A Patent Lie (13 page)

“Look, Ed, let's go over the list tomorrow and decide on which witnesses we can cut.”

“Steinhardt comes back from Paris Sunday afternoon. If he hears you moved him, he'll go straight to Joel.”

From what Seeley could see, Barnum was not a very good lawyer, but behind the bullying was a middle-aged man with few career prospects who was afraid of his boss. He was doing the best he could to keep his job, and all that he could see was Michael Seeley blocking his way.

“Joel Warshaw's not a problem. He'd fire Steinhardt if he thought that's what it would take to win the case.”

This failed to console Barnum.

Seeley said, “Call me tomorrow and we'll talk.”

“I got a call from Herb Phan this morning.” The busy San Mateo police lieutenant had found the time to call the former county prosecutor. Barnum drew close and Seeley again smelled the peppermint. “Herb likes to focus on his investigations, and he doesn't like lawyers looking over his shoulder. You could take a lesson in concentration from him. Forget the widow. Let's win this case.”

Barnum left, giving Seeley his first unhurried moment of the day. With jury selection on Friday, Steinhardt descending from Paris, Thorpe from Akron, and Cordier from New York—he again reminded himself to return Cordier's call—the quiet would be his last for the next two weeks.

Seeley surveyed the patchwork that surrounded the courthouse: parking lots, luncheonettes, a tire store, low-rise apartment and office buildings. Unlike the high-rise canyons of the business district two miles away and the grand, implausible architecture of the Civic Center next door, the jumble reminded him of nothing so much as the desolate heart of Buffalo's once-thriving downtown. The thought of his hometown pulled at Seeley as it did whenever he was away from it, perhaps because, as dark as the memories were, it was the one place where he felt entirely safe. He did not feel safe in San Francisco.

TEN

Click, click, click.

Jury selection moved forward like tumblers falling in a lock, Judge Farnsworth leaving no question about her complete control of the courtroom. On the benches in the first two rows of the gallery, the thirty or so prospective jurors talked quietly among themselves, waiting while the judge ruled on motions in other cases and on a last-minute evidentiary motion from Fischler. Thorpe was still absent, and the judge didn't ask why.

After she disposed of Fischler's motion, Farnsworth turned to Seeley. “Aren't you forgetting something, Counselor?”

The corrected pro hac papers had been filed, but the judge hadn't yet acted on them, and Seeley didn't enjoy being a supplicant. With a teasing smile, Farnsworth said, “Your motion for admission is granted.”

At eight, the judge's clerk, a radiant black woman wearing gold hoop earrings, looked out to the gallery and read a name, Floyd Ramsey, from the paper in her hand, directing the prospective juror to the seat in the jury box closest to the judge. As he took his place in the front row, Farnsworth greeted him. “Good morning, Mr. Ramsey.” She and the clerk continued on this way until they had filled all fourteen seats in the two rows of the jury box.

In a federal civil trial, a jury of as few as six can render a verdict, but the verdict must be unanimous. Palmieri had told Seeley that Farnsworth was going to impanel eight jurors, with the expectation that illness or an unexpected obligation over the course of the two-week trial might drop the number to seven or even six. This meant that, with each side entitled to three peremptory challenges, the judge was going to be strict in ruling on challenges to disqualify a juror for cause.

Surveying the courtroom as he waited for the first panel of jurors to take their seats, Seeley found himself thinking of
m
words: magisterial, medieval, murky. There were no windows in the courtroom, and the shadowy corners and dull reflections off the dark wood paneling made it easy to imagine a royal court or ecclesiastical hall from another century. The two heavy oak counsel tables were large enough for a banquet, and the witness box and desks for the clerk and the court reporter, a sharp stick of a woman with carrot-orange hair, clung like dependencies from the judge's bench. Only the polished granite behind the judge was amply lit, casting a halo around her robes.

The wooden gate separating the well of the courtroom from the gallery squeaked softly when someone passed through it, and Seeley and Palmieri turned when Thorpe came in. Everyone in the courtroom, even the judge, watched as the old lawyer shuffled to counsel's table, but Thorpe gave no sign that he was aware of the attention. Seeley figured his adversary to be in his late seventies, but the way his narrow shoulders locked into a shrug when he put his briefcase down and waited for a nod from Farnsworth to introduce himself had less to do with age, or even fatigue, Seeley thought, than with melancholy. His suit was well pressed, the white shirt starched; a silk tie was neatly knotted beneath a bloodhound's jowls. But sadness clung to him like a garment.

“Emil Thorpe for defendant, Laboratories St. Gall, Your Honor.” The voice was of a piece with the man's appearance: gravelly, tired, sorrowful; the voice of a man who had been up too late, smoking too many cigarettes, pushing large boulders uphill. “I apologize for my tardiness.”

“Your time is your own, Mr. Thorpe, and it is of no concern to the court”—she nodded in the direction of the jury box—“so long as you do not waste the time of these good people.”

Fischler had left for Thorpe the same seat at the head of the table as Palmieri left for Seeley. In addition to Fischler and Dusollier, two men and a woman were at Thorpe's table. Seeley didn't know the men, but recognized the woman as a well-traveled jury consultant. From the jurors' personal and educational backgrounds, and from their body language as the trial progressed, the expert would—or so she promised the lawyers who hired her—tell counsel which questions, arguments, and exhibits would work and which wouldn't. For a case of this size, she would probably also assemble a paid phantom jury to mirror the actual jurors' traits, giving Thorpe the chance to try out his tactics. Seeley thought that these consultants were about as useful as astrologers, and was pleased that Pearsall had rejected Barnum's suggestion to hire one.

Farnsworth thanked the prospective jurors, both those in the jury box and those still in the gallery, for coming to court. Leaning over the bench, her hands clasped in front of her, she told them that the trial involved plaintiff, Vaxtek's, claim that defendant, St. Gall, had infringed Vaxtek's patent on AV/AS, a treatment for HIV/AIDS, and St. Gall's defense that the Vaxtek patent was invalid and, even if it were valid, St. Gall had not infringed on it.

“You will find this to be a fascinating case,” she said, taking care to make eye contact first with those in the jury box and then with those still in the gallery. “It is an important case, too, in terms of its impact on the lives of people around the world. There's going to be some science for you to understand, but these are fine lawyers”—she nodded toward the two tables—“and, together with their witnesses, they are going to be your teachers. You may also hear some things about American patent law, but you needn't be concerned with these until the end of the trial, when I will instruct you on the law you should apply to the facts. This is, I promise, going to be a lot more enjoyable than your high-school biology class, and you'll be glad to know that there won't be an exam at the end”—two or three in the jury box laughed tentatively—“but you will, at the end of the trial, need to come to a verdict, a unanimous verdict.”

Seeley had assigned an associate on the trial team to gather background on all of Farnsworth's cases from the time she was appointed, so he knew that she not only had fewer reversals than any other judge in the Northern District, but also that in her eight years on the bench, none of her juries had ever failed to reach a verdict. This was no accident. Judge Farnsworth lavished on the jurors in her courtroom a degree of attention and care that so exceeded their expectations, the jurors reciprocated with a loyalty of their own. If the judge wanted a unanimous verdict, they would find a way to give her one.

On an easel across from the jury box, questions printed on a poster-sized sheet of cardboard solicited the prospective jurors' name, residence, educational background, occupation, spouse or partner's occupation, hobbies, and whether any of them had previously been a juror or party in a lawsuit. As each of the fourteen in the jury box answered the questions, Seeley wrote the information on a lined white pad and Palmieri typed it into his laptop. Fischler and the jury expert did the same, but Thorpe, slumped in his chair, was absolutely still, giving no sign that his thoughts were here and not still in Akron.

Farnsworth told them that the list of excuses from jury service was short—“This is service to your country, and service requires sacrifice”—and only when she asked whether any of them had views on the patent system that might affect their ability to render a fair verdict, did a hand shoot up. In the second row, a pale middle-aged woman with flyaway gray hair rose from her chair. “The American patent system is a travesty! It's a criminal conspiracy by corporate America to raise prices and keep poor people from getting the drugs they need to stay alive.”

There was nervous laughter among her neighbors and a few murmurs from the gallery. Seeley flipped through the lined pad, but before he could find the page, Palmieri pointed at his computer screen. Faye Simberkoff was single, a graduate of the UC Berkeley information science school, and now worked at a public library in Oakland. When Seeley looked up, Farnsworth was waiting for him to challenge the prospective juror for bias.

Seeley knew that if he challenged Simberkoff, the judge would excuse her from the jury, but he didn't want to leave the thought hanging in the courtroom that patents are bad, nor did he want any juror to think that he had silenced the woman's views.

“It would help us decide whether to challenge for cause, Judge, if Ms. Simberkoff could expand a bit more on her thoughts about the American patent system.”

Farnsworth saw what he was doing, didn't approve, but asked the librarian to continue if she wished. Vigorously gesturing with a raised fist, the woman enlarged her indictment of the patent cabal to include Wells Fargo Bank, Aetna Insurance Company, and the Roman Catholic Church. This time when Farnsworth said, “Mr. Seeley?,” he asked that she be removed for cause, and the judge excused her.

Barnum had positioned himself at the side of counsel's table, where he would, as Seeley anticipated, obscure the jury's view of Palmieri. As the questions continued, Barnum regularly leaned his heft across the table, blind to Palmieri, who was between them, to whisper that Seeley should challenge the prospective juror for cause. Seeley nodded, as if weighing the advice. He had already decided to use one of his peremptory challenges for a pediatrician whose background would give him more credibility with the other jurors than he deserved. Usually physicians try to get out of jury duty, and it bothered Seeley that this one did not; he pictured him in the jury room explaining to the others how Steinhardt's discovery was entirely obvious, and thus unpatentable.

Farnsworth excused two jurors on her own—a woman with a job that made a two-week absence from work difficult, and a man with nonrefundable air tickets to London—and a third, a research employee of the world's largest patent owner, IBM, on a challenge from Thorpe. As each excluded juror departed, the clerk called out another name from the gallery, keeping the fourteen seats filled, until one prospective juror remained whom the judge had not yet questioned, a young-looking software engineer from a small Silicon Valley company.

Palmieri pointed at the laptop screen—Gary Sansone—but Seeley had already started to think of him as the “kid.” With a blond ponytail and a jockey's wiry build, Sansone had an easy smile and the kind of natural authority that could move the others on the jury, even though all of them were older. At Thorpe's request, Farnsworth asked Sansone whether, as an employee at a start-up company, he might have a bias against a giant, multinational pharmaceutical company.

The kid grinned. “That would depend, Your Honor, on how evil and grasping a multinational it is.”

The jury box broke into laughter, and for a full second a smile lit Thorpe's face as he joined in. The jury expert, seated next to him, tugged hard at the hem of his jacket, but he brushed her hand away. With a chuckle in his voice, Thorpe said, “We have no problem with this juror, Your Honor.”

Thorpe had begun his own seduction of the jury. Farnsworth would use her solicitude to make the jurors feel that they were part of her team. Thorpe's tactic was more subtle. Having now seen the phantom of a smile from this austere, sorrowful man, the jurors would work to please him if that was the price to see him smile once more.

The jury liked Sansone, and they wanted Thorpe to like them, both of which meant that if Seeley tried to exclude the kid, he—and his client—would at once become the villains of the trial, even before opening statements. So far, he had measured each of the prospective jurors against a single question: How deeply would Steinhardt's arrogance offend this man or woman? Now, applying the same question to Sansone, he worried. According to the notes Seeley had jotted on the legal pad in front of him, the kid had taken premed classes, mostly in biochemistry, before switching to an electrical engineering major at Santa Clara University. His hobby was bicycle racing, and he read journals like
Science
and
Cell
. He might be sympathetic to Vaxtek as a small company but, like the pediatrician, he could also be the authoritative figure in the jury room who second-guessed Steinhardt and the science behind AV/AS. He could be the juror who kept Seeley from the unanimous verdict he needed.

Seeley decided not to fall into Thorpe's trap.

“We have no objection to this juror, Judge.”

“Then,” Farnsworth said, “if you each exercise your three peremptories, we'll have a jury.”

Seeley tore off from the legal pad the remaining fourteen pages on which he'd written the names and backgrounds of the prospective jurors, and spread them across the table. Barnum pointed at two of the pages, one of them Sansone's. “You can still kick him off,” he said.

Seeley looked past Barnum to the jury box, into the arresting, deep blue eyes of Sansone, then shook his head and picked instead the pediatrician and the two who said their hobby was foreign travel, guessing that, perhaps more cosmopolitan than the others, they would be less responsive to the patriotic bias he had built into his case—protecting American research ingenuity against a foreign poacher. When Palmieri agreed, he wrote the three names on a fresh sheet of paper.

Thorpe was already at sidebar, waiting to hand his three candidates up to the judge. Farnsworth took the two sheets, compared them and removed four of the Post-its she had placed on a chart that indicated the numbered seats in the jury box.

“You see this sometimes,” she said. “You both want to remove the same person.” The retired career counselor whose hobby was foreign travel. She returned their sheets to them. “Why don't you try again.”

Seeley considered what Thorpe's reasons might have been for excluding the career counselor, and again wrote in her name. He folded the sheet and handed it to the judge. Thorpe wrote on his piece of paper and handed it up. This time, after comparing the peremptories, Farnsworth smiled and removed two more Post-its from the chart, leaving eight.

“We have a jury,” Farnsworth said. She handed the chart down to the clerk, and nodded to her to swear in the jury. After that, the judge told them what their duties would be, the procedures they would need to follow in coming to court every day, and cautioned them not to read, watch, or listen to any press coverage of the trial.

Four white faces looked out of the jury box, one Asian, two His-panics, and one black. Five were women, three men. Their ages ranged from twenty-six to seventy-one. Among them were a retired school-teacher; a real estate broker whose avocation was collecting antique dolls; two secretaries, one with a graduate degree in education; a hospital nurse; an AT&T cable splicer from Napa; an accountant who said she lived with her “domestic partner”; and Sansone, the kid.