Ed McBain_Matthew Hope 12 (5 page)

“I’m not sure I understand,” Santos said.

“The next drawing will make it entirely clear,” Nettleton said, and began leafing through the specs again.

“Your Honor,” Brackett said, “this is all enormously fascinating…”

“Actually, I do find it fascinating,” Santos said.

“But it has nothing to do with whether the design was copied or…”

“It may have
everything
to do with differences between the two bears, Mr. Brackett.”

“Your Honor, in order to show originality,
substantial
diff—”

“Well, let’s see the drawing, shall we?” Santos said. “Have you found it, Dr. Nettleton?”

“Yes, I have it right here,” Nettleton said, and handed the pages back to Santos.

“This drawing illustrates the implementation of the optical system in the manner in which I expressed it. As you see, the
wraparound frame allows attachment of the button eyes A and D to the inside surface of the broad temples. The forty-five-degree
mirrors are attached to the inside of the front frame and extend back to the temples. The depth of the frame conceals the
mirrors. Thus, when the uncrossed plastic eyes and surrounding fur—integrated into the temples—are reflected into the fully
silvered mirrors, they appear to be originating from the facial plane of the actual teddy bear.”

“That is ingenious,” Santos said.

“Thank you.”

“Ingenious, Dr. Nettleton.”

“Thank you very much.”

“Don’t you think that’s ingenious, Mr. Brackett?”

“If you’re using the word to mean marked by originality in conception, I must take exception, Your Honor. In fact, if I may
continue with my cross…”

“Yes, please do. Ingenious, Dr. Nettleton,” Santos said, and handed the specifications back to him. “Ingenious.”

Brackett cleared his throat.

“Dr. Nettleton,” he said, “would you know whether there are any eyeglasses in existence which are identical or even very similar
to the ones you designed for Miss Commins?”

“I have no knowledge of any device which
appears
to be a pair of eyeglasses but which is in reality merely a
carrier,
if you will, for reflective mirrors. If designs for any such device exist, I had no access to them.”

“Ah, access. Did Mr. Hope ask you to mention access?”

“No, he did not.”

“Do you understand the meaning of the word ‘access’ as it pertains to copyright matters?”

“I don’t know anything about copyright. I’m an optometrist. I examine the eye for defects and faults of refraction…”

“Yes, yes.”

“…and prescribe corrective lenses or exercises…”

“Yes, but not drugs or surgery Thank you, we already have that, Doctor. What does access mean to you?”

“It means I saw something. I had
access
to it. I knew about it.”

“As pertains to copyright matters, it can also mean you had reasonable
opportunity
to have seen it.”

“I never saw any device like the one I designed for Miss Commins.”

“What if I told you that eyeglasses similar to yours…”

“They are
not
eyeglasses!”

“Your Honor,” I said, getting to my feet, “do you think we might stipulate that Dr. Nettleton’s design is
not
for eyeglasses, but only for a device made to
look
like eyeglasses?”

“I’ll make no such stipulation,” Brackett said.

“Then might Mr. Brackett refrain from
calling
them eyeglasses, when clearly…”

“What should I call eyeglasses but eyeglasses?”

“Let him call them what he chooses, Mr. Hope. Let’s just get on with this, shall we?”

“Thank you, Your Honor,” Brackett said, and turned back to the witness. “Dr. Nettleton, are you aware that a design for eyeglasses
remarkably similar to yours appeared in an industry technical journal many years ago? Would you
still
say you had no access?”

“I never saw my device anywhere.”

“Do you
read
trade journals?”

“I do.”

“Do you read
Optics and Lenses
?”

“I’ve read it on occasion.”

“Have you read the March 1987 issue of that magazine?”

“No.”

“Your Honor, I ask the Court to take judicial notice that this magazine I hold in my hand is the March 1987 issue of
Optics and Lenses.
”

“Mr. Hope? Do you dispute this?”

“No, Your Honor.”

“Judicial notice taken. Move it into evidence as exhibit A for the defense.”

“Dr. Nettleton, I ask you to turn to page twenty-one of the magazine, would you do that for me, please?”

Nettleton leafed through the magazine, found the page, and looked up.

“Do you see the title of the article on that page?”

“I do.”

“Would you read it to the Court, please?”

“The whole article?”

“Just the title, please.”

“The title is ‘The Use of Corrective Lenses in the Treatment of Strabismus.’”

“Thank you. Dr. Nettleton, would you call your eyeglasses a way of using corrective lenses in the treatment of strabismus?”

“No, I would not.”

“Well, isn’t Ms. Commins’s bear cross-eyed?”

“It is.”

“And isn’t ‘strabismus’ the proper medical term for this condition?”

“Yes, but…”

“And don’t your eyeglasses
correct
this condition?”

“Yes, but…”

“Then wouldn’t you agree that your design makes use of corrective lenses in the treatment of…”

“Mirrors. It makes use of mirrors.”

“Lenses, mirrors, all have to do with optics.”

“A mirror isn’t a lens. A mirror is a surface that forms an image by
reflection.
A lens forms an image by
focusing
rays of light. They are two separate and distinct…”

“Doesn’t your design demonstrate one way of treating the condition known as strabismus?”

“Only in the very loosest possible sense. We’re not talking about
real
strabismus here, we’re…”

“Yes or no, please.”

“Given the widest possible interpretation…”

“Your Honor?”

“Yes or no, Dr. Nettleton.”

“All right, yes.”

“Would you please turn to page twenty-five?”

Nettleton turned several pages, and again looked up.

“Do you see the drawings on that page?”

“I do.”

“Would you describe those drawings as specifications for lenses designed to correct the condition of strabismus?”

Nettleton studied the drawings.

“Yes, I would.”

“Would you say they’re identical to the drawings you made for Miss Commins?”

“Absolutely not.”

“Would you say they’re remarkably similar?”

“No, not at all. These are
lenses
designed to correct strabismus. My
mirrors
were designed to create an optical illusion.”

“These specifications were published in an industry journal in March of 1987. Would you agree that you had a reasonable opportunity
to have seen them?”

“Yes, but I
didn’t
see them. And even if I had…”

“By comparison, would you say that
your
design adds more than a trivial amount of creativity to the design in this magazine?”

“I would say they’re entirely different.”

“Oh? In what way?”

“To begin with, the design in the magazine is for
eyeglasses
”

“Well, isn’t
your
design for eyeglasses?”

Nettleton rolled his eyes.

“Your Honor,” Brackett said.

“Your Honor,” I said.

“Answer the question, please.”

“My design is for reflecting mirrors,” Nettleton said wearily.

“Well, those are eyeglasses hanging around the bear’s neck, aren’t they?”

“No. They couldn’t possibly serve as a tool for correcting or improving vision.”

“They look like glasses to me.”

“Your Honor,
please,
” I said.

“Sustained.”

“Would you agree that they
look
like eyeglasses?”

“Yes, but they’re
not
eyeglasses. That is not their purpose.”

“But the basic design is similar to the one in the magazine, isn’t it?”

“No, the designs are not at all similar.”

“You know, of course, that Miss Commins submitted your specifications together with her application for copyright?”

He’s trying to invalidate the copyright, I thought.

“Yes, I know that.”

“How did you come by this information?”

“She told me.”

“Did
you
tell
her
that the eyeglasses for which she was seeking copyright as part of her design were not entirely original with you?”

“They
were
original!”

“Did you tell her that a design for similar eyeglasses had been published in 1987?”

“I didn’t know that. And besides, they’re
not
similar.”

“But a few minutes ago you described those published drawings as specifications for the use of corrective lenses in the treatment
of strabismus, didn’t you?”

“You asked me to read the title of the article…”

“But you agreed, didn’t you, that the glasses were designed to do exactly that?”

“Yes, I did.”

“And you also agreed that
your
glasses were also designed to…”

“In the loosest possible
sense,
is what I…”

“In
whatever
sense, you agreed…”

“Objection, Your Honor.”

“Sustained. Get off it, Mr. Brackett.”

“Tell me, Dr. Nettleton, you said earlier that Miss Commins came to you in April to show you her
original
drawings for a bear she’d designed.”

“Yes.”

“How do you know they were original?”

First the eyeglasses, I thought, now the bear itself.

“Well, they were signed by her,” Nettleton said.

“Yes, but how do you know they weren’t drawings premised on some
other
person’s idea?”

“Objection, Your Honor!”

“I’ll allow it, Mr. Hope. He earlier described the drawings as original. Answer the question, please.”

“Well, I didn’t know where her
idea
came from,” Nettleton said. “She told me it was
her
idea, I had to assume…”

“The same way you told her…”

“Objection!”

“…that the eyeglasses were
your
idea, when in fact…”

“Objection, “Your Honor!”

“When in fact the design for them…”

“Objection!”

“…had already been published as far back as…”

“Your Honor, I
object
!”

“Sustained,” Santos said.

“Your witness.”

The windows, three of them, were on the far side of the building, facing east, away from the parking lot. There was a view
of a strip mall across the way, mini-market in it, video shop, Laundromat, dry cleaners, and bar. Two blond bronzed gods looking
like beach bums in tank top shirts and baggy shorts were standing outside the bar, maybe waiting for it to open. A woman in
a bathing suit and sandals walked into the Laundromat carrying a bundle of wash. It was still sunny and glaring bright outside.

Warren looked at his watch.

All right, let’s get to work here, he thought.

He took the cushions off the sofa, opened the bed—so simple a child of five could do it—hoping to find it neatly made, finding
instead a tangled mare’s nest of sheets, pillow and a single blanket. The bed gave off a faint whiff of sweat and something
else, he didn’t know what. He pulled back the sheets, looking for whatever might tell him he was right or wrong about what
she was doing here in this apartment, but there was nothing he could see, so he closed the bed, and put the cushions back
in place and turned to look around the room again.

Bright sunlight streamed through the windows behind him.

The air conditioner was off, the place was pitilessly hot. A pink baby-doll nightgown trimmed with lace at the hem was lying
on the floor near the sofa, well, now he knew what she slept in. He picked it up, held it in his big brown hands, studying
it. Put it down on the sofa, thought No, she’ll remember, and tossed it on the floor again, where he’d found it. Searched
the floor, saw nothing that told him anything. Checked the cabinet on the right-hand wall as you came in the room, opening
doors and drawers, found nothing. Checked a standing combination bookcase/bar/entertainment center—actually a series of black
wooden shelves resting on a black iron frame—CD and tape player on one of the shelves, but no TV set, another bad sign, he
kept hoping against hope he was wrong. Another round table, wooden, larger than the one in the kitchen, with two chairs that
matched those in the kitchen, was tucked into the corner just to the left of the entrance door as you came in. A phone was
on the table, its cord leading to a jack near the floor. An open address book was resting beside the phone. He pulled out
a chair and sat.