“Of course I did.” He sat up straighter. “It's standard procedure.”
“Was there anything to indicate that Steinhardt wasn't the sole inventor?”
“He's the only one who signed off on the entries.”
A bench scientist's lab notebooks should be as precise and complete as a ship's log. If some of the hardest- fought patent battles are over which of two competing inventors completed the invention first, it is the laboratory notebooks, witnessed by others in the lab who understood the invention, that provide the indelible fingerprints of priority.
Seeley said, “When was the last time you wrote an application for a drug patent that named only one inventor?”
Mousetraps have sole inventors, as do windshield wipers and railroad couplers. But pharmaceutical inventions are team efforts. Seeley had reviewed dozens of other patents to see how close their subject matter was to AV/AS, and none listed fewer than three inventors.
McKee said, “When was the last time you wrote a patent application?”
The accent and attitude were pure New York-Brooklyn, Seeley guessed. McKee knew as well as he did that trial lawyers litigate patents, they don't apply for them. “Did you interview any of Steinhardt's witnesses?”
McKee swiped a hand over his shaved head as if he were brushing back a lock of hair. He was sitting erect now and the other hand was a fist in his lap. “Steinhardt said I didn't have to. He said he was the one signing the inventorship oath, so it wasn't my problem. Even if I pushed him on it, he'd never let me talk to his witnesses.”
“Vaxtek's your client, not Steinhardt.” Seeley made no effort to hide his anger. “You realize, because you let Steinhardt intimidate you, St. Gall can destroy our inventorship claim.”
“You try talking to Steinhardt.”
“He's in Paris. That's why I'm talking to you.”
Business clients will roll right over their lawyers anytime it suits their purposes. But evidently no one had taught McKee that the lawyer's first duty is not to let that happen.
McKee shifted in the chair and worked his jaw. “You know, there's a difference between patents on monoclonal antibodies and patents on garbage trucks.”
“What's that supposed to mean?”
“This isn't Brigadier Dumpster.”
Seeley hadn't thought about Brigadier Dumpster Corp. v. DeSimone and Sons, Inc. for years. It was the first patent case he had tried after making partner at his old Buffalo law firm, and remarkably the case had made its way into two or three law school texts. Brigadier, a Decatur, Illinois, manufacturer of truck bodies and rigs, owned a patent on the front-end loader that garbage trucks use to lift dumpsters over the truck cab to empty their contents into the hopper in the rear. Brigadier had sued its way around the country, bullying payments from manufacturers that lacked the money or the will to fight its patent in court. The DeSimones, who owned a foundry and fabrication plant in Cheektowaga, outside of Buffalo, had little cash to defend a lawsuit, but when Brigadier sued them for copying their rig, they refused to settle and hired Seeley to defend them.
McKee said, “The guy who taught me patents at NYU thought your defense was brilliant.”
It was clear from McKee's tone that he didn't agree.
“And you?”
“Too much flash, not enough engineering.”
The DeSimones needed more than engineering to win their case. Vincent DeSimone, the older of the two sons, stood with Seeley in the company's parking lot in a driving sleet storm, discussing the litigation to come. The two were watching the company's foreman test a DeSimone rig before it was crated for delivery. Vincent shook his head in disgust at the thought that the government had granted a patent to a device as simple as the Brigadier lift. He said, “My three-year-old could've dreamed one of these up with his Tinkertoys.”
Seeley watched the rig's two robot-like arms swing out over the cab, grab a bin, jerk it up, then toss it in a single, smooth arc backward over the cab. “A catapult,” he said to Vincent.
“A what?”
“The rig is nothing more than a catapult.”
After that, preparation for trial was straightforward. Seeley paged through histories of ancient siege weaponry until he found a diagram for a thirteenth-century advance on the catapult, called a trebuchet, that bore a striking resemblance to the Brigadier rig. He hired a local cabinetmaker to build tabletop operating models of both the trebuchet and the rig. “Just the rig,” Seeley told the man. “I don't want the jury to see the truck chassis or body. And make the two models exactly the same size.”
“Do you want me to paint them?”
“Sure,” Seeley said. “Paint them whatever color Brigadier paints their rigs.”
Three months later, Seeley's entire case consisted of demonstrating to the jury how the structure and operation of the Brigadier rig was virtually identical to that of its medieval predecessor. It took the jurors less than an hour to return with a verdict that the Brigadier patent was invalid. Most of that time they spent composing a note to the judge asking whether there was some way he could order Brigadier to reimburse the DeSimones for their attorney's fees and the expense of building the two models.
Seeley said to McKee, “Are there any catapults out there that St. Gall's going to surprise us with?”
Vaxtek wanted the broadest patent it could get, and McKee had accomplished that by referring in his patent application to only a few prior inventions. But that meant St. Gall could in court come up with another invention-a catapult-that, even though it was not exactly like AV/AS, would be close enough that a jury would vote against the patent.
McKee shrugged. “Steinhardt told me what inventions to cite.”
“And you didn't do your own research to see if there were others?”
“Hey, back off. My instructions were to limit myself to what Steinhardt gave me.”
“That's what Steinhardt told you?”
“No, the chief medical guy. Leonard Seeley.”
It was odd hearing a stranger refer to his brother by name.
A sly smile spread across McKee's face. “You two are related.”
Seeley said, “When was the last time a company's head of research told you what prior art to cite?”
“When was the last time you tried a pharma case? All the drug companies have committees that review the R amp;D and decide if they want broad patents or narrow ones.”
Seeley said, “But, once a company decides what it wants, did you ever have the company's head of research tell you how much prior art to cite?”
McKee looked unhappy. “No.”
“And because you didn't cite the prior art, St. Gall can argue there was fraud on the Patent Office. The court could invalidate the patent.”
Seeley thought about Leonard and his deceptions. It's one thing to lie that you clipped stories about your brother from legal newspapers. But to bully a young lawyer into deceiving the U. S. Patent Office was dangerously wrong and, by not telling Seeley what he had done, Leonard had exposed him to judicial sanctions for perpetuating that fraud in court. The equation, he knew, was lopsided: when Seeley held facts back from Leonard it was to protect him, and when Leonard held facts back it was to protect himself. He and his brother had that in common- they were both protecting Leonard Seeley.
McKee said, “St. Gall's complaint didn't say anything about fraud.”
“But they can make the argument at trial, and I don't want to be blindsided if they do. Make me a list of all the prior art you would have cited if you hadn't listened to Steinhardt or Leonard Seeley.”
“I've got a lot on my desk.”
“I want the references by the end of the day.”
McKee rocked back on the balls of his feet, chest out, jaw working. “You're not even a partner here.”
Seeley didn't get up. “I'm trying a case for a client of this law firm, and I'm not going to lose it because one of the firm's lawyers was too lazy or insecure to stand up to a client and tell the client that what it was asking him to do was wrong.”
“They would have fired us.”
“You've got it backward, Boyd. You should have fired them. If you can't stand up to a client, you might as
