A Patent Lie

by Paul Goldstein

  “Your brother's a better listener than you are.” Warshaw bent to pet the dogs.

  “Leonard's a fine salesman,” Seeley said.

  “Let me show you my sculptures. Leonard tells me you represent artists.” Warshaw didn't wait for an answer but, as they walked in the direction of the house, lectured Seeley on each of the half-dozen pieces they passed. By the time they reached the terrace, guests were streaming out of the tent.

  Renata was waiting for Seeley on the terrace, a full wineglass in her hand. “Asperger's syndrome,” she said when Warshaw was gone. “High-functioning autism. People like Joel are usually brilliant at one particular thing, but they don't have what the psychiatrists call social pragmatics. It's the only disease known to medicine whose symptoms are being rich and powerful.”

  “And amoral.”

  Renata thought for a moment. “I suppose that, too.”

  “He seems to get on with his dogs.”

  Renata laughed. “I'm ready to go. How about you?”

  “Where's Leonard?”

  “He'll be the last one to leave. I have to be in the OR at seven-thirty.”

  Seeley remembered that she'd also been in surgery early today. “How many days a week do you do that?”

  “Four, five. Leonard says I went into orthopedics as an excuse for not having kids.”

  “Did you?”

  “I never wanted children and, whatever he says, Leonard doesn't either. He wants only one child in the house, and it has to be him.”

  “Why'd you pick surgery?”

  “When I was a nurse, I knew that if I got through med school, it's what I'd do. All the parties I went to, the surgeons were always the ones having a good time.”

  “Are you having a good time?” Out on the street, the fragrance of grasses and lavender mixed with the familiar eucalyptus, like a magician's potion.

  Renata said, “Even the best jobs get tedious. Doesn't yours?”

  Seeley laughed. “I relieve the boredom by taking on cases that I shouldn't.”

  “For me it's being an on-field doc for the Stanford football team. I only work home games, but it's something to look forward to. Leonard said you played in college.”

  “It was a small Jesuit college in Buffalo. Strictly division three.”

  “Why don't you come to the Washington game next week? I'll get you a field pass.”

  “I'll be in the middle of trial.”

  He had said the same to Lily, but then agreed to dinner with her. At odd moments, driving back to the office from their lunch in Princeton-by-the-Sea and again driving down to Atherton this evening, fragments of his conversation with Lily drifted pleasantly through his thoughts. What had changed his mind about dinner-the need to discover what Lily was hiding, or the simple desire to see her again?

  “It's just three hours on a Saturday afternoon. You'll need a break.”

  Seeley said he'd think about it.

  They turned into Renata's street, where the sidewalks disappeared and the canopy of treetops became so dense that it obscured the night sky.

  “Do you remember, at your wedding, when I was leaving, you whispered something to me?”

  Renata gave him a blank look, then shook her head. “What did I say?”

  “I don't know,” Seeley said. “That's why I asked. But I had the feeling it was important to you.”

  Renata smiled and slid her arm through his. “I was probably just flirting with you.”

  “Did you do that a lot?”

  They were at the front door. When Seeley turned to her, she was looking directly at him. “I still do.”

  Renata opened the door. “Do you want to come in?”

  “You have surgery tomorrow,” he said. “And I have an early meeting with my trial team.” Until that moment, he had forgotten the meeting that Tina had scheduled for him.

  She frowned. “You're afraid Leonard will come back.”

  “Maybe I'm afraid he won't.” Seeley meant it to be light, but she didn't smile.

  Renata said, “Let me know what you decide about the Washington game.”

  Before Seeley could answer, her lips brushed his cheek, leaving a scent of wine, and then she was gone, the door closed behind her.

  EIGHT

  At 7:30 in the morning when Seeley came into the office, Steinhardt's lab notebooks were in a neat pile centered on his desk. The two on top, marked “University of California,” were clothbound, and the four volumes beneath them were unmarked and bound in black leather. Next to the notebooks was a message from Tina that Nicolas Cordier, Seeley's expert witness from South Africa, had arrived in New York and wanted to speak to him.

  Seeley took the UC notebook from the top of the pile. The pages, lined horizontally and vertically like graph paper, were consecutively numbered and sewn into the binding to prevent an unscrupulous researcher from removing any that later turned out to be embarrassing. Paragraph after handwritten paragraph filled the pages, interrupted only by charts with numbers, symbols, and crisscrossing curves. At the end of each entry was the dated signature of the writer and, beneath that, of a witness. Most of the entries were in Steinhardt's small, meticulous hand, but some, in a loose, elegant script, were signed by Lily. The leather-bound books farther down in the pile were from Steinhardt's time at Vaxtek and, as Palmieri had said, were perfect, without an erasure or a cross out. All of the entries were signed by Steinhardt.

  Remembering his promise to Judy to look into the police work on her husband's death, Seeley dialed the number for the San Mateo police headquarters, with little hope of learning anything that hadn't already been in the news. The receptionist told him that Lieutenant Herbert Phan was handling the investigation, but wasn't in yet. Why, she wanted to know, was he calling? Seeley hesitated. Palmieri's pro hac motion would cover Seeley's appearance in federal district court for this one case; however, not being a member of the California bar, he had no right to represent any other client. He bit his lip and told the receptionist that the Pearsall family had retained him to inquire into Robert Pearsall's death. She didn't sound impressed. Lieutenant Phan was busy, she said. Everyone in the department was busy, but she'd take his number and the lieutenant would call if he got the chance.

  “What do you think about the notebooks?” Palmieri came into the office and took the chair facing the desk.

  Seeley said, “When St. Gall served their discovery request, did they ask for Steinhardt's notes along with his notebooks?”

  “Steinhardt told us there weren't any notes. Just the notebooks.”

  Palmieri was looking him in the eye today, and that relieved Seeley.

  Palmieri said, “Do you think they went through Vaxtek's trash cans?”

  “If Steinhardt had notes, I'm sure he shredded them-”

  “They could still find someone who worked with him to testify that he kept a second set of books.”

  “Lily Warren,” Seeley said. How far would she go to keep her visa?

  “She only worked with him at UC.” Then Palmieri remembered. “You mean the night she met him at Vaxtek.”

  There was a knock at the open door. It was Boyd McKee.

  Palmieri turned and, seeing the patent lawyer, rose. To Seeley, he said, “Remember, we have a ten o'clock meeting with the judge.”

  Seeley put up a hand. “Let's see what Boyd has.”

  McKee ran a hand over his shaved head. “I have the prior art analysis you wanted.” He remained in the doorway.

  “Come on in,” Seeley said. “Chris is as interested in this as I am.”

  Seeley had an instant's impression that, when McKee passed him, Palmieri tensed.

  Palmieri said, “Is this the complete version, or is it still Prior Art Lite? I can't believe you let the client strong-arm you into hiding references-”

  Seeley cut Palmieri short with a gesture. “Let's see what you have, Boyd.”

  McKee opened the manila folder and placed it on the desk. As Seeley read through the few typed pages, McKee said, �
��There really aren't that many discoveries that are close to AV/AS. Your brother was right about this being a pioneer invention.”

  Alexander Graham Bell's telephone patent was a pioneer patent. So was the patent on barbed wire. Courts regularly strike down broad patents like Vaxtek's, but they will sometimes make an exception for landmark inventions, because they open up a whole new field, and so deserve a wider range of protection than run-of-the-mill discoveries. If McKee was right, this could save Steinhardt's patent.

  Palmieri said, “Did you check for foreign patents?”

  “This is what I do, Chris. I checked all the prior art.”

  “Foreign publications? Unpublished papers?”

  McKee's jaw clenched, and he massaged an earlobe. When he took his hand away, Seeley noticed three pinprick indentations, as if for earrings, and for a moment wondered about the young lawyer's nightlife.

  The telephone intercom buzzed. It was Tina telling him that the trial team had been waiting in the workroom since 8:30. “Tell them I'll be right there.”

  Seeley rose. “This is good work, Boyd. Thanks.” He tapped the folder. “This complicates the decision whether to keep Steinhardt as our lead witness. If he really was a pioneer-”

  “You can't drop him,” Palmieri said. “Do you know one patent case where the plaintiff didn't lead off with the inventor?”

  Before Seeley could answer, McKee said, “Who would you use instead?”

  Seeley said, “Nicolas Cordier. The South African. He's a physician, he can tell the frontline story of AIDS, and he can communicate better than anyone how important this discovery is.”

  “That's my point,” Palmieri said. “It was Steinhardt who made the discovery.”

  Seeley added McKee's folder to the pile of laboratory notebooks, and nodded to the two lawyers to follow him out the door. “Steinhardt's a pompous ass. He's going to thump his patent like it's the Bible and he's God. That he created this field. The jury's going to hate him.”

  In her cubicle, Tina was on the telephone. When Seeley gestured to ask whether the call was for him, she shook her head and placed a hand over the receiver. “It's Mrs. Pearsall-about some partnership papers.”

  From behind Seeley, as they continued down the corridor, Palmieri said, “I think you're making a mistake.”

  Seeley stopped, and said to McKee, “What do you think, Boyd?”

  “I think if you're going to use the South African, you should get him here real fast.”

  “He's in New York.” Seeley remembered that he hadn't returned Cordier's call. As much to himself as to the others, he said, “I can work with him over the weekend.”

  After McKee left them, Seeley said, “Judy Pearsall told me you had dinner with Bob the night he died.”

  “And?”

  “Did he say anything about the case that seemed unusual?”

  “A long time ago, Bob taught me that when you're going to trial there's only one thing you should think about-”

  “Sure,” Seeley said. “The trial. And you think my looking into this is a distraction.”

  “That and chasing after Lily Warren.”

  “Steinhardt's notebooks are going to be a big part of the trial. She may know something about them that we don't.”

  “Okay,” Palmieri said, “but shadowing a police investigation-”

  “What if Bob's death is connected to the trial?”

  “Connected how?”

  They had arrived at the workroom.

  “That's what I'm trying to find out,” Seeley said.

  Tina had sent an e-mail about the meeting to everyone involved in the case, and paralegals, secretaries, and document clerks filled the bare-walled workroom along with the lawyers, standing and talking in groups or perched on the low gray file cabinets, having their morning coffee. The moment Seeley came through the door, the room went quiet.

  Seeley thought to apologize for keeping them waiting, decided that wasn't what they needed to hear, and instead explained the responsibility he felt, taking over a case that, working with every person in the room, Bob Pearsall had created. He then described the day-by-day path-he stayed clear of calling it a “path to victory”-that, building on Pearsall's plans but with changes of his own, he had laid out for the trial, and told them that they could expect continuing demands for exhibits, document review, and last-minute legal research over the coming days. He ended with the short speech he'd given dozens of times before. No one's job was too small to be critical to the team's success. If everyone did all that they were asked to do, and maybe ten percent more, victory was possible. This was supposed to be Pearsall's victory, he said. Now it's going to be yours. He saw no evidence in the coffee-sipping crowd that he had stirred or even connected with them. Palmieri motioned to him, tapping his watch, and Seeley said that they had to leave for a meeting with the judge. There was a sprinkle of applause, and Seeley was back in the corridor.

  Judge Farnsworth was going to ask for his witness list at the meeting in her chambers, but Seeley still had not decided whether to keep Steinhardt as his lead witness or to drop him to a place in the lineup where he would do less harm. He forced himself to concentrate on the decision as he and Palmieri walked to the elevators. But, behind it, another question tugged at him: How many more potholes was he going to find in Robert Pearsall's path to victory?

  NINE

  The moment the taxi turned onto Market Street and Seeley saw the traffic backed up in both directions, he knew that they were going to be late for the meeting in Judge Farnsworth's chambers. The driver caught Seeley's anxious look in the rearview mirror and turned up the foreign-sounding music on the radio; zithers, it sounded like, and low chanting voices. Palmieri saw Seeley's expression, too. “I don't know about New York, but in San Francisco they don't hold you in contempt for being a few minutes late for a pretrial conference.”

  They arrived fifteen minutes late at the Phillip Burton Courthouse, a glass-and-granite high-rise that filled an entire block at the edge of the Civic Center, and spent five minutes getting through the security gate. On the nineteenth floor they had to wait for a buzzer to let them into a narrow corridor. Palmieri led Seeley past a warren of offices, courtrooms, jury rooms, more dim corridors, and, finally, to Judge Farnsworth's chambers.

  The anteroom had the worshipful hush of a cloister. Barnum was already there. Ignoring Palmieri, he introduced Seeley to Rachel Fischler, who Seeley guessed was Thorpe's second chair, and to a young lawyer from St. Gall's headquarters in Switzerland. Barnum butchered the man's name, which Seeley deciphered as Philippe Dusollier.

  Fischler was pear-shaped and had a frizzy thatch of black hair that looked as if no amount of effort would bring it under control. She apologized for Thorpe, who was finishing a trial in Akron, but would be back in time for jury selection on Friday. Her voice was high-pitched, almost a whine. The Swiss was slender and precise in a narrow-cut gray suit and steel-rimmed glasses; he had a porridgy complexion and, oddly, the otherwise thin face showed the beginnings of a double chin. He didn't speak, but the complacent gray eyes told Seeley that Dusollier was judging him, and would be throughout the trial for daily reports back to the home office in St. Gall.

  The judge's secretary, who had been watching from a desk in the corner, asked if anyone else was coming. When Seeley told her no, she knocked on the door next to her desk, then opened it without waiting for a response.

  Judge Farnsworth's office was softly lit and, with several easy chairs arranged in a semicircle around a sofa, looked more like a well-furnished living room than the heart of a judge's chambers. Fresh-cut flowers were on the end tables and Seeley recognized the framed prints on the walls as coming from small editions by contemporary masters. Floor-to-ceiling bookshelves filled with tan, black, and red volumes of the Federal Supplement and Federal Reporter-along with the American flag in the corner, the only government issue in the room-occupied one wall. Another wall, entirely of glass, framed the gray buildings and domed roofs of the Civic Cente
r and, in the distance, glimmering behind a confusion of stalky construction cranes, the bay. It occurred to Seeley that, when they came to San Francisco, even government architects were seduced by the view.

  Ellen Farnsworth rose from a small desk that, like her secretary's, was in an inconspicuous corner, and introduced herself to Seeley, greeting the others by name, pronouncing the Swiss lawyer's name fluently. She was attractive in a dark, heavy-featured way and her suit was elegantly cut; the skirt-shorter than Seeley would have expected on a federal judge-showed off long, well-shaped legs. Federal judges are usually smarter and more able than most of the lawyers who come before them and, with their lifetime tenure, possess a detachment not unlike the composure of a beautiful woman who knows the effect that her good looks have on men. Judge Farnsworth had both. Thorpe was shrewd to select Rachel Fischler for his second chair. Unlike any man he could have chosen, Fischler would implicitly stroke the judge's vanity.

  The judge took the upholstered chair closest to the window and, after everyone found a place, said, “I suppose it's futile, but I'll ask anyway. Has there been any progress toward a settlement?”

  “No, Your Honor,” Fischler said. “There have been several discussions since our last meeting with you. As you ordered, the two CEOs talked. They met in New York City. But there hasn't been any progress.”

  Most patent cases, even major cases like Vaxtek v. St. Gall, would have settled by now. Seeley had seen violently adversarial parties reach agreement in the middle of trial. Twice, he had settled cases while the jury was out deliberating. Judges differ in how aggressively they encourage settlement and, from what Seeley saw in the files, Farnsworth had pressed the parties, but not hard. If she had met Warshaw, the entrepreneur who planted stakes to preserve the boundaries of his property, she would not have done even that. So long as Warshaw controlled Vaxtek, Seeley saw no possibility that the case would settle.