A Patent Lie by Paul Goldstein

sides, looking as exhausted by the effort if he had just finished a triathlon. In another minute, Seeley thought, he's going to put his feet up on the desk so I can admire the soles of his high-tech running shoes.
    “AV/AS?” It was a groan, not a question. “You don't think it's a little late?”
    Instantly Seeley felt older than forty-seven, and the day that had started so brilliantly turned dark. “Did you review Steinhardt's lab notebooks before you filed the application?”
    “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