Over the course of his practice, Seeley had read the resumes of dozens of scientists-mostly expert witnesses testifying for or against his clients-men and women in their fifties and sixties at the top of careers filled with academic appointments, government consultancies, and awards, including in two cases a Nobel Prize. From the resume Seeley found in the witness file, Lily Warren was at thirty-six on the same path as these other scientists, one of those rare individuals who can set a goal and then pursue it undistracted by physical or emotional limits. When he explained to her on the telephone that he was Vaxtek's lawyer and that there were facts about the discovery of AV/AS he needed to confirm, the pleasantly husky voice at the other end had the measure of authority. Seeley also thought he detected a British accent.
“If you're their lawyer, you know that everyone's decided that Alan Steinhardt got there first. Whatever I did, it doesn't matter.”
Seeley had said only that he wanted to confirm facts about the discovery, not her role in it. “I also know about your visit to Steinhardt's lab.”
“I promised I wouldn't talk about this to anyone.”
If she didn't want to talk, she wouldn't have returned his call. “Did you sign a confidentiality agreement?”
“There's nothing in writing.” She sounded surprised that he didn't know. “They didn't make me sign anything.”
If St. Gall didn't think it was necessary for her to sign a secrecy agreement, that meant the company had some grip on Warren stronger than a lawsuit for breach of contract.
She said, “You're taking over for the lawyer who killed himself.”
“Robert Pearsall. I won't ask you anything he didn't already know.” Seeley would take it one fact at a time. “I know St. Gall conceded that Steinhardt was the first to invent AV/AS.”
“That's what St. Gall and your client agreed.” Seeley imagined a foot tapping with impatience.
“And at the time Steinhardt made his discovery, you had already stopped working for him.”
“ With him. I worked with Alan, not for him. When he left UC to go to Vaxtek, I went to St. Gall.”
“Before St. Gall and Vaxtek made their agreement, did someone from Pearsall's law firm interview you?” Seeley was still a long way from what a St. Gall employee was doing at a competitor's laboratory alone, after hours, but he was certain that Pearsall wouldn't have accepted the stipulation unless he had satisfied himself that no one had coerced Warren.
“Pearsall interviewed me himself.”
“What did you talk about?”
There was a long silence. “You're persistent, aren't you?” The tone wasn't unfriendly, but it wasn't amused, either.
“I just want to know what you told Bob.”
Again, silence. Was she calculating, or had she concluded that it was a mistake to have returned his call?
“I'd prefer not to do this, Dr. Warren, but I could get a subpoena requiring you to testify.”
Seeley would not subpoena Warren. Forced to testify, she could easily say things that would damage his case. But if he didn't know why she went to Steinhardt's lab that night, he also wouldn't know why St. Gall so unexpectedly surrendered its claim to have invented the vaccine first. That lack of knowledge could turn out to be even more damaging. “I promise you, nothing you tell me will go any farther.”
Finally, she said, “How do I know I can trust you?”
“You don't. But if you think about it, you really don't have a choice.” Seeley gave her some time to take that in. “Just tell me what you were doing alone in Steinhardt's lab.”
“I'll meet you, but I won't promise to answer your questions.” She seemed about to say something more, but stopped.
Seeley looked at his watch. It was past noon. He hadn't eaten since an early breakfast, before seeing Judy Pearsall. “Anywhere you like. Just make it someplace we can get lunch.”
She gave him the name of a restaurant in Princeton-by-the-Sea, off the coastal highway south of San Francisco. Seeley wrote it down and hung up.
On his way out, Seeley knocked at the open door of Palmieri's office. The young partner looked up from a thick stack of deposition summaries. There was no sign of the laboratory notebooks that Seeley asked him to review.
“Did you go through Steinhardt's notebooks?”
“I'm almost finished. When do you need them?”
Seeley wondered if he had even looked at them. “Did you find anything?”
“Nothing unusual. The trail of invention is seamless. All the experiments and results look like they're logically connected.”
Palmieri's office had no windows, but the lighting was indirect and the museum-white walls were hung with neatly framed posters. The one Seeley was looking at advertised a benefit concert at a San Francisco arena two years ago and was in the style of a World War II recruiting placard. The colors and lines were classic Norman Rockwell, but the girl, in halter top and tight shorts with a sailor's cap askew on auburn curls, was strictly pinup art. join us the top line read and in the same large letters at the bottom, fight aids.
Seeley said, “How far back did you look?”
“All the way to the beginning, with the basic science he was doing at UC.”
“Was there anything about co-inventors?”
Palmieri shook his head. “Some of the UC entries are signed by Lily Warren, but none of them are concrete enough to qualify for a patent. Steinhardt did all the patentable work at Vaxtek.”
Do your basic research at a university, Seeley thought, but when you're ready to turn it into something you can get a patent on and make some money, move to the private sector. “And after UC, the entries are all Steinhardt's?”
“Every one of them.” Palmieri hesitated and studied Seeley for a long moment before continuing. “There was one strange thing. The UC notebooks look like what you'd expect-lots of mistakes and cross outs. But the ones from when he started at Vaxtek are different.”
“No corrections?”
“They're as buttoned-down as Steinhardt himself. Not a line crossed out, not even a sentence fragment or grammatical error.” Palmieri held his thumb and forefinger the smallest fraction of an inch apart. “Every word in his teeny-weeny handwriting.”
Seeley said, “Maybe his lab methods suddenly improved when he got to Vaxtek. Or-”
“Or,” Palmieri said, “maybe when he didn't have his postdoc looking over his shoulder, his methods changed.”
“You think he kept two sets of books.” Seeley thought of the words below the portrait in Pearsall's sketchbook: What else is A. S. hiding?
Palmieri closed his eyes and pushed back from the desk.
Seeley said, “If they're as perfect as you say they are, he may have kept rough notes as he went along and then transcribed them later.”
“Sure, and dated his discoveries to before he made them.”
If Steinhardt kept two sets of books, and Thorpe found that out, it would open another door for Thorpe to prove fraud on the Patent Office-that Steinhardt's dates of discovery were in fact later than he claimed. It would be the end of Vaxtek's case.
“Are all the entries witnessed?”
“Every one of them.”
The fact that each day's notebook entry was signed not only by Steinhardt but by a witness from his laboratory meant nothing. A scientist of Steinhardt's eminence could, if he wanted, get an assistant to swear that he had watched the great man map the human genome single-handed.
“When can you finish with the notebooks?”
“Hey,” Palmieri's forced a smile, “I have fifteen lawyers and paralegals to get ready for trial. My hands are full just keeping this crew on course.”
Since arriving in San Francisco, Seeley had been so absorbed with his client and the case, and so out of practice at running a large-scale trial, that he failed to do what he automatically did at the start of a case, big or small: meet with his trial team. “I'll ask Tina to get everyone together for a meeting.”
“They'll appreciate that,” Palmieri said. “Right now, you're still the mystery man from back East.” Seeley glanced at his watch. “Let's talk when I get back. I'm meeting with Lily Warren.”
“What for?”
“The usual pretrial diligence.” Seeley tried to make it sound offhand. Then he thought about what they'd just discussed. “If she told St. Gall's lawyers how Steinhardt keeps his notebooks, I don't want to be hearing about it for the first time when Thorpe cross-examines him.”
“Where are you meeting her?”
“Some place down the coast. Princeton-by-the-Sea.” Seeley fumbled in his pocket for the note he had written. “Barbara's something.”
“Barbara's Fish Trap.”
That was it.
“Order the tempura oysters. One bite and you'll never come back.”
Seeley wondered whether that was in fact what the young partner wanted.
Barbara's wasn't a shack, but it was close. Neon tubing in the windows traced the logos of popular beer brands and outlined caricatures of fish, lobster, and crabs. At the far end of the low red building, a window was open for takeout. A man and woman, both in shorts and hugging themselves against the cold, waited for their orders, and a well-dressed Asian woman sat at the single outside table. Behind her, stairs led down to a parking lot and, beyond that, to an intricate network of piers and ramps. Pleasure and fishing boats crowded the harbor, white hulls rocking in the black water.
Seeley went through the door into the restaurant's front room, little more than a screened-in porch with electric coiled heaters hanging from the ceiling against the chill, and from there into the dining room. Couples and families were at the oilcloth-covered tables. There were a few tourists, but most of the customers, in unfashionable jeans and flannels, appeared to be locals. None looked like a thirty-six-year-old immunologist named Lily Warren. Seeley went back outside to wait. The couple at the takeout window had gone and the Asian woman came toward him.
“Mr. Seeley?” It was the assured voice from the telephone, and she smiled tentatively when he nodded. “You're embarrassed. Don't be. People are always surprised. Warren's not a very Chinese name is it?”
She was slender and slim-hipped, but buxom in a way that made Seeley think of the recruiting poster in Palmieri's office. What most struck Seeley was the erect dancer's posture. Care had gone into Lily Warren's makeup, and her hand, when she extended it, was marble smooth and perfectly manicured.
They went into the restaurant, and a waitress led them to a corner table, leaving them with menus. There was the faintest hint of something savory in the air, less a fragrance than a memory for Seeley of some fine meals in the past. The window looked out onto a small patch of sand and, beyond that, the Pacific. At the next table, a sheriff's deputy in sharply pressed khakis was having a solitary lunch.
“Thank you for meeting me,” Seeley said. “Can we talk about why you went to see Alan Steinhardt that night?”
Warren said, “Let's look at the menu.” She pushed his toward him and studied her own. “Everything here is good. The crab's better than anything you can get in San Francisco.” She saw that Seeley wasn't reading the menu. “Why are you smiling?”
“I was hoping that if you met me, you'd see you could trust me.”
“And maybe I will, after I get to know you. The fact that someone is direct doesn't mean he deserves to be trusted.”
“But you came anyway.”
“You told me you'd get a subpoena if I didn't.”
Seeley said, “That's not what's worrying you. There's something you want to talk about.”
She put the menu down. “I don't understand why you're making such a big deal about my going to see Alan at his lab. I knew him. I already told you, I worked with him at UC.” When Seeley frowned, she said, “I know people think he's cold-have you met him?”
Seeley nodded.
“In fact, Alan is a kind man. Warm, too, in his own way. I went to see him because he offered to help me professionally.”
The waitress returned. Warren ordered a crab salad and Seeley, remembering Palmieri's suggestion, ordered the tempura oysters. When the waitress asked about drinks, he glanced at the decorative rows of imported and domestic beers along one wall and told her water would be fine.
“So you went there at night, after the building was closed.”
“It was the only time I had free. I was working full-time at St. Gall. There was nothing suspicious about it. Alan met me at the front door and let me in.”
“So he could help you professionally.” Seeley remembered Steinhardt telling him about her crush on him, but Warren didn't look like a woman who pursued men.
“The AIDS research community isn't very big, especially vaccine research.” Warren was as erect sitting as she was standing, her posture accentuated by the way she thrust out her chin as she talked. In a face with conventional Asian features, one was not: a delicately hooked nose that made an otherwise pretty face achingly lovely.
“Alan knew what the bureaucracy was like at St. Gall. He knew they weren't going to give a young scientist, particularly a woman, credit for her work. So he offered to go over our experiments together at UC and co-author some papers with me.”
Seeley didn't doubt that Steinhardt could be charming, or that he was capable of concealing his motives, whatever they were, behind a mask of amiability. But after more than twenty years litigating patent cases, it was inconceivable to him that two people working on directly competing research projects could visit after hours without one planning to extract information from the other, particularly when the two already knew each other well, and one was famous and the other was ambitious for fame.
She continued on about Steinhardt and the exciting work that they had done together at UC. There was an energy in the air as she talked about her science. It was as if someone had struck a tuning fork and the vibrations hadn't ceased.
The waitress brought their food, Seeley's a heaped pile of crisp-battered Pacific oysters, each as fat as a baby's fist. A mound of creamy coleslaw was on the side. Warren started on her salad, and he bit into an oyster. Palmieri was right. Seeley had not tasted anything like this before. First, there was the sensation of the grainy, almost buttery crust, and then the sudden astonishment of the oyster's intense flavor exploding and liquefying in his mouth like the essence of the ocean itself. There was a genius at work in the kitchen, someone who knew the secrets of frying seafood.
Seeley looked around the room with its corny nautical decorations hanging from the ceiling and walls. Behind the cashier's stand was a small open kitchen, with the cooks' busy white backs. Every fifteen seconds the booming of a foghorn punctuated the background buzz of conversation.
While they ate, Lily, with Seeley's encouragement, talked about herself. She grew up in China, came to the United States on a student visa for graduate and postgraduate work, married Warren, a Canadian software engineer living in the United States, and ended the marriage two years later when she failed her husband's expectations of a dutiful Asian wife and refused to give up her career to have children. By this time, she had already started publishing articles in immunology under her married name, and so continued using it after the divorce. When Steinhardt left UC for Vaxtek, he offered her a position in his new lab, but she went to St. Gall instead, converting her F-1 student visa to an H-1.
Unlike other lawyers, Seeley took little pleasure in recounting trial stories, but when Lily asked him about patent cases he'd worked on, she seemed genuinely inquisitive. He was telling her about a case seven years ago, involving a drug-coated stent that had so revolutionized cardiovascular surgery that demand from surgeons across the country overwhelmed his client's capacity to supply the market, when a shrewd light went on in her eyes.
“I bet that instead of trying to shut down the infringers, you just asked the court to make them pay a license fee.”
Her quickness stunned him. “How did you know?”
“Greed is an unattractive quality. Your client couldn't supply the market by itself. Patients needed the stent. It would have been bad strategy to ask for more.”
“If we said it was all or nothing, the court probably would have struck down the patent and given us nothing.” For the first time in a long time, Seeley was enjoying a conversation.
“That's the difference between science and law,” Lily said. “In law you can divide things up so everyone gets something. In scientific research there's only one winner and lots of losers.”
The way she said the word told Seeley that Lily would not accept being one of the losers.
“Had a lawyer ever done that in a patent case-not try to shut down his competition?”
Seeley shook his head. “Sometimes the hardest part of a case is convincing the client to do the right thing.”
“And you're always so confident about knowing the right thing to do?”
When Seeley returned her smile he realized that he was flirting with her. “In trials, sure.”
The waitress cleared away their plates and flipped her pad open for dessert orders. “The Snickers bar pie is one of our specialities.” Lily shook her head and said tea would be fine. Seeley asked for coffee.
“You enjoy eating, don't you?”
“Sure,” Seeley said, “when the food's as good as this.”
“Do you like dim sum?”
When Seeley nodded, she said, “In China people have it for breakfast or lunch. I like it for dinner. And mine's better than what you can get in a restaurant.”
Seeley didn't know where this was going.
“Your reflexes outside the courtroom could be better. That was a dinner invitation.”
“Just like that?”
“Why not?”
“I'm going to trial in three days.”
“You still have to eat dinner. My apartment's in Half Moon Bay-it's only forty minutes from the city.”
“Why?”
“I already told you. If I'm going to talk to you, I need to know you better.”
“When you left UC, why didn't you go to Vaxtek with Steinhardt?”
“How about next Tuesday?” She had taken a leather-bound calendar from her purse.
“I'd like that. But finish telling me about you and Steinhardt.” Tell me, Seeley thought, what your feelings were for this arrogant peacock.
“When he went to Vaxtek I'd already worked with him for three years. It seemed like a good time for me to move to a different lab.”
“Did you have him over for dim sum dinners?”
The porcelain cheeks colored, and Seeley wondered how seriously he had overstepped.
But her voice was even; she seemed neither angry nor embarrassed. “I had a relationship with Alan, if that's what you mean.”
Either Steinhardt was lying when he said that her crush was unrequited or Lily was. Seeley decided to believe her, even though he couldn't picture her in Steinhardt's arms nor him in hers.
She read his reaction as surprise. “Which stereotype are you sticking me with-cool, dispassionate scientist or chaste Chinese lady?”
“Neither. It's just that-”
She laughed. “I like discovering things, finding out what goes on behind the professional front that people wear. Alan is a very interesting man, and even though it didn't last long, I'm glad we had a relationship.” This time she enunciated the word carefully, as if it might explode. She looked directly at Seeley. “You're an interesting man, too. Even enigmatic.”
“How so?”
“You come on tough and in control, but when the waitress asked you what you wanted to drink, the way you looked at that row of beer bottles, you could have been a teenager mooning over a pretty girl.”
Seeley reminded himself to be more careful the next time he took a scientist to lunch.
“I can understand your leaving Steinhardt's lab, but why'd you go to a place the size of St. Gall? I'd think you'd be afraid you'd get lost there.”
She studied Seeley and waited a moment before she spoke. “That's what Alan said. But it was either that or get lost in his shadow. Alan's not the kind of person who shares credit.”
This made more sense to Seeley than what she said before. “But when, out of nowhere, he tells you he wants to publish articles with you, you go to his lab to see him.”
“I believed him. People change.”
Sure they do, Seeley thought. In the case of people like Steinhardt they get worse.
“Alan was right about St. Gall not giving me the recognition I deserved.”
“They were ready to have you testify in court that you invented AV/AS.”
“That was only after Vaxtek sued them, and it was their lawyer's idea. They thought a woman scientist would play well to a San Francisco jury.”
Emil Thorpe would know exactly what worked with a San Francisco jury. “So, before anyone knew there would be a lawsuit, you went to see Steinhardt and he left you alone in his lab-”
“He had to go to his office to get the UC notebooks.”
“And a security guard found you.”
“It wasn't a big deal. As soon as Alan came back he told the guard I was with him.”
“But the guard wrote in his report that you were there alone.”
She saw where Seeley's questions were going: that Steinhardt had set her up, creating an appearance of industrial espionage, with her as the spy. “No one would have known I was there if one of the lawyers in your office hadn't connected the guard's log and the witness list.”
“And St. Gall dropped you as a witness because they thought you stole Vaxtek's secrets.”
“Isn't that why you're asking all these questions?”
“Why did St. Gall make you promise not to talk about what happened?” “They fired me, but they got me a job at a small start-up they're financing in Half Moon Bay.”
“Are you happy there?”
“I'm in a holding pattern. It's mostly busywork. St. Gall wants to keep their eye on me until the trial is over.”
“You could get a job anywhere. Dozens of companies would hire you.”
“Not without a visa. All St. Gall has to do is call Immigration and I lose my H-1.”
That was the hold that St. Gall had on Lily. Deportation. It was why they didn't need her signature on a secrecy agreement.
“You're a citizen of this country,” she said. “You have no idea what it's like to live with the constant threat that, if you look at somebody the wrong way, you get deported.”
“Is your family still in China?” If family was neither an attraction nor a consolation for Seeley, it might be for Lily.
“My parents are in their sixties. They live in Wuhan.”
Seeley was certain she was going to tell him more, but she glanced quickly at a mirror in her purse and, after removing a business card, snapped the bag shut. “Have you ever done science, Michael?”
“Football practice got in the way of biology lab when I was in college.”
“Then you have no idea how different my world is from yours.” While she spoke, she wrote on the back of the card. “Whatever else is wrong with your country, America is still the best place in the world to do science. It's one of the few places where a woman can hope to get recognized for what she does.”
The dining room had emptied. A lone waitress leaned against the cash register. Warren handed him the business card, on which she had written her address and Tuesday, 7:30.
Seeley said, “You must want something very much to risk having St. Gall see you with me.”
She sipped her tea. “You're afraid that something is going to come out in court and ruin your case.”
Seeley nodded, once again admiring how quick she was. “And you've told me what you're afraid of. So why don't you tell me what it is you want?”
“Look, Michael, we each have our own reasons, but the way things are arranged, St. Gall's not going to say anything, in court or out, and I'm not, either. So this secret you think I'm hiding is not going to be a problem for you.”
Her logic was as impeccable as she was. But it was lawyer's logic, and for Seeley that had never been enough.
Paul Goldstein
A Patent Lie