centerpulse Spine-Tech, a medical device company in Minneapolis. “That had always been a very contentious relationship and the subject of litigation for a long period of time, and Ken managed that situation very well,” Wise said. Wise, who left Centerpulse last October to become general counsel of Cyberonics in Houston, says he and Barrow went in-house at Sulzer with the goal of spending more time with their families. In his spare time, Barrow says he likes to hunt, fish and camp. He also coaches youth soccer and is active in scouting. But now as GCs, Wise says he and Barrow work long hours — a point Barrow concedes. Notes Barrow, “The difference is there is a lot to do.”

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