A Patent Lie

by Paul Goldstein

  “I told you,” Barnum said, “she's a crackpot.”

  St. Gall's concession that Steinhardt invented AV/AS first would explain why only two lawyers, Thorpe for St. Gall and Pearsall for Vaxtek, were present when Thorpe deposed Steinhardt. For a witness this important, the deposition room would usually be crowded with lawyers and experts from both sides to advise the two principal lawyers as Thorpe pressed the scientist to pin down the exact moment that he completed the invention.

  Barnum said, “Is that your only loose end?”

  “So far,” Seeley said. “I still have two more shelves of depositions to read.”

  “Did you get your pro hac motion granted?”

  “Chris Palmieri's taking care of it.”

  Barnum gave him a doubtful look. “What do you think of him-Palmieri?”

  “Why?” Seeley remembered Palmieri's uncertainty about joining him at counsel's table.

  Barnum said, “It didn't seem to you that he's maybe… a little light in the loafers?”

  As he spoke, Barnum moved and Seeley caught a warning look from Leonard. It took him a moment to understand what was on Barnum's mind. The trim build, the close-cropped hair, the pink pocket handkerchief.

  Seeley said, “That's none of my business.”

  “If you want to win this case, you'll make it your business. The jury's impression of Vaxtek, what kind of company we are, is what they see when they look at counsel's table. I don't want them to see a queer sitting there.”

  Seeley decided not to ask Barnum how many jury cases he'd tried. “If you count up who a lot of the AIDS victims are in San Francisco, I'd think having him at counsel's table would be an advantage.” It was cheap tactical point that Seeley regretted as soon as he made it.

  “There's a big difference between the San Francisco you read about in the newspapers and the San Francisco that sits on a federal jury.”

  Leonard had come around to the front of his desk. “Mike has a great track record with juries. I'm sure he'll pick his jurors carefully.”

  “Not before Ellen Farnsworth, he won't.” Barnum's eyes hadn't moved from Seeley's. “She runs her own voir dire. She picks the jury.”

  Seeley reminded himself that he hadn't yet done his research on District Judge Ellen Farnsworth, who would preside at the trial.

  Seeley said, “Palmieri's the only one on the team who knows where the evidence is. He has all the exhibits and depositions indexed and cross-indexed on his laptop. If he's not next to me, I can't cross-examine witnesses.”

  “Get someone else on the team up to speed.”

  “No. I already told Palmieri it's going to be him.”

  Barnum turned to Leonard. “Your brother's a real piece of work.”

  “I already told you, if you don't want me to run your trial, I can be on a plane tonight.”

  “I'm going to be up there with you at counsel's table.”

  Barnum would use his bulk, Seeley thought, to hide Palmieri from the jury. “That's fine,” Seeley said. “So long as there's room.”

  “I might as well tell you now, I'm not like other GC's you've worked for. They see a trial coming and they run the other way. My first job out of law school was in the San Mateo County DA's office. I like going to trial and, when I get there, I keep a tight grip on the wheel.”

  Seeley said, “I'm sure you've taken the company's trial work to a new level.”

  After Barnum left, Leonard said, “You haven't lost it, have you? Your talent for pissing off a complete stranger.”

  “My only interest is in winning this case. But I'm not going to let your general counsel abuse my team.”

  Leonard unfolded and buttoned a sleeve of his sport shirt. “Ed's okay. Give him some room.” He buttoned the other sleeve. “Steinhardt's waiting for you. I'll take you to his office.”

  Seeley followed Leonard down a carpeted corridor lined with rows of cubicles, only a few of them occupied.

  “Once we scale up and go to market, every one of these desks is going to be busy with marketing and backup.”

  They crossed a wide corridor, and linoleum tile replaced the carpeting.

  “What you told Ed, that there aren't any holes in the case-you're sure?”

  Seeley said, “There's no case that isn't a crapshoot. Things come up. But, as far as I can see, you're in good shape.”

  Leonard put a hand on Seeley's arm, pleased. “We can crack open a bottle of champagne tonight.”

  Leonard's dismay when Seeley told him that he'd decided to stay at a hotel and not at his house in Atherton left Seeley no choice but to accept his brother's dinner invitation.

  The walk to Steinhardt's office took them past laboratories that looked little different from the high-school labs at St. Boniface, where he and Leonard were students thirty years ago. There were more plastic containers than Seeley remembered, and there hadn't been laptops on the scarred black lab counters, but the shelves lined with reagent bottles were the same, as were the spaghetti of tubing that looped down from fat-globed flasks into glass beakers and the neatly labeled drawers, the refrigerator posted with black-and-yellow warnings, and the exhaust hood under which the class clown manufactured his stink bombs. White lab coats hung from hooks along the walls. Somehow science had made all these extraordinary leaps using little more than a high-school junior's lab tools.

  Seeley said, “How closely did you monitor Steinhardt's work?”

  Leonard heard the concern behind the question. “You just told me there weren't any loose ends.” His good humor had evaporated.

  “I want to make sure Warren isn't a problem.”

  Leonard took Seeley's arm and steered him around a jumbo-size doormat at the entrance to one of the labs. The white vinyl mat looked as sticky as flypaper and was clotted with shoe prints. “Real high tech,” Leonard said. “It's to get the crud off your shoes when you go into the lab.”

  He continued on, holding Seeley's elbow. “I review Steinhardt's work as closely as anybody's. When he started getting results, I looked even more closely. But remember, Mike, I'm running seven fully staffed labs here.”

  “Did you review his lab notes?”

  Leonard gave him a hard look. “You're not listening, Mike. If I get three or four hours at night to review the science we do here, I've had a good day. Most of my time I spend explaining to the FDA why AV/ AS is safe and effective. Do you know how many trips I had to make to Washington to get us on track for phase-three trials? It's a full-time job just convincing our insurance companies that they're not going to be defending liability lawsuits the day after we go to market. The World Health Organization's watching us. So are the nonprofits. And there's the AIDS activists. You'll see them when you go to court.”

  “I'd think they'd be supporting you.”

  “This is the globalization crowd. They say we're going to use our patent to gouge the Africans on price. We haven't told them, but in sub-Sahara we're prepared to price AV/AS as low as fifteen dollars a dose.”

  “Why don't you tell them that? The AIDS group.”

  “Because then I would have to explain to the American AIDS groups how, if we can go to market for fifteen dollars in Kenya, we can justify charging two hundred fifty dollars here. They don't understand that fifteen dollars doesn't support this kind of research.”

  Seeley wondered where the money went. Vaxtek certainly wasn't spending it on offices or laboratories.

  They were at the door to Steinhardt's office. Leonard, his voice suddenly thick, said, “You don't approve of how I do my job.”

  “It's none of my business, Len, to approve or disapprove.”

  “I'm looking forward to dinner tonight. Renata, too.” Leonard tried to make it light, the charming host, but the emotion in his voice reminded Seeley that, whatever his accomplishments as a physician and executive, part of his brother was still the kid hiding out behind the living-room couch.

  The open box of imported chocolates on the marble end table, not a single piece removed, told Seele
y everything he needed to know about Alan Steinhardt. The chocolates, the translucent silk drapes, Oriental rugs, antique furniture, and the scale of the room-the office was at least five times the size of Leonard's-were all for show. Steinhardt might at one time have been a dedicated researcher, but the surroundings made Seeley wonder how much of his energy he now invested at the laboratory bench. A recording of a string quartet played from speakers hidden in the ceiling.

  A side door opened and Steinhardt entered the room, moving quickly but gracefully. He tilted his head and arched an eyebrow in the direction of the room he had just left. The scientist's fingertips no more than grazed Seeley's hand. “You must forgive me. There are always crises in the lab and-I am sure someone told you-I must be on a plane to Paris in three hours. You will excuse me if I keep our meeting brief.”

  “That's up to you,” Seeley said. “We can go over your testimony now or the day before trial.” “I don't think a rehearsal will be necessary.”

  Steinhardt's narrow face, the neatly trimmed goatee and mustache, the slicked-back gray hair were moderately forbidding. Seeley imagined that it was a long time since anyone had called him Al. Still, he thought that with some sandpapering he could turn the scientist into a passable witness-not lovable but authoritative. A juror who was looking for a father's approval might be persuaded to believe in him.

  “As I said, it's your decision. But I'd recommend that you leave yourself some time. Right now, you're my lead witness and St. Gall is going to go after you on cross-examination like you're the only thing that stands between them and a profitable fourth quarter. If you're not prepared, you're going to wind up looking look like a real horse's ass.” He stopped to make sure the scientist was paying attention. “The press loves it anytime a prominent witness gets torn apart on cross-examination.”

  “The press?”

  “The local papers will be there. I'm sure the Times and Wall Street Journal will send stringers. This is a big case. Time should have someone. Maybe Newsweek.”

  Steinhardt's expression darkened. He shot the cuffs of his white lab coat. The coat looked like it had been custom-tailored to his small, trim frame. “What would I need to do?”

  “You can start by telling me what AV/AS is about.”

  “If you need me to explain that to you, I'd say you're not the man to conduct my case.”

  “This isn't for me,” Seeley said. “It's for the jury. You're the one who's going to have to explain the science to the jury.”

  Steinhardt considered that, and for a moment stood even more erect. He gestured to Seeley to take one of the antique upholstered chairs and took one himself. Then he checked his watch and appeared to change his mind. “I could give you the five-minute version, but I expect you will have questions. This will have to wait until I return from Paris. I promise you, it will be a brief trip.”

  “If I were you, I'd cancel the trip.”

  “You obviously fail to understand. I have an important paper to deliver. Not to go would be out of the question.”

  Seeley had worked with scientists before, and it was a puzzle to him why anyone would spend good money to put these people on airplanes and lodge them at luxury hotels just so they can read papers to each other that they could more conveniently and at less expense read at home. Steinhardt could at least answer one question for him. “What does AV/AS stand for?”

  “AV is standard nomenclature. AIDSVAX. One of the first vaccines tested-this was years ago-was AIDSVAX B/B.” Steinhardt's smug expression told Seeley he didn't have to ask what AS stood for.

  “And this was entirely your work? No one else contributed to it?”

  The scientist didn't flinch. “Of course it was. I have people working for me, assistants, but their work is entirely routine, on the order of cleaning test tubes. None of them does any science.”

  “And Lily Warren?”

  Steinhardt frowned, and Seeley expected to hear yet again that Warren was a crackpot.

  “She was my graduate student at the university.”

  “Which university is that?”

  “UCSF. The University of California at San Francisco. I had my laboratory there before I brought it here. Surely, you've read my resume.”

  “And Warren worked with you at UCSF.”

  “ For me. We only did the most basic science there. Nothing patentable. In any event, she was little more than a glorified lab technician.”

  Seeley had seen Warren's resume in the black witness binder, as he had Steinhardt's. She did her undergraduate work at Johns Hopkins, took her doctorate at Rockefeller University, and then got a postdoctoral fellowship in Steinhardt's lab at UCSF. She wasn't just his graduate student, as he said; she was a postdoc. And she was not someone who cleaned test tubes.

  “You're aware, she's made a claim that she discovered AV/AS.”

  “I'm also aware that no one, not even St. Gall, has displayed the poor judgment to take her claim seriously.”

  Was it possible, Seeley wondered, for this man to utter one word without condescension? In theory, Pearsall's decision to make Steinhardt Vaxtek's leadoff witness was correct. Corporations may pay for the research and development that it takes to produce a new drug, but jurors want to see the invention's human face, the scientist whose genius and tireless effort produced a miracle out of nothing more than an idea and a few cell cultures. Seeley revised his estimate of Steinhardt's prospects as a witness. In the hands of a capable trial lawyer, which he knew Thorpe was, arrogance like this was going to destroy Steinhardt in the courtroom. If Seeley kept him as the leadoff witness, the damage to Vaxtek's case could be irreparable.

  Seeley said, “If new facts come out, St. Gall can still change its mind and call Warren to testify. I need to know if we're going to find her fingerprints anywhere near AV/AS.”

  “I can assure you, Lily Warren has no claim to my discovery.”

  Steinhardt saw that this didn't satisfy Seeley, and with a curt gesture motioned him closer. “You are my lawyer, is that right? Anything I tell you is confidential?”

  “I'm Vaxtek's lawyer, not yours.”

  “A technicality.” Steinhardt drew closer. The eyebrow arched; the shoulders shrugged. “You are a man of the world, Mr. Seeley, so you will understand. This young woman was infatuated with me. Such things happen. She is attractive, and she can even be charming, but of course it would have been unprofessional of me to take an interest. This ridiculous claim of hers is revenge, nothing more.”

  “Did you tell Leonard about this? Ed Barnum?”

  “What is there to tell? As I said, I don't want to injure her professional opportunities.”

  Even if Seeley believed Steinhardt, Warren must have had a substantial enough claim to the invention that St. Gall had not initially thought her a crackpot. Why, then, had they so precipitously dropped her and stipulated that Steinhardt was the sole inventor?

  “Is there anyone else who might make a claim to AV/AS?” Seeley knew the question would infuriate Steinhardt.

  Steinhardt shook his head.

  “You are the sole inventor of AV/AS?”

  “Of course I am!” He came out of the chair, directly at Seeley, his face twisted in anger and dark from the rush of blood. “What have I been telling you?”

  “You're going to have to learn to control your temper. I'm being gentle with you. Emil Thorpe, who will be cross-examining you, will not. The jury will turn against you if you can't do better than this. But, if it's a consolation, the press will love it.”

  “Have you looked at my laboratory notebooks?”

  Seeley remembered asking Palmieri to review Steinhardt's notebooks.

  Behind Steinhardt, a slender woman came into the office. Her suit and the way she wore the scarf knotted at her neck told Seeley that she was either European or had mastered the look. She had a small stack of euros in her hand and a slender envelope.

  Steinhardt took the bills and envelope and placed them on the desk. The exchange was wordless, and she left.
>
  “You need have no concerns, Mr. Seeley. I will return from Paris on Sunday, in ample time to testify. It is imperative that I be the one to explain my discovery to the court.” He started to unbutton the starched white jacket. “You do have me on your list as the lead witness?”

  Pearsall had already told him he was. The man's insecurity was as staggering as his ego.

  “He left you instructions to put me first, didn't he-the poor fellow who jumped in front of the train?”

  “Rest assured,” Seeley said, “you will be the most important witness in the trial.”

  THREE

  The last week before the start of a major trial rises and falls on ocean swells of crisis-exhibits to be readied, last-minute motions to be filed, witnesses to be prepared-but the crises had become predictable over the years, their resolution as inevitable as their occurrence, and Seeley had left to Palmieri all but the most daunting of them: where to place Alan Steinhardt in the lineup of witnesses and how to rebut any last-minute claims by Lily Warren.

  Still, Seeley knew that he could make better use of his time than chasing down Highway 280 after a gold BMW with Leonard, one hand on the steering wheel, the other resting on the open window, deftly changing lanes three and four cars ahead of him. Leonard had promised that his house in Atherton was no more than twenty minutes from Vaxtek's offices and gave Seeley rapid-fire directions in the event they lost each other in traffic. “I want you to get to know Renata and me,” Leonard said. “You've changed. I want to get to know you.”

  Seeley was curious about Renata. He had met her at the wedding nine years ago, a period when he was drunk or hungover most of the time, and he remembered only fragments of the event. He assumed that the attractive woman in the snapshots in Leonard's office was Renata, but could not connect these images to the young bride who had pressed her body into his as they moved across the ballroom floor.

  One other memory stood out. As Seeley was leaving to find Leonard in the hotel kitchen, Renata took his hand and, rising to her toes, whispered a message-a goodbye? a wish? a secret? — in his ear. With the music and the noise, Seeley had not made out a single word. From Renata's expression when she drew away, he at once saw the urgency and consequence the words had for her, but he was too drunk or embarrassed, for her or for himself, to ask what she had said. From time to time in the years since, when he passed a wedding party or saw couples dancing, Seeley thought about what Renata's words might have been. He wondered, too, whether he owed her an apology for not fulfilling whatever promise his silence had implied.