A Patent Lie (8 page)

In the hallway he called out to Judy to let her know he was leaving.

She came into the front hall, drying her hands on a towel. “Did you find what you were looking for?”

“I think so,” Seeley said. “Your husband had a fine eye.” He showed her one of the notebooks. “Would it be all right if I borrowed these for a few days?”

“Of course,” she said. “Bob called them his doodles.” Then the firm voice wavered, as if something had caught in her throat. “I know it's not why you came, but did you find anything that shows the police are wrong?”

“All I found were the drawings,” he said. How many times had he lifted others' hopes to the level of his own, only to let them down? He was not going to make that mistake with Judy Pearsall. “I'll let you know if I come across anything.”

The doorman was still at his desk in the lobby, and Seeley found a corner out of earshot where he could call the office. Tina picked up the phone on the first ring.

“Did you find Lily Warren?” If, as Pearsall's question indicated, Steinhardt was hiding something, perhaps his postdoc—and alleged thief—could tell him what it was.

“I checked the local directories. There's a number in Half Moon Bay, but it's unlisted.”

“Chris said there was something about her in the
Chronicle
a few weeks ago. See if you can find it. Maybe there's a copy in the work-room. Call the reporter and ask him if he has her phone number.”

“Do you really think he'll give it to me?”

“No. Just see if he kept the number. And ask Boyd McKee to meet me in my office in half an hour.” McKee was the Heilbrun, Hardy lawyer who had prepared the application for the AV/AS patent. Like Warren, he might be able to explain to Seeley how Steinhardt made his scientific breakthroughs.

Pearsall's office, which had been assigned to Seeley along with the conference room, was one floor up from Heilbrun, Hardy's reception area. Seeley passed his key card over the electronic lock to the double door and took the private corridor to Tina's cubicle. She handed him an orange message slip.

“It's the number for the reporter at the
Chronicle
.”

“Did he have a number for Lily Warren?”

“He's a she. A business reporter.”

Seeley looked at the slip. The reporter's name was Gail Odum.

“She said you can call her at the paper anytime before six.”

Seeley folded the slip and put it in his pocket. “What about Boyd?”

Tina said, “He gave me the impression that he's too important to wait in your office.” The crease in her brow told Seeley that McKee wasn't one of her favorite lawyers at the firm. “He said if I let him know when you got in, he'd see if he could find the time.”

Patent lawyers had only lately ascended to the aristocracy of the American bar. Trained not just as lawyers but as scientists or engineers, and working in small, specialized firms, they were at one time rudely dismissed by corporate lawyers as gearheads in green eyeshades, not good enough at science to be scientists, nor sufficiently talented at law to be real lawyers. Then came the intellectual property revolution of the 1990s, and these onetime outcasts found themselves ruling the last vibrant corner of the American economy. Suddenly every large corporate firm like Heilbrun, Hardy had to have its own patent department. But even as the corporate firms sought mergers with the few remaining intellectual property boutiques, the tensions between the two camps persisted.

Seeley dialed the number Tina gave him for Gail Odum at the
Chronicle
. Her voice was hard to hear over the clatter of keyboards in the background.

She said, “Lily Warren is a source. I told your secretary, I can't give out a source's telephone number.”

“I understand that,” Seeley said, “but could you call her yourself and give her my number so she can decide if she wants to talk with me?”

“What would I tell her you want to talk about?”

Seeley knew the reporter would jump at any suggestion that a question had arisen about the trial. Still, he had to give her a reason to call Warren, and he had to give Warren a reason to call him.

“Tell her it's about a stipulation in the Vaxtek case.”

“What stipulation?”

“Just tell her. She'll understand.”

“And if I get her to talk to you, you'll give me the story?”

“I don't know that there is a story.”

“But if there is.”

“I can't promise that.”

The reporter was silent and the sounds of the newsroom took over. After a few seconds, Seeley said, “Look, if it turns out there's a story, and if I can give it to you, it's yours. You'll have an exclusive.”

There was another silence. Then Odum said, “I'll tell her you want to talk to her.”

Seeley gave her his phone number and hung up. He opened the loose-leaf litigation binder he was assembling—a trial notebook, but without pen-and-ink sketches—and removed the copy of U. S. Patent No. 7,804,438: Human Neutralizing Monoclonal Antibodies to Human Immunodeficiency Virus.

Like all patents, this one had begun as a somewhat different document, an application for a patent prepared by McKee. If the application followed the usual back and forth between the patent lawyer and the examiner in the U. S. Patent Office, it had been revised repeatedly, the patent examiner insisting that McKee narrow the scope of Vaxtek's claimed invention and McKee pushing back to get the broadest scope of protection he could. After two years of these negotiations, the patent that finally issued was a compromise that described precisely how far Vaxtek could go to stop anyone else from making, using, or selling a vaccine that was similar to AV/AS, much as the legal description for a parcel of real property describes the landowner's boundaries.

Seeley was reading the patent for what felt like the hundredth time when McKee walked in.

“Hey,” McKee said, “what's up?”

Seeley guessed that the patent lawyer was in his early thirties, which meant that he couldn't have been a Heilbrun, Hardy partner for more than a year or two. The tennis shirt and jeans showed off a good build; McKee's head was shaved as smooth as a billiard ball.

Seeley said, “I wanted to talk to you about the Steinhardt patent.”

McKee dropped into the chair across from Seeley and draped his arms over the sides, looking as exhausted by the effort if he had just finished a triathlon. In another minute, Seeley thought, he's going to put his feet up on the desk so I can admire the soles of his high-tech running shoes.

“AV/AS?” It was a groan, not a question. “You don't think it's a little late?”

Instantly Seeley felt older than forty-seven, and the day that had started so brilliantly turned dark. “Did you review Steinhardt's lab notebooks before you filed the application?”

“Of course I did.” He sat up straighter. “It's standard procedure.”

“Was there anything to indicate that Steinhardt wasn't the sole inventor?”

“He's the only one who signed off on the entries.”

A bench scientist's lab notebooks should be as precise and complete as a ship's log. If some of the hardest-fought patent battles are over which of two competing inventors completed the invention first, it is the laboratory notebooks, witnessed by others in the lab who understood the invention, that provide the indelible fingerprints of priority.

Seeley said, “When was the last time you wrote an application for a drug patent that named only one inventor?”

Mousetraps have sole inventors, as do windshield wipers and railroad couplers. But pharmaceutical inventions are team efforts. Seeley had reviewed dozens of other patents to see how close their subject matter was to AV/AS, and none listed fewer than three inventors.

McKee said, “When was the last time you wrote a patent application?”

The accent and attitude were pure New York—Brooklyn, Seeley guessed. McKee knew as well as he did that trial lawyers litigate patents, they don't apply for them. “Did you interview any of Steinhardt's witnesses?”

McKee swiped a hand over his shaved head as if he were brushing back a lock of hair. He was sitting erect now and the other hand was a fist in his lap. “Steinhardt said I didn't have to. He said he was the one signing the inventorship oath, so it wasn't my problem. Even if I pushed him on it, he'd never let me talk to his witnesses.”

“Vaxtek's your client, not Steinhardt.” Seeley made no effort to hide his anger. “You realize, because you let Steinhardt intimidate you, St. Gall can destroy our inventorship claim.”

“You try talking to Steinhardt.”

“He's in Paris. That's why I'm talking to you.”

Business clients will roll right over their lawyers anytime it suits their purposes. But evidently no one had taught McKee that the lawyer's first duty is not to let that happen.

McKee shifted in the chair and worked his jaw. “You know, there's a difference between patents on monoclonal antibodies and patents on garbage trucks.”

“What's that supposed to mean?”

“This isn't Brigadier Dumpster.”

Seeley hadn't thought about
Brigadier Dumpster Corp. v. DeSimone and Sons, Inc.
for years. It was the first patent case he had tried after making partner at his old Buffalo law firm, and remarkably the case had made its way into two or three law school texts. Brigadier, a Decatur, Illinois, manufacturer of truck bodies and rigs, owned a patent on the front-end loader that garbage trucks use to lift dumpsters over the truck cab to empty their contents into the hopper in the rear. Brigadier had sued its way around the country, bullying payments from manufacturers that lacked the money or the will to fight its patent in court. The DeSimones, who owned a foundry and fabrication plant in Cheektowaga, outside of Buffalo, had little cash to defend a lawsuit, but when Brigadier sued them for copying their rig, they refused to settle and hired Seeley to defend them.

McKee said, “The guy who taught me patents at NYU thought your defense was brilliant.”

It was clear from McKee's tone that he didn't agree.

“And you?”

“Too much flash, not enough engineering.”

The DeSimones needed more than engineering to win their case. Vincent DeSimone, the older of the two sons, stood with Seeley in the company's parking lot in a driving sleet storm, discussing the litigation to come. The two were watching the company's foreman test a DeSimone rig before it was crated for delivery. Vincent shook his head in disgust at the thought that the government had granted a patent to a device as simple as the Brigadier lift. He said, “My three-year-old could've dreamed one of these up with his Tinkertoys.”

Seeley watched the rig's two robot-like arms swing out over the cab, grab a bin, jerk it up, then toss it in a single, smooth arc backward over the cab. “A catapult,” he said to Vincent.

“A what?”

“The rig is nothing more than a catapult.”

After that, preparation for trial was straightforward. Seeley paged through histories of ancient siege weaponry until he found a diagram for a thirteenth-century advance on the catapult, called a trebuchet, that bore a striking resemblance to the Brigadier rig. He hired a local cabinetmaker to build tabletop operating models of both the trebuchet and the rig. “Just the rig,” Seeley told the man. “I don't want the jury to see the truck chassis or body. And make the two models exactly the same size.”

“Do you want me to paint them?”

“Sure,” Seeley said. “Paint them whatever color Brigadier paints their rigs.”

Three months later, Seeley's entire case consisted of demonstrating to the jury how the structure and operation of the Brigadier rig was virtually identical to that of its medieval predecessor. It took the jurors less than an hour to return with a verdict that the Brigadier patent was invalid. Most of that time they spent composing a note to the judge asking whether there was some way he could order Brigadier to reimburse the DeSimones for their attorney's fees and the expense of building the two models.

Seeley said to McKee, “Are there any catapults out there that St. Gall's going to surprise us with?”

Vaxtek wanted the broadest patent it could get, and McKee had accomplished that by referring in his patent application to only a few prior inventions. But that meant St. Gall could in court come up with another invention—a catapult—that, even though it was not exactly like AV/AS, would be close enough that a jury would vote against the patent.

McKee shrugged. “Steinhardt told me what inventions to cite.”

“And you didn't do your own research to see if there were others?”

“Hey, back off. My instructions were to limit myself to what Steinhardt gave me.”

“That's what Steinhardt told you?”

“No, the chief medical guy. Leonard Seeley.”

It was odd hearing a stranger refer to his brother by name.

A sly smile spread across McKee's face. “You two are related.”

Seeley said, “When was the last time a company's head of research told you what prior art to cite?”

“When was the last time you tried a pharma case? All the drug companies have committees that review the R&D and decide if they want broad patents or narrow ones.”

Seeley said, “But, once a company decides what it wants, did you ever have the company's head of research tell you how much prior art to cite?”

McKee looked unhappy. “No.”

“And because you didn't cite the prior art, St. Gall can argue there was fraud on the Patent Office. The court could invalidate the patent.”

Seeley thought about Leonard and his deceptions. It's one thing to lie that you clipped stories about your brother from legal newspapers. But to bully a young lawyer into deceiving the U. S. Patent Office was dangerously wrong and, by not telling Seeley what he had done, Leonard had exposed him to judicial sanctions for perpetuating that fraud in court. The equation, he knew, was lopsided: when Seeley held facts back from Leonard it was to protect him, and when Leonard held facts back it was to protect himself. He and his brother had that in common—they were both protecting Leonard Seeley.

McKee said, “St. Gall's complaint didn't say anything about fraud.”

“But they can make the argument at trial, and I don't want to be blindsided if they do. Make me a list of all the prior art you would have cited if you hadn't listened to Steinhardt or Leonard Seeley.”