A Patent Lie by Paul Goldstein Page A

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&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