A Patent Lie (28 page)

“And your brother?”

“Sure,” Seeley said. “Call him, too.”

In the taxi to the courthouse, Seeley dialed Judy Pearsall's number. The housekeeper said she was at a museum meeting, but when he told her that it was urgent and involved Lucy, gave him her cell number. Five minutes after he left his number on her voice mail, Judy Pearsall called back, her voice a whisper.

Seeley said, “Tina's faxing you a sketch your husband made of someone. I want you to show it to Lucy. It may be the man she saw talking to him at school.”

“I appreciate your interest, Mr. Seeley”—though hushed, the voice was annoyed, dismissive—“but I just stepped out of a board meeting. We're not even halfway through our agenda.”

“When does Lucy get home from school?”

“Half an hour, forty-five minutes. Really—”

“This is important. You need to be there when she gets home and have her look at the picture. If it's the same man, I want you to call Lieutenant Phan.”

“I don't understand—”

“Lucy may be in danger.”

The phone went silent. “Thank you. I'll leave right now.”

As he snapped the phone shut Seeley tried to remember whether the doorman at their apartment building walked to the bus with Lucy, or merely watched her from his post in the lobby.

TWENTY-FOUR

A trial transcript records every spoken detail of the proceeding. But for the participants, it is the courtroom that accumulates the veneer of incident and memory—the flickering overhead light that needs to be replaced, the edge of counsel's table where the finish has worn off, the clock high above the watercooler that is regularly six minutes fast. This is where the red-haired court reporter and the hoop-earringed court clerk faced each other like bookends and, in the corner next to the jury box, where the bailiff sat virtually motionless for the entire trial. And at 4:30 on a dying autumn afternoon, it was a place that reminded Seeley, coming in through the swinging gate, how irretrievably justice can take a wrong turn.

The bench was empty, but the six remaining jurors were in the box. Seeley recognized most of the faces in the gallery. The lawyers for the investment banks were there, and even a few of the protesters had learned of the jury's return, although apparently not Phil Driscoll. Gail Odum was in the back, scribbling on a notepad. Leonard was in the second row and Barnum was at counsel's table, his back to Palmieri. At the defense table, Fischler turned as Thorpe came through the gate. The clerk called for all to rise and Judge Farnsworth entered the courtroom, robes swirling as she settled in behind the bench. Her sharp glance combed the room, leaving Seeley in no doubt about the outcome of the jury's deliberations.

“Mr. Foreman.” There were to be no preliminaries, no courtesies to the gallery nor congratulations to the jurors. The schoolteacher, a beanpole of a man with a prominent Adam's apple, rose.

“Has the jury reached a verdict?”

“No,Your Honor.” The Adam's apple worked furiously. “No, we have not. We've reached a stalemate. Although we tried, we haven't been able to break it.”

“Has the jury voted?” Farnsworth's voice was pinched.

“Several times, Your Honor.”

She looked directly at Seeley. “And what was the result?”

“The last vote was four in favor of validity, two opposed.”

“And the vote before that?”

“It was the same, Your Honor.”

“And what was the result of the first vote?”

The foreman looked down at a page torn from a legal pad. “Five in favor of validity, one opposed.” He looked at the sheet again. “We didn't vote on infringement. You told us not to unless we agreed that the patent was valid.”

“Thank you, Mr. Foreman.”

Farnsworth methodically canvassed the jury with her eyes. The foreman, uncertain whether the judge was finished with him, hunched over awkwardly, waiting for a signal from her, and when it didn't come, finally took his seat.

Seeley had been watching the foreman, and now when he looked across the double row of downcast faces, he was startled to find the kid staring at him. Gary Sansone's jaw was set, his lips compressed, but at the corners was the smallest possible smile. He had been the first to vote against the patent, the one, Seeley was sure, who had persuaded the second juror. He was thinking that he defeated Seeley. He had read the news story or been told about it. Or maybe it was just that he resented Seeley, Seeley's client, and the client's celebrity scientist, Alan Steinhardt. Whatever the reason, in defeating them he did just what Seeley expected he would do. Seeley felt diminished, using the kid this way, and the knowledge that there was no alternative did nothing to relieve that feeling.

Farnsworth asked whether any of the jurors objected to the foreman's description of their deliberations, and when three or four shook their heads, she said in the same sad voice, “You have failed in your duty here. Your duty was not just to attend the trial and to deliberate among yourselves, but, at the end of this large expenditure of time and resources by the parties, by the taxpayers, and by this court, your duty was to reach a verdict. A trial cannot conclude without a verdict.”

Seeley wondered how much of the reprimand was genuine—this was the judge's first hung jury—and how much was Farnsworth building her legend, and decided it was mostly genuine. He felt a hard look coming from the defense table. It wasn't Thorpe, whose perfectly tailored gray flannel back was to him, but Dusollier. The St. Gall lawyer's expression was bitter around the slash of his mouth. This was not the complacent Swiss lawyer Pearsall had captured in his sketchbook.

“You have disserved the judicial system,” Farnsworth said, “and you have disappointed me. I have no alternative but to declare a mistrial.” She shuffled the papers in front of her. “The jury is discharged.”

This was as much as Seeley hoped for. He had put on too strong a case in the first part of the trial, and Thorpe had mounted too weak a defense, for the jury to vote unanimously against the patent. But, even though the patent survived, the mistrial would mortally weaken it and other companies would attack the patent. The prospect of Vaxtek and St. Gall dividing the market between them had evaporated. Seeley knew that it was grandiose, but for a moment the image passed through his mind of an ocean liner reversing course.

Seeley felt Palmieri's hand grasp his under the table. The grip was strong, and any doubt disappeared about whose side the young partner was on.

When Seeley rose, Barnum was next to him. “We'll win the retrial,” he said.

The response was no more than a reflex, and Warshaw would correct Barnum soon enough. “If there's a retrial, you're going to have to win it honestly, and I don't think you can.”

The court reporter, who had been conferring with the judge, returned to her table. Leonard came through the gate and grabbed Seeley's arm. He was pale and tiny beads of perspiration had formed above his upper lip.

The judge picked up, then set down, the papers in front of her, this time to address the lawyers. “Counsel will see me in chambers. Just the lead lawyers, Mr. Thorpe, Mr. Seeley. Right now!”

Leonard said, “How long are you staying?”

“Just a few days.”

Seeley had already decided to spend time with Lily and then to stop off in New York to see Nick Girard, on his way to Buffalo.

“Mom's coming back from Mexico in four days. Why don't you stay for Thanksgiving?”

Tomorrow there would be margin calls on Leonard's stock purchases. The mistrial would financially destroy him. Yet all he could think of was a family reunion.

Behind the rail, Odum wanted to talk to Seeley.

Seeley said, “I can't stay. I have clients waiting in Buffalo.”

“Please,” Leonard said. “Come see us before you go.”

Farnsworth passed through the doorway to her chambers, and Odum came toward Seeley.

“I have to go, Leonard.”

Thorpe disappeared into the doorway at the back of the courtroom.

Odum said, “Did I get it right?”

“You know I can't talk to you.” The gag order was still in force, but Seeley owed the reporter for what she'd done. He said, “You're an astute legal observer.”

He waited for her smile to be sure she understood the message, then walked away.

When Seeley came into Judge Farnsworth's chambers, he saw at once how rigorously she had controlled herself in the courtroom. Now, with only him and Thorpe as witnesses, the fury poured off her. These two men had hung her jury and destroyed her perfect record.

“I didn't ask the court reporter to join us. Do either of you gentlemen have any objection?”

There was no way they could object.

The judge leaned against a corner of the desk, her back to the glass wall and its panoramic view of the Civic Center and the bay. She gestured for the lawyers to take the two wooden chairs in front of her, a teacher reprimanding errant schoolboys.

“I saw this coming,” she said. “This trial started off course right after your meeting with me, Mr. Seeley.” She looked at Thorpe, not Seeley, as she spoke. “You should have objected, Emil. You shouldn't have allowed it.”

“It wasn't an easy decision, Your Honor. I was trying to be considerate of visiting counsel.” Thorpe wisely didn't add that the judge herself could have refused the meeting.

“Well, your hospitality was misplaced.” Her eyebrows lifted, and with them, it seemed, some of the venom. “You had no idea, of course, what Mr. Seeley was going to tell me at our meeting.”

“There was a question of perjury, I thought.”

“You know, Emil, I have always been a great admirer of your courtroom skills. When I was a young lawyer, I'd come to court on my own time, just to watch you.” Her tone had become almost gentle, but Seeley knew it could turn violent in a second, and when it did, it would be directed at him.

“So you will understand me when I say that I can't begin to imagine why you tried this case the way you did. Your thoughts seemed to be somewhere else.” She glanced at Seeley, then returned to Thorpe. “Sometimes it looked to me like you were actually helping Mr. Seeley make his case. Or was that just part of your hospitality to strangers?”

The fog that had burned off earlier in the day had returned and now sifted through the domes and turrets of the Civic Center. Thorpe's career trying large cases was over and now he was being humbled by a woman who could have been his granddaughter. But, if these thoughts were on his mind, the old lawyer didn't show it. He appeared relaxed in the wooden chair, legs crossed, black socks drooping negligently around his ankles, exposing white flesh.

“This was not an easy case to try, Your Honor. The stipulation of priority placed an extraordinary tactical burden on my client.”

“Then why did your client make the stipulation?”

“Because the facts compelled it. If we contested it at trial, we would have lost credibility with the jury on other issues, like validity, where we had a better shot at winning.” Thorpe looked across at Seeley, his eyes asking for support.

“Well, you're going to get your chance to dispute Vaxtek's priority at the retrial. I'm going to want to see some proofs next time. I'm not going to accept the stipulation.”

Farnsworth was bluffing. She had read Odum's story in the
Chronicle
and she knew that Thorpe's client wouldn't want a retrial that would force both parties to contest Lily's claim to have discovered AV/AS. The judge wants something from Thorpe and his client, Seeley thought, and from me and mine. And she wants Thorpe to understand that she knows about the clients' collusion.

Thorpe saw it, too. “I was sure we'd won when Mr. Seeley cut Dr. Steinhardt's testimony short on direct. Obviously, though, the jurors were impressed. We were lucky to hang the jury.”

“It was only Steinhardt's lies that impressed the jury.” Farnsworth rocked angrily against the desk. “You could have crucified him.”

Where, Seeley thought, was she taking this?

“Do you think Emil was throwing the case, Mr. Seeley?” She shot a narrow, crooked smile at him. “Why would a man of Emil's experience and integrity do such a thing?” Was Farnsworth going to betray the confidence of their ex parte meeting? Seeley knew there was nothing he could do if she did.

She said, “Which do you think Emil is guilty of—collusion or incompetence?”

Now Seeley saw what the judge was doing. She was baiting them, maneuvering the two lawyers into a corner of moral irrelevance where neither could influence the ultimate outcome of the case. That was fine with Seeley so long as the result was that neither Vaxtek nor St. Gall controlled the market for AV/AS. He knew what it would require to get that result, but the decision would have to be Farnsworth's.

When the judge saw that Seeley wasn't going to answer, she said, “I want you gentlemen to inform your clients that they have a choice. They can have a retrial, but I'm going to be the judge and, as I told you, there won't be any stipulations or any other monkey business. And, no, Emil, don't even think about making a motion to recuse me.”

Seeley didn't want a retrial any more than Vaxtek or St. Gall did. With Farnsworth's case calendar as tight as it was, it could be more than a year before the case was retried. In that time the two companies could entirely destroy Lily's credibility and reputation.

“The alternative is for your clients to save my time and the taxpayers' money, and settle this case, enter into a licensing agreement.”

Fog rubbed against the windows and streetlights switched on against the falling dusk all the way to the bay. Seeley felt a surge of energy in the large room. For the first time, Thorpe leaned forward in his chair, eager. “I expect that my client would find that an interesting option.” Wasn't that what Thorpe had implied at lunch at Schroeder's: that the difference between settlement and collusion is no more than a shade of gray?

“The settlement wouldn't have this court's seal of approval,” Farnsworth said. “There would be no judicial stamp of validity.”

That stamp of validity was why the parties had colluded, and Farnsworth knew that. She also evidently knew that she had frightened Thorpe with her promise of a retrial with no stipulations.

Thorpe said, “I will have to bring this to my client, but in all likelihood, they will be agreeable—”

“That's good, Emil, because you're also going to have to persuade them that it's in their best interest to provide in the license agreement for a reasonable royalty—”

“Reasonable, of course. Reasonable.”

“I haven't finished. A reasonable royalty, with the license available on nondiscriminatory terms to any drug company that wants one. No one—not St. Gall, not Vaxtek, not any company—gets a competitive advantage over anyone else.”

Thorpe rose. “You can't do that, Ellen. You can't force an openended license on a patent owner.”

“I'd think that would be the patent owner's concern, Emil, not the infringer's.”

Thorpe saw the trap as soon as it closed on him. Awkwardly he retook his seat.

She looked at Seeley. “As the patent owner's counsel, what do you have to say?”

“I'll present this to my client, Judge.” Farnsworth's proposal was exactly what Seeley wanted. With open licensing, the price of AV/AS could fall to where the people who needed the drug might actually be able to pay for it. He pictured a jubilant Driscoll pumping his arms in victory. But Warshaw would reject these terms, just as St. Gall would. “My client's going to want to know why it should sign a deal that would effectively give away its crown jewels.”