ONE
The law offices of Putnam & Stearns are located in the narrow streets of Boston's financial district, amid granite-fronted bank buildings: Boston's version of Wall Street, with fewer bars. Our offices occupy two floors of a handsome old building on Federal Street, on the ground floor of which is a respectable old Brahmin bank famous for laundering money for the Mafia.
Putnam & Stearns, I should probably explain at this point, is one of the CIA's "outside" law firms. It's all perfectly legitimate; it doesn't violate the Agency's charter (which prohibits them from domestic shenanigans; international shenanigans are apparently okay). Fairly often, the CIA requires legal counsel in matters involving, say, immigration and naturalization (if they're trying to spirit an intelligence defector into the country) or real estate (if they need to acquire property, a safe house, or an office or anything else that can't be traced to Langley). Or, and this is Bill Stearns's particular expertise, moving funds around, in and out of numbered accounts in Luxembourg or Zurich or Grand Cayman.
Putnam & Stearns, though, does a lot more than the CIA's dirty work. It's a general practice, white-shoe firm comprising some thirty lawyers, twelve partners, who practice a range of law from corporate litigation to real estate to divorce to estates to tax to intellectual property.
That last item, intellectual property, is my specialty: patents and copyrights, who invented what, who stole whose invention. You remember a few years back when a famous sneaker manufacturer came up with a gimmick that allowed the wearer to pump the shoe up with air, for a cost of a mere hundred and fifty dollars a pair. That was my handiwork—the legal work, I mean; I devised an ironclad patent, or as ironclad as you can realistically get.
For the last several months I had been keeping twenty-four large dolls in my office, which no doubt disconcerted my stuffier clients. I was helping a toy manufacturer out in Western Massachusetts defend his Big Baby Doll line of products. You probably haven't heard of Big Baby Dolls. This is because the claim was settled against my client; I'm not proud of it. I did much better restraining a cookie company from using in its TV ads a little animated creature that suspiciously resembled the Pillsbury Doughboy.
I was one of two intellectual-property lawyers at Putnam & Stearns, which officially makes us a "department," if you count the paralegals and legal secretaries and all that. This means the firm gets to advertise that we're a full-service legal corporation, here to handle all your needs, even your copyrights and your patents. All your legal needs serviced under one roof. One-stop shopping.
I was considered a good attorney, but not because I loved it or took much interest in it. After all, as the old saw has it, lawyers are the only persons in whom ignorance of the law is not punished.
Instead, I am blessed with a rare neurological gift, present in less than 0.1 percent of the population: an eidetic (or photographic, as it's colloquially known) memory. It doesn't make me smarter than anyone else, but it certainly made my life easier in college and law school, when it came time to memorize a passage or a case. I can see the page, as if it were a picture, in my mind. This capability is not something I generally let people know about. It's not the sort of thing that wins you many friends. And yet it is so much a part of who I am, and always has been, that I must constantly be mindful not to let it set me apart from others.
* * *
To their credit, the founding partners, Bill Stearns and the late James Putnam, spent nearly their entire earnings their first few years on interior decoration. The office, all Persian rugs and fragile antiques from the Regency period, exudes a stifling, hushed elegance. Even the ring of the telephone is muted. The receptionist, who's (naturally) English, sits at an antique library table whose surface is polished to a high gloss. I have seen clients, real estate moguls who in their own lairs strut around barking orders to their minions, walk into our reception area as cowed and discomfited as chastened schoolboys.
It was a little over a month since Hal Sinclair's funeral, and I was rushing to a meeting in my own office. I passed Ken McElvoy, a junior partner who had been enmeshed in some unspeakably dull corporate litigation for almost six months. He was carrying a huge stack of depositions and looked miserable, like some wretch out of Bleak House or something. I gave poor Dickensian McElvoy a smile and headed for my office.
My secretary, Darlene, gave me a quick wave, and said: "Everyone's there."
Darlene is the funkiest person in this firm, which isn't hard to accomplish. She usually wears all black. Her hair is dyed a jet black; her eye shadow is midnight blue. But she's fiercely efficient, so I don't give her any grief.
I had called this meeting to resolve a dispute that had been carried out through the mail for more than six months. The matter concerned an exercise machine called the Alpine Ski, a magnificently designed device that simulates downhill skiing, giving the user not only the aerobic benefits you get from something like the NordicTrack, but at the same time, a serious muscular workout.
The Alpine Ski's inventor, Herb Schell, was my client. A former personal trainer in Hollywood, he had made a bundle with this invention. Then suddenly, about a year ago, cheaply produced ads began to run on late-night television for something called the Scandinavian Skier, unmistakably a knockoff of Herb's invention. It was a lot less expensive, too: whereas the real Alpine Ski sells for upward of six hundred dollars (and Alpine Ski Gold for over a thousand), the Scandinavian Skier was going for $129.99.
Herb Schell was already seated in my office, along with the president and chief executive officer of E-Z Fit, the company that was manufacturing Scandinavian Skier, Arthur Sommer; and his attorney, a high-powered lawyer named Stephen Lyons, whom I'd heard of but never met.
On some level I found it ironic that both Herb Schell and Arthur Sommer were paunchy and visibly in lousy shape. Herb had confided to me over lunch shortly after we met that, now that he was no longer a personal trainer, he'd grown tired of working out all the time; he much preferred liposuction.
"Gentlemen," I said. We shook hands all around. "Let's resolve this thing."
"Amen," Steve Lyons said. His enemies (who are legion) have been known to refer to him as "Lyin' Lyons" and his small, aggressive law firm as "the Lyons den."
"All right," I said. "Your client has blatantly infringed on my client's design, down to the last claimed feature. We've been through all this dozens of times. It's a goddamned Chinese copy, and unless this is resolved today, we are prepared to go into federal court and seek an injunction. We'll also seek damages, which, as you know in cases of willful infringement, are treble." Patent law tends to be a very mild, rather dull way to earn a living—the bland leading the bland, I like to call it—and so I cherished my few opportunities to be confrontational. Arthur Sommer flushed, presumably with anger, but said nothing. His thin lips curled up in a small, tight smile. His attorney leaned back in his chair: ominous body language if ever there was such a thing.
"Look, Ben," Lyons said. "Since there really isn't any cause of action here, my client is generously willing to make a courtesy settlement offer of five hundred thousand. I've advised him against it, but this charade is costing him and all of us—"
"Five hundred thousand? Try twenty times that."
"Sorry, Ben," Lyons said. "This patent isn't worth the paper it's printed on." He clasped his hands together. "We got an on-sale bar here."
"What the hell are you talking about?"
"I have evidence that Alpine Ski went on sale more than a year before the patent filing date," Lyons replied smugly. "Sixteen months before, to be exact. So the damned patent's not valid. On-sale statutory bar."
This was a new approach on his part, and it was unsettling. Up to now, all we'd been hashing out, in letter after letter, was whether Scandinavian Skier materially resembled Alpine Ski: whether it infringed the claims of the patent, to put it in legalese. Now he was citing something called the "on sale" doctrine, under which an invention can't be patented if it was "in public use or on sale" more than a year before the date that the patent was applied for.
But I did not let on my surprise. A good attorney must be a skilled bullshit artist. "Nice try," I said. "That's not really use, Steve, and you know it." It sounded good, whatever it meant.
"Ben—" Herb interrupted.
Lyons handed me a legal file folder. "Take a look," he said. "Here's a copy of a newsletter put out by the Big Apple Health Club in Manhattan that shows their latest piece of equipment—the Alpine Ski—almost a year and a half before Mr. Schell applied for his patent. And an invoice."
I took the folder, glanced at it without interest, and handed it back.
"Ben—" Herb said again. "Can we talk for a minute?"
I left Lyons and Sommer in my office while Herb and I talked in a nearby vacant conference room.
"What the hell is this all about?" I asked.
"It's true. They're right."
"You sold this thing more than a year before you applied for a patent?"
"Two years before, actually. To twelve personal trainers at health clubs around the country."
I stared at him evenly. "Why?"
"Christ, Ben, I didn't know the law. How the hell are you supposed to test these things out unless you get it out there? You have no idea the kind of abuse machines like this take in gyms and health clubs."
"So you were able to make improvements along the way?"
"Well, sure."
"Ah. How fast can you get me a document from your corporate headquarters in Chicago?"
* * *
Steve Lyons was beaming with triumph as we came in. "I assume," he said with what he probably took to be sympathy, "that Mr. Schell has filled you in."
"Yes, indeed," I said.
"Preparation, Ben," he said. "You ought to look into it."
The timing was exquisite. At that moment my personal fax machine rang and squealed and began to print out a document. I walked over to the fax, watched it print out, and as it did so, I said: "Steve, I only wish you'd saved us all the time and expense by doing a little reading in your case law."
He looked at me, puzzled, his smile dimming somewhat.
"Ah, let's see," I said. "It would be 917 Fed Second 544, Federal Circuit 1990."
"What's he talking about?" Sommer audibly whispered to Lyons. Lyons, unwilling to shrug in my presence, merely stared at me, uncomprehending.
"Is that true?" Sommer insisted.
Lyon's facial expression did not change. "I'd have to look it up."
The fax machine cut the paper, a staccato punctuation mark. I handed it to Lyons. "Here's a letter from the manager of the Big Apple Health Club to Herb Schell, containing his thoughts about the Alpine Ski, his notes on how it was holding up and what about it might be reconfigured. And suggestions for modifications."
At that point Darlene walked in, silently gave me a book—Federal Reporter 917, 2d Series—and left. Without even looking at it, I handed it to Lyons.
"This some sort of game you're playing?" Lyons managed to stammer.
"Oh, not at all," I replied. "My client sold prototypes during a period of testing, and gathered performance data from the sold version. Therefore the ‘on-sale' doctrine doesn't apply, Steve."
"I don't even know where you're getting this—"
"Manville Sales Corp. v. Paramount Systems, Inc. Fed Second 544."
"Oh, come off it," Lyons retorted. "I never even heard of—"
"Page 1314," I said as I returned to my chair, leaned back, and folded my legs. "Let's see." In a monotone, I recited: "The policies that define the on sale and public use bars do not support invalidation of the patent even though, more than one year prior to filing a patent application, the patentee installed a fixture at a state highway rest station under construction. A period of outdoor testing of the invention was necessary to determine whether it would…"
Lyons, in the meantime, sat with the book open on his lap, following along, mouthing the words. He finished the sentence for me: "it would serve its purpose."
He looked up at me, slack-jawed.
"See you in court," I said.
Herb Schell left that morning much happier and almost ten million dollars richer. And I had the pleasure of a parting colloquy with Steve Lyons.
"You knew that fucking case word for word," he said. "Word for word. How the hell did you do that?"
"Preparation," I said, and shook his hand firmly. "Look into it."
Copyright © 1993 by Joseph Finder
