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.”
“You're being unusually diplomatic, Counselor. They're going to want to know what leverage Judge Farnsworth has on them. Tell your client that the U. S. attorney for the Northern District of California is in this courthouse every day. If I thought there was some kind of collusion between your client and Mr. Thorpe's, there's no reason, is there, why I shouldn't have a talk with the U. S. attorney about a criminal antitrust violation?” Her eyes twinkled. She was enjoying herself. “And I'm not looking for a free license, just a reasonable one. Vaxtek will in time make back its investment, and then some. Your client-and Mr. Thorpe's client-just won't get the monopoly profits they were hoping for.”
Thorpe was out of his chair again, and pacing the chambers. “This is a decision that has to be made in Switzerland-”
“But they're going to listen to you,” Farnsworth said. “They'd be fools not to.”
Thorpe said, “I'd advise them to take the trial.”
“What about you, Mr. Seeley. How are you going to advise your client?”
“I'd advise them to take the license. There won't be a public record. It wouldn't be in the news for more than a day.” And, he thought, both sides would do everything they could to appease Lily. “Their stock might even recover.”
Thorpe was at the far end of the chambers, studying the bindings on the judge's bookshelf, but he heard Seeley and Farnsworth. He was smart and, for all his objections, he was going to recommend that his client take the license.
“Let me know your clients' decision by five p.m. Friday.”
Thorpe coughed to clear his throat, as if he were about to make a pronouncement, but said only, “Of course, Your Honor.”
Other than a few late courthouse workers leaving for the day, the plaza was empty. The press, if they had been there, were gone, including Odum, the solitary, earnest reporter still after her story. Late-autumn twilight mixed with the fog and the distant drone of automobiles heading home on the freeway. The fragrance of roasting coffee was again in the air and, improbably, the winey scent of overripe apples.
Thorpe said to Seeley, “You've been practicing law how long-twenty, twenty-five years?” He didn't wait for an answer. “I know it's trite, but the longer you practice, the easier it is to lose sight of the principles that brought you into the profession.”
Seeley imagined Thorpe as a skinny law student, in a fever for truth and justice as he rushed from class to class. “What are you getting at?”
“Wherever he thought the equities lay, Jake Ehrlich would never have tried to subvert his own client's case.”
“If that's true-and I don't know that it is-it's only because he never had an adversary who tried to make his own case for him.”
When they reached the edge of the plaza, Seeley stopped. The gray creased face turned to him. “You mean our little talk at lunch? I was speaking entirely hypothetically-but of course, I told you that. What Ellen said about a collusive lawsuit? I wouldn't have any part of one!” The crafty eyes dulled then flashed. “Would you?”
Thorpe's feint was no surprise. This was a man accustomed to neither confessions nor amends. Nor would the police catch him up in the investigation of Pearsall's death. If Lucy Pearsall could identify Dusollier, that might make the connection between the collusive lawsuit and Pearsall's death, but only if Lieutenant Phan chose to pursue it. And, even if he did, Thorpe would have built an impenetrable wall between himself and his client's wrongdoing.
Seeley said, “You should never have done this.”
Thorpe's expression turned contrite, then belligerent, with an actor's ease. “How could I forget-you're the lawyer who never makes a mistake.”
To Seeley's astonishment, he felt a smile taking form. “I make mistakes all the time,” he said. “One is forgetting that there are people walking the streets, esteemed professionals, who can commit the most monstrous acts, acts that would shame any human soul, yet not suffer a moment's regret.”
Such an intense, cold hatred consumed Thorpe's features that for an instant, Seeley shivered. Then the lawyer recovered, returning Seeley's smile with one of his own. “Goodbye, Michael. You have been a
… splendid adversary.”
Seeley watched the lawyer's gray back disappear into the crowd of office workers and tourists thronging toward Market Street. He had no idea what attracted American tourists to San Francisco, other than the receding but carefully burnished corners and echoes of a fabled past. But he now understood what European travelers found here-an indifferent, heartbreaking beauty, one that casually wrapped the deepest cruelties in its embrace-and why they thought of it as America's most European city.
