microphone wouldn't pick up his words. “If you and your people gave this some thought, you'd leave off attacking our patent and, when we win our case, you'll put pressure on my client to sell AV/AS at prices that people in places like Africa an afford. That way, you get our drug and you get to save lives, too.”
At the bottom of the plaza, Gail Odum, pencil in hand and notebook open, was talking to one of the protesters, a broad-shouldered woman with jet-black hair that flowed well below her shoulders. At something one of them said, the two suddenly broke into laughter, Odum touching the woman's arm. Did Odum and Lily laugh like that when they talked? Women's secrets. A woman's touch-Seeley could still feel Renata's hand flat against his chest. It came as a surprise to him how lonely he was for that.
ELEVEN
On Monday at 7:40 a.m., while Judge Farnsworth proceeded through her motion calendar, Seeley reviewed the notes for his opening statement. The benches on both sides of the gallery were filled. Palmieri had pointed out to Seeley the lawyers sent by their investment bank clients to evaluate every nuance of the trial for its possible impact on stock prices. Seven years ago, when a federal court ruled that the patent on Prozac was invalid, Eli Lilly shares plummeted more than thirty percent. These lawyers were here to anticipate any such effect on the shares of Vaxtek or St. Gall.
The press was in the back, Gail Odum from the Chronicle dressed today in a severe gray suit. The offhand attire of the six or seven figures talking by the gallery rail identified them as part of the protest group, but Seeley didn't see the tall curly-haired protester he had debated with outside for the evening news. Leonard was in the front row, sunny in a light-colored suit. Warshaw wasn't there, but Seeley hadn't expected him to come.
Seeley was thinking about Dr. Robert Gore and his invention of Gore-Tex when Barnum slid an electric red binder onto counsel's table.
“Very bright,” Seeley said.
“Look inside.” Barnum took his chair at the side of the table.
Palmieri watched as Seeley opened the binder. At the top of the first page, in large type, was the name of juror number seven, Bernard Adelson, the retired schoolteacher, and beneath it and on the three pages that followed, every fact a trial lawyer might want to know about the juror, his family, his medical history, his and his family's every habit and whim. The remaining pages, arranged alphabetically, did the same for the other jurors. Seeley felt an impulse to turn to the back of the binder, where the information on Gary Sansone, the kid, would be, but closed it instead.
“We can't use this.”
“This is valuable material,” Barnum said. “Joel hired a firm to collect it.”
“Jurors don't get paid forty dollars a day to have Warshaw's investigators poke into their private lives.” Seeley's words were louder than he realized, because the judge glanced up from her papers and shot him a cross look.
“Did you investigate me?”
“Of course, we did,” Barnum said.
And still, Seeley thought, you hired me. He handed the binder to Barnum. “Shred everything in here.”
Seeley had been thinking about Robert Gore because the invention of Gore-Tex was one of those flashes of creative genius that made a patent unassailable in court. Gore had been attempting to transform hard Teflon rods into a more pliable material by following the conventional wisdom and stretching the rods slowly. But no matter how much he slowed the process, the brittle rods continued to break. Then Gore somehow got the inspiration to do exactly the opposite, and discovered that by stretching the rods as rapidly as possible he could extend them to ten times their length without breaking, turning them into a soft, flexible material that, when bonded to cloth, produced a fabric perfect for rainwear. If only Steinhardt could convey to the jury that same brilliant eccentricity of discovery, AV/AS, too, might be invulnerable to attack.
The judge's gavel rapped. She had completed the morning's motion calendar. “We'll take a five-minute recess, and then proceed to opening statements in Vaxtek v. St. Gall.” At his small desk next to the jury box, the bailiff, a young Asian in blazer and gray slacks, rose at her signal to bring in the jurors.
Seeley waited for the coughs, murmurs, and shuffling of feet to subside, then walked to the wooden lectern. For the first time that morning, he looked directly at the jurors, one after the other, pausing no more than a moment to engage each pair of eyes. He moved from left to right along the back row, then right to left along the front. He glanced up at the bench. “May it please the court.”
A juror in the front row, the nurse, raised her hand. Farnsworth looked at her seating chart. “Yes, Ms. Ortiz?”
Ms. Ortiz gestured at the bailiff. “The pen he gave me doesn't write.”
That brought laughter from the courtroom and from the judge, who came down the stairs from the bench and handed the woman her own silver pen. She wagged a finger at her. “Now remember, Ms. Ortiz, I want that back when the trial's over.” Her smile took in all the jurors. When she was back in her chair she nodded at Seeley.
“Good morning,” Seeley said. “My name is Michael Seeley. I represent Vaxtek, Incorporated, the patent owner and plaintiff in this lawsuit. Vaxtek is a small biotech company with 220 employees whose headquarters and research labs and production facility”-here Seeley smiled-“whose entire business is located in South San Francisco, just eleven miles from this courtroom. Vaxtek is suing Laboratories St. Gall, the third largest pharmaceutical company in the world, with 110,000 employees and annual sales of $60 billion, for stealing Vaxtek's pioneering invention, AV/AS, the most effective treatment any scientist has yet developed, or any company has yet produced, to prevent the onset of AIDS. Although the defendant is a Swiss company, with headquarters in St. Gall, Switzerland, and facilities around the globe, Vaxtek is seeking justice here, in this courtroom in San Francisco.”
This was Seeley's theory of the case, Pearsall's path to victory: the injustice of letting an overgrown schoolyard bully from outside the neighborhood steal lunch from the frail, brainy kid with glasses; the injustice that every juror would correct if he could. Research into jury behavior showed that, by the end of opening statements, nine of ten jurors have irrevocably decided how they will vote in a case, but Seeley believed that they decided earlier than that. He wanted the jurors to understand at once that he was here to guide them not so much to truth, as to justice. The schoolyard bully had to be punished.
“As Judge Farnsworth explained when she picked you for this jury, this is a patent infringement case. To protect its invention of AV/AS, Vaxtek is relying on a patent granted to it by the United States Patent Office, much as you would rely on the title to your car or the deed to your home to stop someone from stealing your property. Like you, Vaxtek worked hard to acquire this property.”
The kid, Sansone, had on a sport coat today, and a poorly knotted woolen tie. If Seeley read him correctly, Sansone had decided that he was going to be, if not the jury's foreman, then at least its guiding force.
“Now, the U. S. Patent Office doesn't just hand out patents to anyone who shows up and asks for one. It has almost five thousand examiners, every one of them an expert in his or her field, and these examiners analyze each patent application they receive to determine whether the applicant's invention is sufficiently new to justify the grant of a patent. One of these examiners, Dr. Harriet Siler, studied Vaxtek's discovery of AV/AS, and only after carefully comparing AV/AS to all of the earlier discoveries in the field, did Dr. Siler, whose doctorate is in microbiology, conclude that AV/AS was indeed novel and entitled to the patent we are talking about in this trial. As Judge Farnsworth will instruct you at the end of the trial, unless St. Gall can prove that Dr. Siler made an error, you must vote to uphold the patent.”
There was no need for Seeley to explain-Thorpe would certainly do so-that examiners, like Siler, who issue these patents lack the resources available to private lawyers like Boyd McKee who are well paid by their clients to extract from these government employees the broadest possible patents they can.
“Legally, then, Vaxtek has no obligation to prove that its invention meets this standard of novelty. The U. S. Patent Office has already decided that. But because AV/AS is so crucial to Vaxtek's survival as a company, we are going to put on several witnesses who will demonstrate to you why the Patent Office made no mistake, and why this invention is entitled to the fullest protection that American patent law can provide against theft.”
Seeley gave the jurors a preview of the expert witnesses who would testify for Vaxtek, briefly describing the testimony of each. His nerves quickened when he reached Steinhardt. The scientist had returned from Paris on
