A Patent Lie (16 page)

“I'm in the middle of a trial, Len. I have witnesses to prepare.”

The waiter returned to take their order. As if to re-create the lunch with Lily, Seeley ordered the fried oysters. Leonard shot him a bemused look, patted his waistline, and ordered broiled sole.

Before Leonard could return to Renata, Seeley said, “What do you know about Alan Steinhardt's lab notebooks?”

“What do you mean?”

“Did he keep two sets of books?”

“Of course not.”

Seeley watched for the small bulge in Leonard's cheek where, as a boy, he pressed his tongue when he lied, but there was nothing. “It wouldn't be the first time an inventor cooked the books to get an earlier invention date.”

Leonard said, “Alan's miles above doing anything like that. He knew St. Gall's lawyers would be all over his notebooks, and they were. If anything was wrong, do you think St. Gall would have stipulated priority?”

The perfectly drawn charts and well-crafted paragraphs in the notebooks Seeley examined were as neat and precise as the scientist's custom-tailored lab coat. “How did the notebooks look to you?”

“They were fine.”

“You told me the other day you didn't have time to review your scientists' notes.”

Leonard picked up his beer coaster and played with it. “Are you cross-examining me?”

When Seeley didn't answer, Leonard shook his head and grinned. “We're not going to lose this case. We have Michael Seeley representing us.” He went on talking about his trip to Washington, his dealings with the FDA, and how busy he was. “I promise, I'm telling you the truth about the notebooks.”

The ambience of the suave San Francisco restaurant was nothing like that of the dark and fetid Germania Social Club, but it was the Germania, to which his father would drag Leonard and him when their mother was off on one of her church outings, that drifted into Seeley's thoughts. While his father drank with his friends, he and Leonard would crawl under one of the rough trestle tables and build fortresses out of coasters and empty beer bottles. It startled Seeley to realize that there had in fact been pleasant interludes in a childhood that he was accustomed to thinking of exclusively in shades of black and gray.

The waiter brought their dinners and Leonard busied himself with the food. “No one broils fish the way they do here.”

The starched linen tablecloth and heavy silver were steps above Barbara's Fish Trap, but the oysters, even topped with thick strips of smoky bacon, didn't come close to Seeley's memory.

“It would mean a lot to me if you could stop in and see Renata.” Leonard mopped his plate with a crust of sourdough and shot Seeley a kid brother's look. “You're not afraid of her, are you?”

Leonard had always gotten on well with women. Where Seeley's reflex as a boy was to fight back, Leonard navigated the brutalized household through manipulation, using first Seeley, then their mother as a shield. While Seeley was acquiring the habit of solitude—he could be completely alone even in the middle of football practice—Leonard was practicing the social skills that drew people to him. Maybe this was why women had always liked Leonard. He was attuned to their thoughts and moods in a way Seeley knew he would never be.

“I don't know why you need me to babysit your wife.”

For the first time since they left the courthouse, Leonard lost his bounce. “Renata drinks when I'm away. Sometimes I'll call, and I can hear it in her voice. It's eleven or twelve at night and she's slurring her words. Five, six hours later she's prepping for surgery. I worry about her.”

“I'd think you'd worry about her patients.”

Leonard shrugged. “You're a single man. Marriage is complicated.” He chewed at the bread, then remembered something. “I'm sorry.” He watched to see if Seeley wanted to talk. “I'm sorry about your divorce. I never met Clare.”

Seeley was thinking not of his former wife, but of Gabriela Vega and Lionel Kaplan, the witness she was preparing for tomorrow afternoon. Other work, too, waited at the office. He caught a passing waiter's attention and signaled for the check.

“It's funny,” Leonard said, “talking with you about women. We never did that.”

“There's a lot of things we never talked about.” Seeley put two twenties on top of the check, and stood up to leave. “If I get some free time, I'll try to call her.”

It was already dark by the time Seeley got to his office, and Tina had left for the day. The light was on, and a slender man, compactly built, was in Seeley's chair, his feet up on the desk. A zipper ran up the side of the black ankle boots. One of Pearsall's illustrated steno pads was on the desk in front of him and there was a smell of tobacco in the room. The man swung his feet off and reached across the desk with a business card.

Seeley looked at the card. Lieutenant Herbert Phan, San Mateo Police Department, along with an address and telephone number. On the reverse, the information was in Spanish.

Seeley nodded at Pearsall's notebook. “That's an unlawful search.”

“We're all looking for the truth about Robert Pearsall's death, aren't we? His secretary said I could wait for you here.”

Tina wouldn't have let him in. Phan had probably impressed the thirty-seventh-floor receptionist with his badge and made his way up to the thirty-eighth floor by himself. The lieutenant nodded at the client chair across from him. “Have a seat.”

“You're sitting in it,” Seeley said, remembering at the last moment to smile.

Phan's own smile parted a narrow, neatly trimmed mustache. He drummed his fingers on the armrests. The thick wrists and muscular fingers of a laborer were a contrast to the trimly tailored outfit and carefully barbered graying hair. Phan rose, came around the desk, and took the client's chair.

“What can I do for you, Lieutenant?” Seeley remained standing, so that Phan had to look up at him.

“Ah, yes, lawyers bill by the hour.” The voice was nasal, fl at. “You called us about Robert Pearsall. We thought maybe you knew something that you might want to contribute.”

“Robert Pearsall didn't kill himself.”

“What do you know about that?”

For the first time, Seeley heard an inflection of interest in the detective's voice, but it didn't surprise him. The police have no duty to disclose the scope of their investigation to anyone. They'll tell the grieving widow that her husband's death was suicide even though in fact they think it may be murder.

When Seeley didn't answer, Phan said, “It doesn't happen every day, but a white man of late middle age walking in front of a train happens often enough that it's statistically predictable.” The lieutenant didn't sound convinced.

“How do your statistics explain his being a successful lawyer, in good health with no financial difficulties?”

“Our job is to screen out possibilities until we're left with probabilities. You still haven't told us what you think.”

“Maybe someone knocked him out and dragged him to the railroad tracks.”

“Who would have a reason to do that?”

There was no emotion or even movement in Phan's dark eyes. This was how police investigators talked to civilians, as if they knew their most shameful secrets. In Seeley's experience, they never did.

Phan took a small leather notebook from his inside jacket pocket and flipped through the pages. “His adversary in this case he was working on”—he rested a thick forefinger on a page—“St. Gall. Would they have a reason to kill him?”

“This is an important case, but a drug company doesn't kill a lawyer to win a lawsuit.”

“Maybe Pearsall stuck his nose in somewhere it didn't belong.”

“And you think that's my problem, too.”

Phan pushed back from the desk. Even in the harsh fluorescent light, his skin was as smooth as caramel. “Over the years, Mr. Seeley, we've found that anytime an outsider like you starts asking questions about the way we conduct our investigations, he's got something bothering him.”

“And that's the reason for the visit.”

Phan rested his palm along a tight jaw. “Do you have any enemies?”

“None in California, that I know of.”

“But now you've taken over Robert Pearsall's case.”

Phan was settling in for a long interview, and Seeley was impatient to join Gabriela Vega in the conference room. He also needed to tell Judy Pearsall that the police were considering possibilities other than suicide. He took Pearsall's notebook from the desk. “I've got work to do. Turn out the lights when you leave.”

“We'd like to know if anyone warned Mr. Pearsall before he died.” When Seeley moved to the door, Phan said, “Have you received any warnings, Mr. Seeley? Any unusual incidents?”

“Your receptionist told me you're a busy man, Lieutenant.” Seeley nodded toward the switch by the door. “As I said, please turn out the lights.”

THIRTEEN

It was twenty minutes after Judge Farnsworth's regular starting time, and Palmieri's witness, Yelena Chaikovsky, was not in the courtroom. At regular intervals the Stanford economist telephoned Palmieri to say that she was caught in a traffic jam; that she had been stopped by the highway patrol for speeding; and that she was again stuck in traffic.

Palmieri said, “She'll be here in less than half an hour, Your Honor.” He and Seeley were in front of the bench with Thorpe and Fischler. The jury box was still empty.

“This is why lawyers put their witnesses up in a local hotel.” The judge's eyes were tired and her makeup looked as if it had been applied hurriedly.

Seeley had instructed Tina to make hotel reservations for all the witnesses, but Chaikovsky apparently told Palmieri that she slept better in her own bed.

“Do you have another witness you can put on, Mr. Seeley?”

“He's in the city, Judge, but he won't be here until one.”

“This comes out of your twenty-four hours, Counselor.” When Farnsworth nodded for the lawyers to leave, Fischler pivoted sharply, preening. Thorpe followed, stepping briskly, as he regularly did when he was out of the jury's sight.

At counsel's table, Barnum was livid, his thick hands clenched and white at the knuckles. Seeley steered Palmieri away. “Call Chaikovsky and tell her you'll be waiting at the bottom of the plaza. I'll send Ed out to park her car.”

Barnum's voice, when Seeley took his seat next to him, was a hoarse whisper, the kind that carries. “I want you to do the direct.”

“Lower the volume, Ed. She's Palmieri's witness. He defended her deposition. He's a good lawyer. They won't be able to touch her on cross.”

“We wouldn't have this mess if you'd put Steinhardt first.”

“We're building a foundation. When Steinhardt goes on the stand tomorrow, he'll look like a hero.” The jurors were filing into the jury box. “If you want to keep the trial moving, go wait with Palmieri in front of the courthouse.”

Barnum's eyes filled with misery.

Seeley said, “I don't want them wasting their time looking for a place to park.”

Yelena Chaikovsky arrived twenty minutes later, without apologies and radiating the professional aura that too many lawyers look for in their expert witnesses. Her plump cheeks shone with well-being and the eyes behind her tortoiseshell glasses were keen. The salt-and-pepper hair and the dark flannel jacket and skirt communicated an encompassing competence. But there was a smugness about her that concerned Seeley.

Palmieri was taking Chaikovsky through her résumé—the endowed chair in the Stanford economics department, her joint appointments in the university's medical and business schools—when Fischler rose. “The defense stipulates to the witness's expertise in health economics, Your Honor. There's no need to consume the court's time with her entire résumé.”

Palmieri glanced at Seeley. He was taking time with the witness's credentials not so much to qualify her as an expert for purposes of the rules of evidence as to let the jury know the depth of her expertise. That was why Fischler was trying to stop him. Seeley answered by shaking his head. Let the jury see that the witness had justification for being so self-satisfied.

“Your Honor,” Palmieri said, “if the jurors are to be able to accurately weigh Professor Chaikovsky's testimony, they need to know the background and experience on which it is based.”

Farnsworth, an experienced trial lawyer, knew what the skirmish was about. “As I reminded you earlier, Counselor, the clock is running. If this is how you want to spend your time, the court will not interfere.”

Palmieri took the next five minutes to review the witness's academic degrees, her years at the U. S. Public Health Service, and an extended tour of duty working with epidemiologists at the World Health Organization's regional office in Copenhagen. A glance at the jury confirmed for Seeley that the time was well spent.

Palmieri led the Stanford professor quickly through the history of efforts to discover an AIDS vaccine, beginning in 1984. “And, yet, after twenty-three years, and all this money, and all these scientists hard at work, is it true that no one has come as close to an effective vaccine for AIDS as Dr. Steinhardt has with AV/AS?”

“That is correct.”

There was a movement behind Seeley, and Barnum took his chair at the table. It had taken him all this time to park Chaikovsky's car, and he muttered something that Seeley didn't make out as he took his seat.

“But is it true that, given enough time—and enough dollars and effort—a vaccine for any disease will ultimately be discovered?”

“Unfortunately, the answer is no. For example, there is still no fully effective vaccine for tuberculosis.”

The point of Palmieri's questions was to set up the economist's testimony on AV/AS's prospects for commercial success. Like Cordier's testimony yesterday on the long-felt need for AV/AS, so Chaikovsky's testimony that the treatment would be a great commercial success would help persuade the jury that Steinhardt's discovery had not been obvious to other workers in the field—for, if it had been obvious, and there was money to be made, why hadn't they discovered it first?

Palmieri turned from the witness to the judge. “At this point, may I ask the court to have the lights in the courtroom dimmed, and the projector and screens brought in.”

Pearsall's and Thorpe's teams had argued for weeks over the admissibility of Chaikovsky's charts showing the potential for AV/AS's commercial success and Pearsall had prevailed.

At a nod from Farnsworth, the blue-blazered bailiff switched off half the lights in the already dim courtroom and angled a screen several feet from Seeley's table so that it included the jurors and the judge in its field of view. The second screen he adjusted so that Chaikovsky and defense counsel could see it.

While the bailiff positioned the screens, Seeley thought of Palmieri's mistakes so far—the faulty pro hac motion, typing at his keyboard during Seeley's opening statement, letting his witness spend the night at home—but when the young partner came to the table for his laptop, Seeley said, “You're doing fine.”

Palmieri placed the laptop on the lectern and, after he tapped a few keys, both screens lit up. Few mishaps disconcert juries more than an exhibit that fails to work, and Seeley released the breath that he had been holding.

Chaikovsky's first chart showed Vaxtek's research costs—$320 million—in bringing AV/AS to its current point of development, completion of phase-two clinical trials. The second chart showed the estimated cost to complete the clinical trials and bring the product to market. Total research and development costs were $450 million.

“How much time does Vaxtek have to earn back this investment?”

“Eight years,” Chaikovsky said.

“Why did you pick eight years as the relevant period?”

“Well, a patent lasts for twenty years from the date it's applied for, and Vaxtek applied for this patent in 1997. But it has been ten years, and they're only now starting phase-three trials. I conservatively estimate that it will be another two years before they can actually sell AV/AS in the marketplace—twelve years in all since they applied for their patent—and that leaves them eight years to recoup their investment and make a profit.”

In the shadows, there was talk and movement in the jury box. As Seeley hoped, the brief period over which Vaxtek would be able to recover its costs was a surprise to the jurors.

Palmieri put the next chart on the screen. “On the basis of these numbers, Professor Chaikovsky, what rate of return will Vaxtek earn on its $450 million investment?”

“As you can see from the chart, the company's return over the eight-year period will average out to between twenty-two and twenty-six percent a year.”

“In your experience, studying pharmaceutical companies and their revenues, is that rate of return one that a company would consider commercially successful?”

“In this business, making
any
positive rate of return on research and development is considered commercial success. Remember, only three out of ten prescription drugs in this country even pay back their research and development costs. So a twenty-two to twenty-six percent return is a great success.”

Palmieri tapped a key and a pie chart came up, each slice of a different size and color. Numbers and dollar signs were inside each segment. Seeley had found the chart buried in an appendix to Chaikovsky's expert's report, and instructed Palmieri to include it in his slide show. If Seeley was right, the chart would be as important to the jury as any of the others; probably more important.

“Can you tell the jury what this chart represents?”

“This is the same estimate of revenues that Vaxtek will earn from sales of AV/AS over the life of its patent, but each segment represents a different country or region of the world.”

“Why did you slice up the world this way?”

“Because the revenues from each region will differ.”

“Because of different population size?”

“In part. But the big difference is the amount Vaxtek will be able to charge for AV/AS in each region. If you look at the red segment at the top, that's the United States, where they will be able to charge around two hundred and fifty dollars for each inoculation. But if you look at the big yellow segment at the bottom, that's sub-Saharan Africa, and the average price there is forty-five dollars, less than one-fifth of what they can charge in the States—and that's only with subsidies from governments and foundations.”

From the first day of the trial, Seeley was concerned about the impact on the jury of the protesters outside, and he instructed Palmieri to include the slide to let the jurors know that, in voting to uphold the patent, they would not be pricing Cordier's patients in Lesotho out of the market. Still, when he first saw Chaikovsky's chart, he was surprised that the African price was $45 and not $15 as Leonard had told him it would be.

“Does this mean Vaxtek will lose money on its sales in Africa?”

“No, they won't be losing money on individual sales. But . . .”

“But?”

“If forty-five dollars per inoculation is all they could charge around the world, they'd never make back what they invested in discovering and developing AV/AS.”

Palmieri cocked his head at the screen, as if something there puzzled him. “What would happen to prices in the United States if distributors in South Africa, say, who are buying AV/AS for forty-five dollars a dose, start exporting it to the States. How could Vaxtek maintain the two hundred and fifty dollar U. S. price, if it has to compete in this country with vaccine one-fifth the price?”

Chaikovsky's smug smile widened into a grin. “That's what the U. S. patent is for, isn't it? To keep out lower-priced drugs from other countries.”

Palmieri grinned, too. “In the courtroom, Professor, I get to ask the questions, and you get to answer them.”

The give and take was perfect, but it didn't calm Seeley's concerns about the young partner. He could write off Palmieri's coolness in their early encounters to the jitters of dealing with a new first chair. But the negligence with the motion papers and his witness's lodging was harder to dismiss. So was his continued resistance to Seeley's direction, like insisting that they keep Steinhardt as the lead witness, even though Pearsall himself had wanted to place him lower in the order. If Palmieri wasn't exactly working to undermine Seeley's case, he didn't seem to be enthusiastically supporting it, either.

Chaikovsky said, “I was assuming when I made these charts that Vaxtek's patent would be upheld and that it would be able to exclude low-price competitors.”

“And if the jury voted to strike down the patent? If Vaxtek couldn't keep the cheap drugs out?”

“Vaxtek would lose all of the almost half-billion dollars it invested in AV/AS.”

Palmieri snapped the laptop closed. “Your witness.”

Fischler fired off three brisk questions before she even reached the lectern. The man-tailored suit was intentionally aggressive, Seeley thought, but the oxford button-down and patterned silk tie were what a law student might wear to her first moot court argument.

“These charts you fabricated, Professor Chaikovsky, are they based on assumptions?”

The witness winced. “It's pronounced
Chi-kof-ski
. Like the composer.”

The break in rhythm momentarily ruffled Fischler. She had loosened her severe librarian's bun today and the ponytail bobbed. “Are your charts based on assumptions, Professor?”

“The charts are based mainly on data, but, yes, like any diagram, they depend on certain hypotheses.”

“And these hypotheses of yours, are they the same as assumptions?”

“You could say so, yes.”

“It doesn't matter what I say, Professor, the jury wants to know what you say.”

“Yes, for these purposes, a hypothesis is the same as an assumption.”

Fischler addressed the witness, but faced the jury. “Is it correct that one assumption behind your charts is that Vaxtek will face no competition in its sales of AV/AS?”

An alarm went off in Seeley's mind. He looked over at Palmieri, whose fingers floated over his keyboard.

“Yes, they make that assumption.”

Fischler's eyes were still on the jury, not the witness. “And why did you make that assumption, Professor?”

“Because the effect of a patent is to exclude competition—”

“Professor, are you aware of any patented drugs that face competition from other patented drugs?”

The bailiff had not raised the lights, and in the pale shadows, the smugness drained out of the witness's expression.

Seeley couldn't believe that Palmieri had failed to prepare his witness for the question.

A detectable tremor in her voice, Chaikovsky said, “Yes, of course.”

“Can you give me an example?”

“Well, there are several patented cholesterol-lowering drugs, called statins, on the market.” She glanced at Palmieri, who nodded gently, and after a moment she, too, understood that Fischler's sole aim was to rattle her. “The difference is that there is no pharmaceutical comparable to AV/AS that doesn't infringe Vaxtek's patent, and that means AV/AS will not have any competition.”