A Patent Lie

by Paul Goldstein

  “What's worse,” the protester asked him, “that your client loses its investment or that millions of people lose their lives?”

  Seeley said, “You could also feed starving people by letting them steal wheat from the field, but if you did that, how many farmers are going to invest in seed and fertilizer for next year's crop? It's the same with research. A company's not going to invest in making the next breakthrough discovery if it knows a competitor's going to be able to rip it off just like the last one.”

  “Jonas Salk didn't try to get a patent on the polio vaccine. He gave it away free.”

  The protester reminded Seeley of the idealistic young artists he represented pro bono when he practiced in New York. “That was fifty years ago,” he said, “and Jonas Salk was a saint. How many saints do you know with the cash to bring a drug like this to the market?”

  The man, his smile uncertain now, said, “The government should pay for the research and give the drugs away free to anyone who needs them.”

  “How comfortable are you letting politicians decide what kinds of drugs get developed? If it were up to the politicians, do you think we'd have the AIDS therapies we have today?”

  “And you think we should trust businessmen with that decision?”

  Seeley said, “There's no reason to trust businessmen any more than politicians. But you can trust the profit motive. If these therapies are what people want and will pay for, drug companies will produce them.”

  “That's my point,” the curly-haired man said. “Your client will produce only what people can pay for.”

  “But, the alternative is no AIDS treatments at all.”

  Seeley leaned into the protester, turning him away from the camera and speaking quietly so that the microphone wouldn't pick up his words. “If you and your people gave this some thought, you'd leave off attacking our patent and, when we win our case, you'll put pressure on my client to sell AV/AS at prices that people in places like Africa an afford. That way, you get our drug and you get to save lives, too.”

  At the bottom of the plaza, Gail Odum, pencil in hand and notebook open, was talking to one of the protesters, a broad-shouldered woman with jet-black hair that flowed well below her shoulders. At something one of them said, the two suddenly broke into laughter, Odum touching the woman's arm. Did Odum and Lily laugh like that when they talked? Women's secrets. A woman's touch-Seeley could still feel Renata's hand flat against his chest. It came as a surprise to him how lonely he was for that.

  ELEVEN

  On Monday at 7:40 a.m., while Judge Farnsworth proceeded through her motion calendar, Seeley reviewed the notes for his opening statement. The benches on both sides of the gallery were filled. Palmieri had pointed out to Seeley the lawyers sent by their investment bank clients to evaluate every nuance of the trial for its possible impact on stock prices. Seven years ago, when a federal court ruled that the patent on Prozac was invalid, Eli Lilly shares plummeted more than thirty percent. These lawyers were here to anticipate any such effect on the shares of Vaxtek or St. Gall.

  The press was in the back, Gail Odum from the Chronicle dressed today in a severe gray suit. The offhand attire of the six or seven figures talking by the gallery rail identified them as part of the protest group, but Seeley didn't see the tall curly-haired protester he had debated with outside for the evening news. Leonard was in the front row, sunny in a light-colored suit. Warshaw wasn't there, but Seeley hadn't expected him to come.

  Seeley was thinking about Dr. Robert Gore and his invention of Gore-Tex when Barnum slid an electric red binder onto counsel's table.

  “Very bright,” Seeley said.

  “Look inside.” Barnum took his chair at the side of the table.

  Palmieri watched as Seeley opened the binder. At the top of the first page, in large type, was the name of juror number seven, Bernard Adelson, the retired schoolteacher, and beneath it and on the three pages that followed, every fact a trial lawyer might want to know about the juror, his family, his medical history, his and his family's every habit and whim. The remaining pages, arranged alphabetically, did the same for the other jurors. Seeley felt an impulse to turn to the back of the binder, where the information on Gary Sansone, the kid, would be, but closed it instead.

  “We can't use this.”

  “This is valuable material,” Barnum said. “Joel hired a firm to collect it.”

  “Jurors don't get paid forty dollars a day to have Warshaw's investigators poke into their private lives.” Seeley's words were louder than he realized, because the judge glanced up from her papers and shot him a cross look.

  “Did you investigate me?”

  “Of course, we did,” Barnum said.

  And still, Seeley thought, you hired me. He handed the binder to Barnum. “Shred everything in here.”

  Seeley had been thinking about Robert Gore because the invention of Gore-Tex was one of those flashes of creative genius that made a patent unassailable in court. Gore had been attempting to transform hard Teflon rods into a more pliable material by following the conventional wisdom and stretching the rods slowly. But no matter how much he slowed the process, the brittle rods continued to break. Then Gore somehow got the inspiration to do exactly the opposite, and discovered that by stretching the rods as rapidly as possible he could extend them to ten times their length without breaking, turning them into a soft, flexible material that, when bonded to cloth, produced a fabric perfect for rainwear. If only Steinhardt could convey to the jury that same brilliant eccentricity of discovery, AV/AS, too, might be invulnerable to attack.

  The judge's gavel rapped. She had completed the morning's motion calendar. “We'll take a five-minute recess, and then proceed to opening statements in Vaxtek v. St. Gall.” At his small desk next to the jury box, the bailiff, a young Asian in blazer and gray slacks, rose at her signal to bring in the jurors.

  Seeley waited for the coughs, murmurs, and shuffling of feet to subside, then walked to the wooden lectern. For the first time that morning, he looked directly at the jurors, one after the other, pausing no more than a moment to engage each pair of eyes. He moved from left to right along the back row, then right to left along the front. He glanced up at the bench. “May it please the court.”

  A juror in the front row, the nurse, raised her hand. Farnsworth looked at her seating chart. “Yes, Ms. Ortiz?”

  Ms. Ortiz gestured at the bailiff. “The pen he gave me doesn't write.”

  That brought laughter from the courtroom and from the judge, who came down the stairs from the bench and handed the woman her own silver pen. She wagged a finger at her. “Now remember, Ms. Ortiz, I want that back when the trial's over.” Her smile took in all the jurors. When she was back in her chair she nodded at Seeley.

  “Good morning,” Seeley said. “My name is Michael Seeley. I represent Vaxtek, Incorporated, the patent owner and plaintiff in this lawsuit. Vaxtek is a small biotech company with 220 employees whose headquarters and research labs and production facility”-here Seeley smiled-“whose entire business is located in South San Francisco, just eleven miles from this courtroom. Vaxtek is suing Laboratories St. Gall, the third largest pharmaceutical company in the world, with 110,000 employees and annual sales of $60 billion, for stealing Vaxtek's pioneering invention, AV/AS, the most effective treatment any scientist has yet developed, or any company has yet produced, to prevent the onset of AIDS. Although the defendant is a Swiss company, with headquarters in St. Gall, Switzerland, and facilities around the globe, Vaxtek is seeking justice here, in this courtroom in San Francisco.”

  This was Seeley's theory of the case, Pearsall's path to victory: the injustice of letting an overgrown schoolyard bully from outside the neighborhood steal lunch from the frail, brainy kid with glasses; the injustice that every juror would correct if he could. Research into jury behavior showed that, by the end of opening statements, nine of ten jurors have irrevocably decided how they will vote in a case, but Seeley believed that they decided earlier than that.
He wanted the jurors to understand at once that he was here to guide them not so much to truth, as to justice. The schoolyard bully had to be punished.

  “As Judge Farnsworth explained when she picked you for this jury, this is a patent infringement case. To protect its invention of AV/AS, Vaxtek is relying on a patent granted to it by the United States Patent Office, much as you would rely on the title to your car or the deed to your home to stop someone from stealing your property. Like you, Vaxtek worked hard to acquire this property.”

  The kid, Sansone, had on a sport coat today, and a poorly knotted woolen tie. If Seeley read him correctly, Sansone had decided that he was going to be, if not the jury's foreman, then at least its guiding force.

  “Now, the U. S. Patent Office doesn't just hand out patents to anyone who shows up and asks for one. It has almost five thousand examiners, every one of them an expert in his or her field, and these examiners analyze each patent application they receive to determine whether the applicant's invention is sufficiently new to justify the grant of a patent. One of these examiners, Dr. Harriet Siler, studied Vaxtek's discovery of AV/AS, and only after carefully comparing AV/AS to all of the earlier discoveries in the field, did Dr. Siler, whose doctorate is in microbiology, conclude that AV/AS was indeed novel and entitled to the patent we are talking about in this trial. As Judge Farnsworth will instruct you at the end of the trial, unless St. Gall can prove that Dr. Siler made an error, you must vote to uphold the patent.”

  There was no need for Seeley to explain-Thorpe would certainly do so-that examiners, like Siler, who issue these patents lack the resources available to private lawyers like Boyd McKee who are well paid by their clients to extract from these government employees the broadest possible patents they can.

  “Legally, then, Vaxtek has no obligation to prove that its invention meets this standard of novelty. The U. S. Patent Office has already decided that. But because AV/AS is so crucial to Vaxtek's survival as a company, we are going to put on several witnesses who will demonstrate to you why the Patent Office made no mistake, and why this invention is entitled to the fullest protection that American patent law can provide against theft.”

  Seeley gave the jurors a preview of the expert witnesses who would testify for Vaxtek, briefly describing the testimony of each. His nerves quickened when he reached Steinhardt. The scientist had returned from Paris on Saturday, a day early, and exploded when Barnum told him that he would not be testifying first. Steinhardt telephoned Seeley, demanding that he meet him at his home at once, and slammed down the receiver when Seeley said he was too busy with trial preparation to do so. It wasn't until Sunday afternoon, while Seeley was preparing his first witness, Nicolas Cordier, that Steinhardt called again.

  “I have decided that if I am not to testify first, I will not testify at all. Without me, there would be no AV/AS.”

  This was kid stuff, Seeley thought, and Steinhardt a whining brat. Just to see what Steinhardt's reaction would be, he said, “I can subpoena you as a hostile witness.”

  “What purpose could that possibly serve?”

  Seeley thought of the question Pearsall had written under his sketch of the scientist. “We can find out what you're hiding.”

  “What makes you think I'm hiding something?” There was less rancor in the tone than before.

  The first bluff had worked, so Seeley tried a second. “I talked with Lily Warren.”

  After a long silence, Steinhardt said, “I have no secrets, and I will demonstrate that when I testify.” This time he did not slam the receiver when he hung up.

  Seeley quickly scanned the jury, then glanced at his watch. He had consumed less than the half hour he'd allotted to summarizing Vaxtek's case. He gave himself twenty minutes, no more, to anticipate and undermine St. Gall's case, and five minutes to summarize and close.

  “Mr. Thorpe, who is St. Gall's lawyer”-he nodded in the direction of counsel's table where Thorpe sat surrounded by his team, and was pleased to see the jury follow the direction of his gaze-“is going to put on witnesses who will try to tell you that Vaxtek's invention does not rise to the level of novelty that the U. S. Congress, in passing the Patent Act, requires before a patent can issue to an invention. Mr. Thorpe's witnesses are also going to tell you that St. Gall's product is different from AV/AS and, for that reason, doesn't infringe Vaxtek's patent. But we will put on witnesses who will show you that despite superficial differences, St. Gall's product is in fact identical in every relevant respect to Vaxtek's.”

  Seeley checked the courtroom. Judge Farnsworth, in a starched white collar with a bright, knotted scarf, but otherwise neutered by the black robes, was following closely. Barnum's hands were clasped across his belly. He looked pleased. Palmieri, head down, was working at the keyboard of his laptop, activity that could distract a jury. Seeley would need to talk to him about that.

  “I noticed,” Seeley grinned, “that when I mentioned microbiology some moments ago, a couple of you flinched. You may be asking yourself”-here Seeley lightened his tone and inclined toward the jury box, as if to bring the jurors into his confidence-“if Vaxtek's scientific advance is so significant, how am I going to understand it? Well, I know that if Father Comisky, who tried to teach me high-school biology at St. Boniface Academy thirty years ago, knew I was talking to you about these scientific concepts, he'd turn over in his grave. But I promise you, you're going to hear more from our witnesses about common sense than abstract science, and the science they explain to you will be as clear and colorful as Father Comisky himself would have made it.”

  Sansone, whose seat in the jury box was toward the center of the back row, had been watching Seeley intently for several minutes. Alone among the jurors, he didn't smile at the reference to Father Comisky.

  It was time to wrap up. “As you listen to the testimony of St. Gall's expert witnesses, you may from time to time feel that you are losing sight of the forest for the trees. St. Gall's witnesses are going to testify over and over again-because, really, this is all they have-that Vaxtek's invention is too obvious to deserve a patent. They will testify that AV/AS was so obvious that any reasonably competent scientist could have invented it.” Here was Seeley's curve ball, the one that always worked. “Now”-he resisted the impulse to raise a finger for emphasis-“when Mr. Thorpe's witnesses, these experts, make this claim, I want you to ask yourself a single question. If AV/AS was so obvious that any competent scientist could have discovered it, why didn't St. Gall, with its 110,000 employees and dozens of laboratories around the world, do it first?”

  Seeley took in all their eyes with a glance-for the first time, even the kid seemed impressed-then left the lectern.

  At counsel's table, Barnum was beaming. Palmieri was smiling, too, but not as broadly. Behind the gallery rail, Leonard's eyes were glazed with admiration, a look that, even as a boy, Seeley thought would suffocate him.

  A gray stooped profile, Thorpe moved slowly across the well of the courtroom to the lectern. When he spoke, it was so softly that the jurors in the second row-all but the kid-had to lean forward to hear him. Twice the court reporter asked him to repeat himself. Thorpe could have been sleepwalking, enveloped in a languor so profound that it threatened to silence him completely.

  Seeley strained to hear as Thorpe unfolded the theory of St. Gall's defense. “Do you think that a company of St. Gall's size and reputation would undertake to produce an important pharmaceutical without first satisfying itself that the product infringed no valid patent?” Turning Seeley's theme of David against Goliath on its head, Thorpe was making St. Gall's size a mark of virtue. Big business should be trusted.

  “Companies like St. Gall flee from patent infringement the way you would flee from a charging bull. St. Gall has in its files opinion letters from three leading law firms, each stating that AV/AS was an obvious, even trivial advance and, even if a jury were mistakenly to find the patent to be valid, that St. Gall's product does not infringe this patent. My client obtained analyses from the
most expert university scientists around the world confirming that its product does not infringe. Do you imagine that a company of St. Gall's size and reputation would have done any less?”

  As Seeley anticipated, Thorpe then teased out from his theory that big is good a second conclusion to reinforce the first. Thorpe looked directly at the jurors, but his voice remained subdued.

  “If your life, or the life of someone you truly loved, depended on it, whose judgment would you follow: that of a lone, underpaid and overworked bureaucrat in the U. S. Patent Office, or the judgment concurred in by the world's leading researchers in the relevant field-the scientific experts that physicians themselves consult when they need answers to the hardest life-and-death questions-a judgment reached in each case independently and dispassionately.”

  Seeley smiled to himself. As dispassionate as you can be when you are being paid handsomely for that judgment. On his legal pad, Seeley wrote a note to hit this fact hard when his time came to cross-examine St. Gall's expert witnesses.

  Thorpe jammed his hands into the pockets of his suit jacket, silently studying the jurors one by one. Then he let his voice drop into the quietest whisper yet and concluded his opening statement.

  “He's lost it,” Barnum said, his breath damp against Seeley's ear. “How can he expect a jury to believe in his case if he doesn't believe in it himself?”

  “Puzzling,” was all that Palmieri said, snapping his laptop shut.

  But Seeley knew that Thorpe's fecklessness was a ruse. This was the same man who last week dashed across the courthouse plaza to proclaim to the television cameras the certainty of his client's victory. But, if he was acting, what was the point? Was the purpose of the charade to get a jury that would not sympathize with a multinational drug company to identify with him instead? Pity me; pity my client. Had Thorpe, with decades of practice in San Francisco, misjudged the jury, or had Seeley?