A Patent Lie (4 page)

“And what's Emil Thorpe's ‘path to victory’ going to be?” Thorpe, St. Gall's lead trial counsel, was a legend of the San Francisco trial bar and, for major cases like this one, was at or near the top of the list of preferred counsel for any company that could afford him. Seeley guessed that Vaxtek would have hired Thorpe if St. Gall didn't already have him on retainer.

“Bob and I never got the chance to talk about it.” Palmieri was at the conference-room door, looking down the corridor.

Seeley wondered if he was like this with everyone, or reserved his detachment for interlopers.

“You're running this case,” Palmieri said, “so you get to choose your second chair. If you want to work with someone else, that's fine with me. I'll do everything I can to support him.”

Seeley had reservations about Palmieri, but he knew that if he hesitated for a moment he would lose him. “You're the one I want sitting next to me at counsel's table.”

“Thanks”—Palmieri turned back into the room—“but you'll have to talk to the client about my being at counsel's table.”

“Why?”

“Ask Ed Barnum when you see him.”

As Vaxtek's general counsel, Barnum was the person Seeley was supposed to answer to.

“It doesn't matter what Barnum says. I want you there.”

“Just ask him.” Palmieri started out the door.

“Have you taken care of the pro hac papers?” Because Seeley wasn't a member of the California bar he would have to be admitted, just for this trial, pro hac vice.

“One of the paralegals is taking care of it.”

“Good. If I don't get admitted, you'll be sitting at counsel's table all by yourself.”

For the first time since he met him, Palmieri smiled.

Seeley checked his watch. Vaxtek was in South San Francisco, a half-hour drive from downtown. On his way out, he stopped at Tina's desk. She wasn't there, but had left a message slip for him with Judy Pearsall's address and phone number on it.

Lawyers occupy forty-story office towers to inscribe their presence on the skyline. Scientists stay closer to the ground. Vaxtek's building in South San Francisco was two floors of glass and polished stone, one of dozens of such façades along the commercial boulevard that exited from the freeway. Signs on some of the buildings indicated biotech companies, but others were more mundane—a restaurant-supply firm, a marble-and-granite works, outlet stores for several big retail fashion brands. A temp agency was next door to Vaxtek. For a long stretch of boulevard, the grass was overgrown and clogged with windblown debris, but the lawn in front of Vaxtek's building was neatly trimmed. Low hedgerows separated the parking lot from the street.

Seeley signed in at the security desk and let the receptionist clip a laminated visitor's pass to his lapel. The sparely furnished lobby could have been an airport waiting area with its empty walls and industrial gray carpeting. A slender potted tree guarded two chairs and the carpet gave off a chemical smell as if it had been recently installed. There was no movement in the broad corridor on the other side of the glass double doors leading into the building's interior. After a while, an attractive middle-aged woman in jeans and a turtleneck sweater came through the doors to take Seeley to Leonard's office.

Seeley had heard somewhere that cramped quarters were common in biotech, even for senior executives, and Leonard's office was no larger than Seeley's in the Ellicott Square Building. The desk was a slab of blond wood, part of a combination cabinet-bookshelf. The desktop was empty and the bookshelf nearly so. A beefy man in chinos and polo shirt had propped himself against the desk's outer edge, facing the open door. His bulk partially obscured Leonard, who was sitting behind the desk. There was a tension in the room, as if the two had been arguing.

“Ed Barnum,” Leonard said, introducing them. “Michael Seeley.”

Barnum studied Seeley unhurriedly through aviator glasses and said nothing while Seeley walked around the office. The photographs were mostly of Leonard on vacation, posed against a ski slope or beaming under a baseball cap on a fishing charter. A woman was with him in the photographs. The view out the wall-sized window was of a succession of mud-brown hills, relieved in their monotony only by a bright ribbon of cheap-looking houses.

Leonard started to speak, but Barnum said, “Ray Crosetto sends his regards. So does Sandy Eyring.” The two were well-known trial lawyers, Crosetto from Los Angeles and Eyring from Salt Lake City. Seeley had litigated against them in a couple of long trials before he left his New York firm. This was Barnum's way of letting Seeley know that he had asked around before agreeing to take him on as his new trial counsel.

“They said you're a good lawyer, but that you have an independent streak. I don't know if Leonard impressed on you how important this case is to our company.”

“All my cases are important.”

Barnum moved so that Seeley could no longer see Leonard's eyes. “I don't think you understand. St. Gall already has its product on the market. If we lose this patent the generics will flood the market with knockoffs inside of a year. We've sunk almost half a billion dollars into AV/AS. If you lose this case, we'll never see a dime of it.”

From behind Barnum, Leonard said, “We have other drugs in the pipeline, Mike, but AV/AS is why Wall Street loves us.”

Barnum's large pink face was just inches from Seeley's. “If you lose our case—”

“I'm not planning on losing your case,” Seeley said. “But you're the ones who came looking for me to run this trial. If you changed your mind, now's the time to tell me.”

Barnum paced the small room. He had a sluggish way of responding, and Seeley didn't know if the silence was deliberate or if he was just slow.

Leonard leaned back in his chair. “What Ed's saying is, we're betting the company on this case. If—”

Barnum said, “How does the case look to you?”

“Bob Pearsall did a good job putting it together.”

“That's why I hired him. I don't want any loose ends.”

When Seeley didn't respond, Leonard said, “There aren't any loose ends, are there?”

“There's Lily Warren.”

Annoyance crossed Barnum's face. “Who?”

Leonard said, “The woman who thinks she invented AV/AS.”

“Oh,” Barnum said. “The crackpot.”

It was what Palmieri had said, but Seeley thought it was more likely that the description came from Barnum.

Leonard said, “Why should that be a loose end?”

Seeley said, “Even if she's not on St. Gall's witness list, she could be a problem.”

“There won't be a problem.” Barnum's impassive face moved in front of Seeley so that he again lost eye contact with his brother. “St. Gall already stipulated that Alan Steinhardt invented the vaccine first.”

The information stunned Seeley. When two companies flog their researchers around the clock to come up with a cure for the same disease, it is no accident when they arrive at virtually identical drugs, sometimes within days of each other. Often the margin of difference is so thin that, outside a courtroom, no one can say for sure which team produced the invention first. Alexander Graham Bell's competitor, Elisha Gray, got to the patent office on the same day as Bell, forcing Bell to prove that he invented the telephone first. And, like Bell, whoever reaches the finish line first not only gets the prize they were all competing for—a patent—but, with that patent, the power to stop anyone else, including the runner-up, from producing or selling the invention.

For St. Gall to concede priority was no less than for a country to cede half its territory to a despised foe, and without a shot being fired. There were still important issues to be litigated at trial, among them, whether the discovery of AV/AS was sufficiently novel to deserve a patent. But for St. Gall to stipulate that Vaxtek won the race even before the trial began was startling. It also bothered Seeley that, if he hadn't asked about Warren, Barnum might never have told him about the stipulation.

“Why did they concede priority?”

“Probably,” Barnum said, “because we were first.”

“If you were first, why are they already in the market, and you're just starting phase-three trials?”

“Resources,” Leonard said. “They got a late start, but their money and connections got them through the FDA in half the time we could.”

That still didn't explain St. Gall's stipulation of priority—particularly if they thought one of their employees made the discovery first. “What about Warren?”

“I told you,” Barnum said, “she's a crackpot.”

St. Gall's concession that Steinhardt invented AV/AS first would explain why only two lawyers, Thorpe for St. Gall and Pearsall for Vaxtek, were present when Thorpe deposed Steinhardt. For a witness this important, the deposition room would usually be crowded with lawyers and experts from both sides to advise the two principal lawyers as Thorpe pressed the scientist to pin down the exact moment that he completed the invention.

Barnum said, “Is that your only loose end?”

“So far,” Seeley said. “I still have two more shelves of depositions to read.”

“Did you get your pro hac motion granted?”

“Chris Palmieri's taking care of it.”

Barnum gave him a doubtful look. “What do you think of him—Palmieri?”

“Why?” Seeley remembered Palmieri's uncertainty about joining him at counsel's table.

Barnum said, “It didn't seem to you that he's maybe . . . a little light in the loafers?”

As he spoke, Barnum moved and Seeley caught a warning look from Leonard. It took him a moment to understand what was on Barnum's mind. The trim build, the close-cropped hair, the pink pocket handkerchief.

Seeley said, “That's none of my business.”

“If you want to win this case, you'll make it your business. The jury's impression of Vaxtek, what kind of company we are, is what they see when they look at counsel's table. I don't want them to see a queer sitting there.”

Seeley decided not to ask Barnum how many jury cases he'd tried. “If you count up who a lot of the AIDS victims are in San Francisco, I'd think having him at counsel's table would be an advantage.” It was cheap tactical point that Seeley regretted as soon as he made it.

“There's a big difference between the San Francisco you read about in the newspapers and the San Francisco that sits on a federal jury.”

Leonard had come around to the front of his desk. “Mike has a great track record with juries. I'm sure he'll pick his jurors carefully.”

“Not before Ellen Farnsworth, he won't.” Barnum's eyes hadn't moved from Seeley's. “She runs her own voir dire. She picks the jury.”

Seeley reminded himself that he hadn't yet done his research on District Judge Ellen Farnsworth, who would preside at the trial.

Seeley said, “Palmieri's the only one on the team who knows where the evidence is. He has all the exhibits and depositions indexed and cross-indexed on his laptop. If he's not next to me, I can't cross-examine witnesses.”

“Get someone else on the team up to speed.”

“No. I already told Palmieri it's going to be him.”

Barnum turned to Leonard. “Your brother's a real piece of work.”

“I already told you, if you don't want me to run your trial, I can be on a plane tonight.”

“I'm going to be up there with you at counsel's table.”

Barnum would use his bulk, Seeley thought, to hide Palmieri from the jury. “That's fine,” Seeley said. “So long as there's room.”

“I might as well tell you now, I'm not like other GC's you've worked for. They see a trial coming and they run the other way. My first job out of law school was in the San Mateo County DA's office. I like going to trial and, when I get there, I keep a tight grip on the wheel.”

Seeley said, “I'm sure you've taken the company's trial work to a new level.”

After Barnum left, Leonard said, “You haven't lost it, have you? Your talent for pissing off a complete stranger.”

“My only interest is in winning this case. But I'm not going to let your general counsel abuse my team.”

Leonard unfolded and buttoned a sleeve of his sport shirt. “Ed's okay. Give him some room.” He buttoned the other sleeve. “Steinhardt's waiting for you. I'll take you to his office.”

Seeley followed Leonard down a carpeted corridor lined with rows of cubicles, only a few of them occupied.

“Once we scale up and go to market, every one of these desks is going to be busy with marketing and backup.”

They crossed a wide corridor, and linoleum tile replaced the carpeting.

“What you told Ed, that there aren't any holes in the case—you're sure?”

Seeley said, “There's no case that isn't a crapshoot. Things come up. But, as far as I can see, you're in good shape.”

Leonard put a hand on Seeley's arm, pleased. “We can crack open a bottle of champagne tonight.”

Leonard's dismay when Seeley told him that he'd decided to stay at a hotel and not at his house in Atherton left Seeley no choice but to accept his brother's dinner invitation.

The walk to Steinhardt's office took them past laboratories that looked little different from the high-school labs at St. Boniface, where he and Leonard were students thirty years ago. There were more plastic containers than Seeley remembered, and there hadn't been laptops on the scarred black lab counters, but the shelves lined with reagent bottles were the same, as were the spaghetti of tubing that looped down from fat-globed flasks into glass beakers and the neatly labeled drawers, the refrigerator posted with black-and-yellow warnings, and the exhaust hood under which the class clown manufactured his stink bombs. White lab coats hung from hooks along the walls. Somehow science had made all these extraordinary leaps using little more than a high-school junior's lab tools.

Seeley said, “How closely did you monitor Steinhardt's work?”

Leonard heard the concern behind the question. “You just told me there weren't any loose ends.” His good humor had evaporated.

“I want to make sure Warren isn't a problem.”

Leonard took Seeley's arm and steered him around a jumbo-size doormat at the entrance to one of the labs. The white vinyl mat looked as sticky as flypaper and was clotted with shoe prints. “Real high tech,” Leonard said. “It's to get the crud off your shoes when you go into the lab.”