A Patent Lie (25 page)

TWENTY-ONE

At four in the morning, Seeley was still awake, stretched out on his bed in shirt and trousers, too restless, but also too exhausted, to get under the covers. He left Lily fifteen hours ago. If it took her two hours, even three, to call Gail Odum, the story exposing Steinhardt and Vaxtek's fraud could appear in this morning's edition of the
Chronicle
. She and Odum had talked before; this was no stranger calling with a wild tale. Big stories made it from street to press in less than half the time.

He had left a message at the hotel front desk for the
Chronicle
to be delivered to his room as soon as it arrived, and when there was a sharp metallic rap of a key against the door, he knew it was the bellman with the paper. The man was sullen and reeked of off-hours cigarettes. Seeley handed him a twenty-dollar bill from the night table, as if it were a bribe to ensure that the story would be in the paper.

The
Chronicle
front page was as crammed with color as the Sunday comics. A political opponent charged the city's youthful mayor, recently out of rehab for alcohol abuse, with using cocaine. An article explained step by step how a middle-class Bay Area resident could pay for an otherwise unaffordable home. Conditions in an Iraqi orphanage were squalid, and circumcision was falling into disfavor among American parents. But nothing on the crowded page told the story of a Chinese researcher whose discovery of a major AIDS breakthrough had been stolen by a world-renowned scientist and patented by his employer.

Christmas and birthday gifts were rare when Seeley was growing up, but he experienced the same electric sense of anticipation as he turned over one page to the next, scanning each quickly but carefully. Is there any cocktail more potent than the expectation that your every desire is just around the corner and the simultaneous certainty that it will not be there?

There was nothing in the paper's first section or in the regional news, but Seeley's heart caught when Odum's byline jumped out from the third page of the business section. The headline seemed a jumble, and the story, when he looked more calmly, was about not Lily but the Silicon Valley executive whose trial had been under way in the federal courtroom next to Seeley's. In the photograph that accompanied the story, Seeley recognized the handcuffed defendant as the man who had moved quickly past him in the corridor last week.

Seeley paged through the rest of the business section and, his hope rapidly dwindling, the sports and entertainment pages, even the classifieds. Then he examined the entire paper again, running his index finger down the columns of each page until it was stained black. By the time he put the paper down, he realized that the sadness he felt was not so much for the missing story, as for his selfishness in pressing Lily to tell it. He was just a lawyer caught up in a miscreant case. This was her entire future.

He went into the bathroom and washed his hands, then collapsed onto the bed, falling at last into a dreamless sleep.

The rest of the day slipped by like a familiar nightmare. A microbiologist, the first of Thorpe's two remaining infringement witnesses, took the stand in the morning. As deliberately as Seeley framed his questions for the scientist—adjusting their pace, hiding traps—the futility of the effort ground down what little hope remained in him. Once, when his concentration broke, his thoughts veered to Lily and his rash surrender to her of the decision whether to go to the newspaper. His tone when he returned to the witness was so harsh that Barnum gave him a puzzled look, Palmieri a worried one. Who, Seeley asked himself, was he so angry at? Candidates filed through his thoughts like figures in a police lineup. Who was he
not
angry at?

Midway through the afternoon cross-examination of Thorpe's last infringement witness, an immunologist, Seeley's thoughts again wandered. Tomorrow would be the last day of testimony. Charles Weed, a prominent New York patent lawyer who was on Thorpe's witness list to sustain the illusion of a vigorous attack on the Vaxtek patent, would testify that he had long ago advised St. Gall that the AV/AS patent was invalid, so that the company was free to copy it. How was Thorpe going to slant Weed's testimony to advance the fraudulent lawsuit? Perhaps he wouldn't try. Closing arguments were on Friday, when Seeley would attempt an illusion of his own: arguing for the AV/AS patent's validity while trying desperately to undermine it.

The immunologist droned on, and the space between him and Seeley seemed to darken. With a start, Seeley felt himself surrounded by the same gray, turning mass that once wallpapered the bleakest of his hangovers.

No message from Lily waited for him at the Huntington, and there was no story on the evening news about a Chinese scientist blowing the whistle on the theft of her pioneer discovery. Seeley didn't bother to call down to the hotel desk for an early copy of the
Chronicle
, but when he walked through the lobby the next morning he glanced at the first page of the paper lying on the scarred wooden counter. There was nothing there or in the business section, so he went out into the bright day, striding the mile to the courthouse briskly, as if that would shake the needling demons. When he arrived, Palmieri was waiting outside.

“Another gorgeous day in paradise,” Palmieri said, without the barest hint of irony. Seeley thought that if he had a gun he would shoot his second chair. No, he changed his mind, he would shoot himself.

_____

Even seated on the witness stand, it was easy to see that Charles Weed was the tallest man in the room. Thorpe had qualified the witness—Princeton 1952, Harvard Law 1955, senior partner of Weed and Weed, the Manhattan firm founded by his father and uncle, and one of the few patent specialty firms not yet absorbed into a large corporate law firm—and Weed was now testifying about the opinion that he had written at St. Gall's request when the company was deciding whether to develop an AIDS vaccine. All bones and paper-dry skin in his heavy herringbone tweeds, only the patent lawyer's austere, patrician bearing hid the meanness of his narrow eyes, the hawk's beak, and lips thin as wire. Eight years ago, Seeley had retained him as an expert in a patent case and quickly discovered that behind the upright pose was a thoroughly unprincipled man. Seeley also remembered Weed's one fine physical feature, hands as long and slender as a pianist's or a magician's. They now rested gracefully on a crossed knee as he answered Thorpe's questions on direct examination.

The patent opinion that Weed had prepared for St. Gall was one of the first documents Seeley read when he was still in Buffalo, and it addressed both the validity of the AV/AS patent and St. Gall's possible infringement of it. Weed wrote out his opinions in longhand and, studying the copy Barnum sent to him, Seeley could picture the long tapered fingers moving across page after page. The Vaxtek patent was invalid, Weed wrote, and even if a jury were to find it valid, St. Gall's own product would not infringe it. So far, though, Thorpe had asked Weed only about the infringement part of his opinion, not validity, and Seeley was certain that the examination would end without Weed once stating his opinion that the patent was invalid.

“Cross-examination, Mr. Seeley?”

Seeley glanced at Palmieri, who gave him a desolate look. Thorpe had been meticulous in limiting the scope of his direct examination—as had been Weed in giving his answers—and neither gave Seeley an opening to question the witness about his opinion on the patent's validity.

“Mr. Weed, you have testified that in your opinion defendant St. Gall's product would not infringe the patent on plaintiff Vaxtek's AV/ AS, is that correct?”

“That is correct.” The voice, somber and august when answering Thorpe's questions, had acquired a patronizing edge.

“And on what do you rest that opinion?”

“I rest it on my forty-nine years' experience as a patent lawyer.”

Weed was playing with him. The witness knew what Seeley's question meant, but had willfully misinterpreted it. Seeley let himself be distracted for a moment by Weed's green silk tie with its pattern of horse heads and riding crops.

“Let me rephrase that for you, Mr. Weed. I didn't mean to get into your background. What I meant was, do you rest your opinion on any assumption about the validity or invalidity of the AV/AS patent?”

“Oh, well, in that case, of course, I premised my opinion on the assumption that the patent was valid.”

More than any question so far in the trial, Seeley wanted to ask: And in your opinion is the AV/AS patent in fact valid? But, before the words were out, Thorpe would object that the question went beyond the scope of direct, and Farnsworth would sustain him. Weed was the trial's last witness, and Seeley's time was running out. While Seeley waited for an opening, he hammered at Weed, as he had at Thorpe's infringement witnesses, on his opinion that the St. Gall product did not infringe. The harder Seeley pressed, the more severe Weed's condescension grew. This was not an adversary's ploy; it was in the man's genes. Weed had looked down on Seeley even when it was Seeley who hired him.

Weed leaned forward to emphasize a point, exposing a snowfall of dandruff and a few wisps of hair across the shoulders of the dark tweed. At that moment a fact struck Seeley that, had he not been so absorbed by his dislike for the man, he would have seen at once: Weed knew about the collusion. The moment Thorpe told Weed that he was not going to testify on validity, this man who had in his career been through hundreds of patent trials, both as a litigator and as an expert, knew that the case was rigged. It probably wasn't his first such trumped-up case. He and Thorpe had probably laughed about it over cocktails the night before. The old bastard knew, and Seeley was his sport.

Seeley was done. “No more questions, Judge.”

“Mr. Thorpe, redirect?”

Thorpe's questions on redirect moved quickly, and Seeley watched the practiced rhythm of two lawyers who instinctively knew each other's moves. When Weed was Seeley's expert, they had never worked like that. One by one, Thorpe took Weed through the three other patents that Weed had analyzed in his opinion in addition to AV/AS.

Why was Thorpe doing this? By having Weed give his opinion on the validity of these other patents, Thorpe seemed to be inviting Seeley to ask the witness about his opinion on the validity of AV/AS itself. Without waiting for the judge, Thorpe turned to plaintiff's table and, with a look that told Seeley nothing, said, “Recross, Counselor?”

Like Thorpe, Seeley marched Weed through his conclusions on the validity of the three other patents, working to establish the same rhythm his adversary had, asking himself all the time how to wedge in the same question about AV/AS. He saw no way other than forward. Drawing in a quick breath, but not losing the rhythm, he said, “Mr. Weed, did you render an opinion on the validity of the AV/AS patent?”

“Yes, I did.”

Seeley knew he did. Weed's opinion had been that Vaxtek's patent was invalid. Seeley blocked out any awareness of movement at the defense table and stayed with the tempo he had established, as if by will alone he could drive past any objection from Thorpe and any consequence for abandoning the pretense that he was defending the AV/AS patent, not attacking it.

“And would you tell the jury what that opinion was?”

There was a beat in time, but no reply. Then another missed beat. In front of him, high on the ridge of Weed's cheekbones the scattering of small burst capillaries—was he a drinker, Seeley wondered, or just a cold-weather duck hunter?—grew redder. For the first time, a light went on in the witness's narrow eyes, a twinkle that only Seeley would see. At that moment, Seeley realized the catastrophic scale of his error. The two of them, Thorpe and Weed, had set him up. With one stupid mistake, he had undone all of his cautious footwork of the last three days and won the case for Vaxtek and St. Gall.

“Well,” Weed said, “in my written opinion, which has been made an exhibit, I concluded that the AV/AS patent was not valid, but—”

“Thank you, Mr. Weed, I have no more—”

Thorpe was on his feet. “Let the witness finish!”

Judge Farnsworth shifted forward in her chair. “Is that an objection, Mr. Thorpe?”

“Yes, Your Honor, it is. The witness has a right to finish his answer.”

Farnsworth at once saw what was happening. The trial was rolling to the conclusion the parties had planned, and there was nothing legally she could do to stop it.

“Sustained. Mr. Weed?”

Weed leaned back in the witness chair and tented his slender fingers in front of him. “As I was saying, I wrote in my opinion that the patent was invalid, but I will confess to you, Mr. Seeley—I'm under oath here—that I have written hundreds of validity opinions in my career, but I have never been more ambivalent about one of my opinions than I was about this one. Some mornings, before finally writing my opinion, I'd wake up and think, That patent's valid. The next morning, though, I'd be of a different mind.” Condescension seeped from him like a toxin. “And it was the same even after I wrote the opinion and sent it off to my client: some days valid, other days not.”

Seeley rapidly scanned the jury as he returned to counsel's table. Even the dullest of them understood what had just happened. A defense witness had admitted the possibility that Vaxtek's patent was valid, an admission that, however equivocal, would weigh as heavily as all of the opinions of Vaxtek's hired experts together. The kid slunk down in his chair, and fingered his ponytail; his expression—was it a smirk? a scowl?—was indecipherable.

Barnum's large hand clasped the sore shoulder, and Seeley felt the moisture of the man leaning into him. “Talk about a wild ride,” he said. “I don't know how you pulled that off.”

How could Seeley have forgotten that, from Barnum's perspective, Weed's concession that the AV/AS patent might be valid was a triumph.

“You took ten years off my life, asking him what he thought about the patent. How did you know he changed his mind?”

“Second sight. A trial lawyer's instinct.” Which was precisely what had failed him: the instinct to skirt a trial's black holes. You never ask a witness a question when you're not certain of the answer, and the fact that Weed's deposition gave one answer was no assurance that, at trial, he would not give another.