A Patent Lie

by Paul Goldstein

  Thorpe's examination of Koosmann had purposely left open several holes through which Seeley could have skewered the witness, and Seeley's reflex as a trial lawyer was to do so. Instead, he took no more than a short jab at Koosmann here and there, and otherwise let his testimony stand. If Thorpe wanted the AV/AS patent upheld, Seeley now wanted it struck down. You are me, Emil, and I am you.

  When Seeley returned to counsel's table, and the judge ordered a break, Barnum said, “Is there something wrong with you? That was no cross.”

  Heads turned at the defense table. “Let's just take it one step at a time, Ed.” Seeley put a hand over Barnum's. “I need to talk to Chris.”

  Palmieri followed Seeley out of the courtroom to the picture-lined alcove at the end of the corridor. Five days ago, Seeley stood here grasping an imaginary baseball bat, fighting the impulse to slam his brother from behind.

  Seeley said, “I've decided to do Gupta's cross myself.”

  “But we agreed that I-”

  “I know we did, Chris, but I need to do Gupta.”

  Palmieri backed away, averting his eyes. “You're going to dance around him, the way you did with Koosmann. You're not going to touch him.”

  “I'll do whatever I think is right.”

  “You don't even know for a fact that the parties are colluding.”

  He started away and Seeley grabbed him by the wrist. “There are only a few things I'm certain of, Chris, but this is one of them.” Palmieri shook himself loose and Seeley followed him back to the courtroom.

  Dr. Manesh Gupta, chairman of the Immunology Department at Duke University's School of Medicine, was a pouter pigeon. Short, plump, chest puffed out in a dark three-piece suit, his arrogance approached Steinhardt's. Like Koosmann, his testimony would look good on paper, but his attitude would destroy him with the jury.

  “Yes,” Gupta said for the third time when Fischler asked whether, in light of the research done by others, the discovery of AV/AS was obvious. This time he added, “Any competent first-year graduate student could have done this work.”

  When Fischler finished, Seeley took the notebook Palmieri handed him and brought it to the witness stand. “Dr. Gupta,” he said, handing him the notebook, “I'd like you to look at the expert declaration you provided in this case, which has been marked as defendant's exhibit E. Is this your declaration, Doctor?”

  The immunologist answered that it was.

  “Looking at page nine, Dr. Gupta, do you see references to three publications from scientific journals?”

  “Yes. There are two by Reeves, Kumar, and Constantine, and one by Goldblum et al.”

  “Did you rely on these references in concluding that AV/AS was an obvious discovery?”

  “Yes, I did.”

  “Were these articles difficult to find, Doctor?”

  “No, not for any moderately competent researcher. Someone seriously working in the field wouldn't have to look for them at all. He would have a subscription to the journals.”

  “And is it your opinion that any ordinarily skilled researcher who read these three articles would find it obvious to make AV/AS?”

  The dark head bobbed. “That is correct.”

  This was the moment for Seeley to drive home the dagger's blade, as patent litigators have done since experts first began to testify: If, speaking as an expert, this discovery was so obvious to you, why didn't you make it yourself? Instead, Seeley said, “In your opinion, Dr. Gupta, does Dr. Alan Steinhardt possess at least the knowledge and experience of a moderately competent researcher?”

  Savagery sparkled in the witness's eyes. “Yes, at least.” The patronizing tone left no question about Gupta's estimate of the gap between Steinhardt's talents and his own.

  “In terms of reputation, where would you place Dr. Steinhardt among the ranks of immunologists like yourself?”

  “I'd say that he's generally reputed to be among the top twenty researchers.”

  “How about the top ten?”

  Gupta paused, as if to think. “Yes, perhaps the top ten.”

  “Thank you, Dr. Gupta.”

  “Redirect, Ms. Fischler?”

  There was a hurried conference at the defense table before Fischler said, “No, Your Honor.”

  “Then we will recess for the day.” To the jury, the judge said, “I look forward to seeing you bright and early tomorrow morning.”

  Barnum's fists were on the tabletop, plump knuckles white. “Why didn't you ask him, if AV/AS was so obvious, why he didn't invent it himself?”

  “It's a cheap trick-”

  “And it works-”

  “Read Gupta's deposition. Fischler already prepared him on it. He would have testified that the government grants that fund his lab don't support the kind of work Steinhardt was doing. He was pursuing a completely different line of research.”

  Barnum started to answer, but Seeley was already rising. “Thorpe's waiting for me.” It seemed like months since he agreed to the lunch meeting with his adversary. “I'll see you tomorrow morning.”

  Through his cross-examination of Koosmann and Gupta, Seeley had been aware of the judge watching him. Once, when he slipped over an obvious point of attack on Koosmann's testimony, she shook her head unhappily, as she might at a rookie. She understood what he was doing but, short of granting the mistrial Seeley had asked for, there was nothing she could do.

  Gail Odum was at the gallery rail by the gate, and she managed a fleeting smile when Seeley walked by. She had witnessed his colloquy with the judge earlier and it took no great journalistic insight to connect his visit to Farnsworth's chambers to the judge's order barring contact with the press. Odum knew that there was a story here, and Seeley wondered whose ache was deeper: hers to hear the story or his to tell it.

  “Do you know Schroeder's? A wonderful old place.” As usual, Thorpe's shuffle disappeared as soon as he was out of sight of the jury, and he had no trouble keeping up with Seeley. Market Street where it crossed McAllister churned with life. Young men in wheelchairs zipped across the broad sidewalk, practicing wheelies. Others in elegant exercise outfits and just-out-of-the-box running shoes talked and smoked in clusters at corners and in the doorways of shuttered storefronts.

  “It's an old-style German place,” Thorpe said. “A bit of a tourist trap, but if the Koenigsberger Klopse is a special, be sure to order it.”

  So reticent in the courtroom, Thorpe now couldn't stop talking. “San Francisco used to be a real trial lawyer's town. There weren't more than ten of us who had a real trial practice back in the fifties. Jake Ehrlich, Mel Belli. Of course, I was just a kid coming up. Federal or state court, civil or criminal, it didn't matter. What mattered was the art of trial practice. Today, anyone with a law degree thinks he's a trial lawyer. There's a lot the old-timers could teach them.”

  As they approached the financial district, steel-and-glass office towers crowded the bantam office buildings of another age, and Thorpe, still spilling with stories, pointed out the Monadnock Building where his small firm had its offices. The Art Deco facade shimmered like a mirage in the mirrored sheathing of the office tower opposite it.

  Schroeder's was on Front Street, around the corner from Tadich, its fresh blue-and-white facade and gothic heraldry evoking old Bavaria. Inside, pillars lost themselves in the murky heights of the dining room. Waiters scuttled about in the amber light below and there was a faint malty scent about the place. Thorpe ordered his Koenigsberger Klopse and a dry martini. It startled Seeley how just the word “martini” shot adrenaline into his heart. He asked for a steak sandwich, rare, and a glass of water.

  When Thorpe started in again about the legendary Jake Ehrlich, Seeley said, “I'm sure this is fascinating, but I could be back in my office preparing for your next witness.”

  Thorpe's laugh sounded genuine, but the eyes, wary as ever, told Seeley that there was a point to the story, and that he should listen closely.

  “Back then,” Thorpe said, “the really great trial lawyer
s like Jake had a single ideal: represent your client as shrewdly and strenuously as you humanly can. They played fair, but that was their ideal. They didn't get mixed up with causes. A lawyer today, representing people who care about the environment or abortion or access to medicine, nine times out of ten, he'll sacrifice his client if he thinks it will serve the cause.”

  It astonished Seeley that this profoundly immoral man should rebuke him for what he was doing, but the message was unambiguous. Thorpe knew that Seeley had discovered the collusion.

  “Jake and the others lived rewarding lives-and long ones.” Thorpe studied his manicured fingers spread out on the table. The nails, bluish at the edges, glowed against the dark, scarred wood. This time, when Thorpe looked up, he was smiling.

  Seeley said, “And this is why your courtroom work for St. Gall has been so aggressive.”

  If Thorpe caught the irony, he didn't reveal it. “You know how this kind of litigation works, Michael-or do you? For a drug company like St. Gall, every one of its patents represents millions of dollars in R amp;D, hundreds of millions for the blockbusters. So any time a court rules that a patent is invalid-not just a St. Gall patent, but a Vaxtek patent, too-it makes for… let us say, a precedent, a legal climate, that is unfavorable to my client's patents.”

  Thorpe waited for the white-aproned waiter to place the cocktail glass in front of him before continuing.

  “Today a jury in a San Francisco courtroom holds your client's patent invalid and, who knows, tomorrow, maybe in Boston, or London, or Amsterdam, it will be my client's turn to have its patent struck down.”

  Thorpe couldn't expect him to believe that this was how St. Gall plotted its litigation strategy. On this premise, no pharmaceutical company would ever sue for patent infringement.

  “If that was your client's strategy, you wouldn't have stipulated priority.”

  “As you know”-Thorpe sipped at his martini, but kept his eyes on Seeley-“we have a small problem with a witness on the question of priority.”

  “How's that?”

  “I know about your lunch with Dr. Warren. That was inappropriate, of course, for you to talk to an adverse witness without going through me.”

  “She wasn't an adverse witness when I talked to her.” How did Thorpe know about the meeting? “You'd already dropped her from your list.”

  “Well, I suppose we had.” Thorpe looked around the room. Most of the lunch crowd was gone. “What do you think of this place?”

  “Very… old world.”

  Thorpe tilted his head and gave Seeley a silly grin that didn't fit the haggard features. “Old San Francisco.”

  The waiter arrived with the food. Thorpe's Koenigsberger Klopse were two large meat dumplings under a layer of cream sauce mixed with capers. A small mountain of red cabbage crowded one side of the plate, a pile of fried potatoes the other. Thorpe sampled a forkful of dumpling. “This is wonderful. Would you like some?”

  Seeley shook his head. He'd had another sleepless night and was exhausted from the morning's cross-examination. Thorpe's winks and grins chafed at him. The dregs in the martini glass looked like salvation.

  Seeley said, “I wonder if Jake Ehrlich would have done any of the harebrained things you tell me you've been doing for your client.”

  Thorpe's smile disappeared. “At the end of the day, Michael, you're out of your element here, and you would do well to take instruction about this case.” He went back to his meal.

  For all of the lawyer's chatter, Seeley realized, Thorpe had said nothing expressly to admit that Vaxtek and St. Gall were colluding, or that he had a part in it.

  Thorpe took his time chewing, and when he finished, said, “You think I invited you to lunch to talk about settlement.”

  Ten days ago, when they made the lunch date, that had been the object.

  “You know,” Thorpe said, “a case can settle at any time-five minutes before the jury returns, or five months before the complaint is even filed.”

  “What are you getting at?”

  “What I'm saying”-Thorpe was as tired of Seeley as Seeley was of him-“is that you know nothing about this case. What if-and I'm only speaking hypothetically of course-what if this case that you want us to fight like two gladiators has already settled? Say that our clients signed off on it months ago. In that event, we would be no more than actors, you and I. Actors in a charade. We'd do well, wouldn't we, to play the part we've been assigned?”

  Seeley said, “Two parties can settle a case, but they can't turn an invalid patent into a valid one.”

  “Validity. Invalidity. This is a gray area, a swamp. Wise men stay clear of swamps.” Thorpe speared a home fry. “This is a good time to be wise rather than smart.”

  “There's an issue of principle here.”

  “No, in my hypothetical case there's only an issue of money, and when the case is over all that will happen is that money will move from one party's bank account to another's-”

  “But only because patented vaccines cost more than unpatented ones. What about the millions of AIDS victims in Africa who can't afford AV/AS?”

  “Who's talking about AV/AS? This is just a hypothetical situation I'm describing. What you're talking about is international politics. That's way over our heads-who's going to subsidize access to the vaccine, who's going to lobby for condoms, who's going to insist on abstinence. This is way beyond the reach of two trial lawyers.”

  “Did you have this little heart-to-heart with Robert Pearsall before he was killed?”

  For the first time since he started eating, Thorpe put down his silverware. Two tables away, a head turned. Thorpe's voice was quiet but pitiless. “You know even less about Bob Pearsall than you do about his case. He was a complicated man.”

  “Studying philosophy never killed anyone.”

  “Then you have forgotten your Dialogues, what Plato had to say about the trial and execution of Socrates.” Thorpe took in Seeley's surprise. “You attended a Jesuit college. Of course you read the Dialogues.”

  The old lawyer surveyed the almost empty dining room. “You have also mistaken San Francisco's surface charms for its substance. This city can be a very dangerous place for lawyers who let their ideals get in the way of their pragmatism.”

  Seeley said, “We really deceive them, don't we? You, your buddy Jake, and me.”

  “Deceive who?”

  “We let people think that some lawyers are good, doing their pro bono work, while others just chase after money. But that's only a distraction so that people don't consider the real harm we can do, the corruption, the profound evil that a lawyer can commit.”

  After that, they could have been strangers, or a father and his son, the way that they finished their meal in brooding silence.

  Seeley spent the rest of the day preparing for tomorrow's witnesses. He needed a break from Palmieri, and the young partner didn't complain when Seeley sent him off to write the first draft of his closing argument. McKee was in and out of Seeley's office, educating him on technical details of the AV/AS patent that Seeley would need for his cross-examination. It was almost 11:00 when Seeley filled his briefcase with papers and turned out the lights.

  As much as he enjoyed his solitary morning walks from the Huntington down to Heilbrun, Hardy's offices, it was retracing that route at night, the great dark bay at his back, that truly gave Seeley pleasure. Except for Grant and Stockton, still a blaze of neon with streams of shoppers and late-night diners, the maze of streets spidering out from the Embarcadero along and across the borders of Chinatown was deserted at this hour. The signs on the darkened storefronts mixed Chinese characters with English words and, in the shuttered tenements that rose above them, Seeley felt the presence of alien lives, sleeping, eating, watching the Chinese soap operas on cable. He felt safer on this empty street than he did across a restaurant table from Thorpe.

  He thought of Lily, as he had throughout the day. If he could persuade her to tell the Chronicle what she knew about Steinhardt an
d his work on AV/AS, that could be the trigger for the mistrial that he needed. Each time, though, Seeley dismissed the thought of asking her for help. It wasn't Judge Farnsworth's order not to talk with the media, directly or through others, that concerned him; he could handle those consequences if he had to. No, he admitted to himself, what stopped him was the simple thought of picking up the phone. Asking for help was Leonard's weakness, not his.

  As he crossed Joice Street, a dim alley off Sacramento, Seeley felt his skin prickle. He sensed that he was no longer alone. A sound like the rattling of dry leaves swept up the alley-his thoughts shot back to the dark sedan by the railroad tracks-but the tempo was pointed and rhythmic and had an unmistakably human source.

  The rattling stopped, and an instant later a sharp blow at the back of Seeley's knees sent him crashing to the pavement. A second blow stung a shoulder, and his chin struck the asphalt. A burst of high-pitched chatter like a quarrelsome flock of birds flew up from his assailants, and at once pointed sticks expertly dug and prodded at his body. The voices were harsh and nasal, and the words-it sounded like an Asian language-were as sharp as the probing sticks. His attackers were rebuking him for some offense.

  In English, one cried, “DO NOT ENTER! DO NOT ENTER!”

  Seeley turned in the direction of the screeching demand and raised himself, crooking an arm to protect his eyes from the continuing blows. He was looking at a boy, no older than seventeen or eighteen, his long dark hair streaked with blond, frantically shaking a bamboo rod in the direction of a street sign where the alley began. Seeley was stunned that the blows had already driven him this far from the intersection.

  “DO NOT ENTER! DO NOT ENTER!”

  The traffic sign at which the boy was pointing displayed a red circle with a slash through it, warning drivers not to enter the one-way alley. The boy's cries turned to shrieks of hysteria as he gestured with the bamboo to his companions. All three were in T-shirts and baggy chinos cut off above the ankle, rubber flip-flops on their feet. At a whoop from the leader, there was a flurry of lashings, several striking Seeley across the ribs, others pummeling his sides. The pain of each blow was excruciating, but Seeley forced himself not to cry out; he would not give them that satisfaction.