Say Nothing

by Brad Parks

EIGHTEEN

  I had, up until that moment, forgotten that The New York Times had called my chambers and The Wall Street Journal had sought comment about me from Senator Franklin.

  Scrambling over to my computer, I Googled “Judge Scott Sampson Wall Street Journal.” The top result was a story with the headline BIG PHARMA EYES TURN TO VIRGINIA COURTROOM.

  It was about a patent infringement case called Palgraff vs. ApotheGen. The name of the man claiming his patent had been violated, Palgraff, meant nothing to me. The defendant, on the other hand, was instantly familiar: ApotheGen’s products could be found in half the medicine cabinets in America.

  The Journal called Palgraff “a heretofore little-noticed case, quietly filed in the Eastern District of Virginia, that has the potential to be the largest patent lawsuit in US history.”

  “Little-noticed” was an understatement. I had no memory of seeing it on the docket. This wasn’t necessarily unusual. Cases typically didn’t come to my attention until I had to make some kind of preliminary ruling on evidentiary matters; or, at the very least, until there was a meeting between the litigants and my staff. To the best of my knowledge, that hadn’t happened yet.

  The wheels in my head were already spinning so fast—a patent case? this was about a patent case?—I had to force myself to slow down and actually read the article. The dispute, I quickly learned, centered on the next generation of statins, the cholesterol medicine taken by roughly twenty-five million Americans, with many more to come as baby boomers aged. Statins diminished the body’s ability to make LDL, the so-called bad cholesterol, while also clearing the way for a modest increase in HDL, the good stuff.

  The future of statins involved something known as a PCSK9 inhibitor. Scientists had figured out that certain unlucky people with chokingly high cholesterol—the type of people who often had their first heart attacks in their thirties or forties, even though they were in otherwise good shape—had an abundance of the PCSK9 protein in their bodies.

  On the flip side, a small group of people were born with a malfunctioning or severely hampered PCSK9 gene and therefore had little or no PCSK9 in their systems. They had shockingly low LDL levels and almost never suffered heart attacks, despite any number of other risk factors, from smoking to diabetes to obesity.

  The science had become clear: If you could find a way to remove or reduce PCSK9 from the body, you could send LDL levels plummeting and all but eliminate the risk of heart disease, the number one killer in America.

  This discovery set off a fevered race in the pharmaceutical industry. Companies were pouring millions into the effort and tooling up their factories so they were ready the moment their research teams shouted, “Eureka!”

  ApotheGen claimed to have gotten there first, trademarking the drug as Prevalia. It was now in the final stages of clinical trials. FDA approval was expected within a few months.

  The Journal called Prevalia “the next coming of Lipitor, the bestselling prescription drug in history with $125 billion in sales before it lost patent protection in 2011.” Like Lipitor, Prevalia was projected to be a maintenance drug for millions of Americans, who would take it every day for as long as they lived. With a well-worded patent, the company was guaranteed twenty years of reaping billions from a legalized monopoly.

  “The statin market had been all but dead to Big Pharma after the last generation of those drugs lost patent protection, leading to their manufacture as low-cost, low-margin generics,” the Journal reported. “In Prevalia, ApotheGen could, with one little pill, not only reinvigorate the statin market but dominate it for a decade or more.”

  The company CEO, Barnaby Roberts, still thought it would. “This suit is wholly without merit and we will defend ourselves with all the legal resources we can muster,” Roberts told the Journal. “The plaintiff is nothing more than a dreamer and gold digger. We are not going to let one man’s frivolous fantasy stop us from bringing this lifesaving product to the marketplace.”

  The only mention of me was far down, toward the end. It chronicled my employment with Senator Blake Franklin and, of course, The Incident. It noted that my four years on the bench had not included any cases as prominent as this one.

  “Scott Sampson is an outstanding judge who has proven himself to be very evenhanded,” Blake was quoted as saying. “I have no doubt the verdict will be fair and just.”

  I remembered the conversation Blake and I had the previous day. When he asked me whether I was distracted because of a “drug case,” I thought he meant Skavron. He assumed I knew he was talking about ApotheGen.

  And, certainly, it was not a faulty assumption. If I had actually gone through with Karen’s plan to systematically study my entire docket and look for a case that cried out for blackmail, it would have been hard to come up with a more fitting candidate.

  Having completed the Journal article, I went next to Hedgeof Reason.com, the website whose reporter had called. According to Jeremy, it specialized in the down-and-dirty tabloid take.

  I got that and more. Steve Politi’s story was headlined NO APATHY ON APOTHEGEN: JUDGE IN MASSIVE PATENT LAWSUIT IMPRESSED WITH PLAINTIFF’S CLAIM.

  The words were like a slap. I was impressed? How was that possible? Up until a few minutes earlier I hadn’t even heard of the plaintiff’s claim, much less been impressed by it.

  I continued reading to learn that “a source close to Judge Scott Sampson” was saying I was “ready to rule for Palgraff” and that I was pushing ApotheGen to settle “given the near-inevitability of the plaintiff’s chances of success.”

  This supposed “source” could only be Politi’s own gift for fiction.

  There was a burn starting in my stomach. I swore at the computer screen. People were now going to be watching me even more closely, believing that I had a leak in my office and was sharing inappropriate thoughts with that leak, whispering things I shouldn’t have been divulging to anyone. This at a time when I was already under scrutiny for the Skavron hearing.

  Then it got worse. At the end of the post, there was an update, or, rather, an UPDATE!!!

  “ApotheGen shares are down sharply on this news. ApoG started the day trading at $92.72 and is already down $6.44. That’s seven percent, kids! Kudos to any of you who sold short!”

  Politi didn’t bother explaining the mechanics at work. As with all stocks, expectation was everything. ApotheGen had been valued in a manner that factored in Prevalia’s anticipated success. Analysts were now troubled by the possibility of having to share that bounty. It galled me that the imaginary stories Politi was concocting were being used to gain and lose real money in the real world.

  I was so angry at being grossly misrepresented—and yet was correspondingly so powerless to do anything about it without bringing more notice to myself and to this muck-mongering blog—I punched the monitor’s off button, as if Politi himself could somehow feel the blow.

  For a minute or two, I sat there, feeling hatred toward the man. Then I released the breath I had been holding and turned the monitor back on. Getting furious at a website would do nothing to help my daughter.

  I also had one more story to check out, one that would have a lot more eyeballs and influence. I went back to Google and typed “Judge Scott Sampson New York Times.”

  While the Journal focused on the financial implications of Palgraff vs. ApotheGen, the Times went for the human angle, casting the case as “a modern-day David and Goliath.”

  I knew all about Goliath already. David was Denny Palgraff, a self-employed chemist who drove an old station wagon that he converted to run on used vegetable oil, which he personally collected from restaurants in and around the central Pennsylvania town where he lived. A science prodigy, he applied for his first patent when he was thirteen. He graduated from college at seventeen and had his PhD by age twenty-one.

  He went on to work in research and development for several pharmaceutical companies
, but he chafed at their corporate strictures. Finally, he set off on his own, creating a home laboratory where he could try out his iconoclastic ideas without the meddling of bosses. When he felt he was close to a breakthrough, he often worked thirty-hour shifts.

  Everything he came up with, he patented. He then tried to get companies interested in using his creations in products they brought to the marketplace.

  His most successful patent to date had been an enzyme that was used to create hypoallergenic baby food. That gravy train had come to a stop two years ago. The company that had licensed the patent switched to another enzyme.

  But while he was searching for a new jackpot, he came to realize he was already sitting on one. Six years earlier, he had been toying with the PCSK9 protein. Theorizing it might play a role in diabetes, he slapped together a PCSK9 inhibitor and quickly patented it. He turned out to be dead wrong about PCSK9’s link to diabetes and forgot about it until Big Pharma’s PCSK9 sweepstakes became news a few years earlier.

  He might have stepped in and immediately declared himself the winner. Except Palgraff knew he didn’t have a viable PCSK9 inhibitor as far as the marketplace was concerned. He had no idea how to mass-produce it and, besides, his version needed to be injected directly into the bloodstream. All he really had was a patent that said he was the first person to create a PCSK9 inhibitor. So he had just been lying in wait, ready to sue the first company that got its PCSK9 inhibitor into clinical trials.

  In patent law, it doesn’t matter how you intended your invention to be used. If you create something you envisioned as a butterfly net and someone else wants to market it for fishing, it’s still your patent. When ApotheGen entered Phase III clinical trials—the large-scale testing of a drug that is its last step before receiving FDA approval—he went ahead with his lawsuit.

  Midway down the article, there was a picture of Denny Palgraff, gazing at some faraway object through circular, John Lennon–style glasses. His long gray hair was held back in a ponytail and his beard went down to his chest, beneath which his stomach protruded.

  Palgraff was not interviewed for the story. The only quotes came from his attorney, Roland Hemans, a partner with Cranston & Hemans in Chesapeake. It was a roughly fifty-lawyer firm that specialized in patent law and filed most of its cases in the Eastern District of Virginia because of the rocket docket. Generally speaking, plaintiffs in a patent case liked things to move fast.

  “We’re very pleased that Mr. Palgraff’s discovery will help millions of people stave off the ravages of heart disease,” Hemans said. “But ApotheGen cannot bring this drug to the marketplace while conveniently ignoring the simple fact that Mr. Palgraff got there first.”

  The Times did not interview the ApotheGen CEO. It went, instead, with a canned quote from a spokesperson: “ApotheGen categorically denies any patent infringement and plans to vigorously defend itself against this spurious claim. There will be no settlement.”

  They were the last words of the article, and my eyes rested on them as they churned in my head.

  There will be no settlement.

  Which is why someone reverts to the desperate measure that is kidnapping a child. Because they know it’s the only way to ensure the outcome they desire.

  The enormity of my situation was now pounding me in hurricane-force waves of understanding. This was a massive case, with billions of dollars—to say nothing of the future of heart disease—at stake. It was, personally and professionally, the most consequential matter that would ever appear in my courtroom.

  A multitude of news-gathering organizations, from niche websites to the largest media outlets, would be monitoring every step of the process. The country would be watching. The world would be watching.

  That huge audience would expect me to be the impartial, cool-headed arbiter; the robe-wearing symbol of authority; His Honor the judge, firmly at the helm.

  Yet I wasn’t really in control of anything. The kidnappers had already proven their dominion over something as small as which way I parted my hair. If they ordered me to appear in court naked, I’d have to do that too. I was a puppet, with unseen hands yanking my invisible strings.

  And if I failed to respond properly to just one little twitch, it could cost my daughter her life.

  * * *

  For a while I was so paralyzed by the size of the thing confronting me—and so daunted by the task of facing it—all I did was sit in my chair with my arms wrapped around me. I wasn’t sure I could get up anyway. My legs were too weak.

  I tried to remember a meditation from a long-ago yoga class but found I was too nauseated to concentrate on my breathing; and my mind, which I was supposed to be trying to clear, was like a crowded intersection at rush hour, hopelessly jammed, with far too many ideas trying to push through it at once.

  If I allowed myself to think about Emma—and how, for whatever I was experiencing, she was having it ten times worse—I feared I would be incapacitated altogether.

  Instead, I focused on Alison.

  I thought of her attacking a pile of wood, achieving catharsis one swing at a time. I thought about how strong she had been that morning, of the effort she was exerting for our family, of how she was refusing to surrender. She was surely having all the same dreads and doubts yet was still summoning the resources to move on.

  My eyes went to another picture that was framed on my desk. It was my favorite picture of my wife from our wedding day. It wasn’t the traditional bride-and-bouquet pose. She was sitting in front of a mirror, getting ready. It was shot from behind, but someone must have just called her name or said hello, because she had turned toward whoever called out. The camera caught half her face directly. The other half was reflected in the mirror. Both halves showed, from slightly different perspectives, this incredible hope and optimism on her face. Here on her wedding day, the first day of the rest of her life, the future was boundless and wonderful.

  The woman in that photo could conquer anything. Surely, the man she chose to marry could do the same.

  Compelling my arms back up to my computer, I clicked off my browser and went over to the case-management system to see what I could learn about Palgraff vs. ApotheGen that was not already in two large newspapers and one irresponsible website.

  It was scheduled for a Rule 16B Conference on Monday. That, finally, was a piece of good news. It meant the case was further along than I thought.

  There are several steps that precede a Rule 16B Conference—none of which happen under my purview, which was why the case hadn’t hit my radar screen yet. Obviously, a complaint had been filed by Palgraff. It had then been answered by ApotheGen. Next, the parties’ lawyers had convened on their own for a Rule 26F Conference, where they began to discuss what was in dispute (usually everything) and what they agreed about (usually nothing). They also tried to reach an accord on what they would disclose to each other as part of discovery: what documents and computer files they would turn over, who would be made available for depositions, and so on.

  Then it was on to the Rule 16B, where a schedule for trial would be set. I usually let Jeremy Freeland and Jean Ann Sanford take care of those details. Big patent cases typically took a year, even with the rocket docket.

  The specter of Emma being away from us that long was sickening.

  My arms still felt leaden as I scrolled through the complaint, then the answer. I already knew where the case was heading. Patent cases like this one often hinged on something called a Markman hearing.

  The term comes from a landmark Supreme Court decision in the mid-1990s, a case called Markman vs. Westview Instruments. The question before the Court was whether the scope of a patent was a matter of law or fact. It’s an important distinction because within our legal system, juries decide matters of fact (did the accused kill the guy?), while judges decide matters of law (is it legal to kill someone?).

  In Markman, the Supreme Court ruled that
patents are essentially laws that guarantee inventors the right to exclusively sell their products for a given period of time. Therefore, a judge must interpret what is or isn’t covered by an individual patent. Each side tries to convince the judge how to construe a certain set of claims, essentially tutoring the judge on their way of thinking.

  The judge’s decision, now known as a Markman determination, has a huge impact on the rest of the case—often ending it, for all practical purposes. If the determination goes in favor of the plaintiff, there is a settlement. No sane defense lawyer would let his client go to trial under those circumstances, where the client was almost guaranteed to lose and lose badly.

  If the Markman determination is favorable to the defendant, on the other hand, the plaintiff sometimes simply gives up, realizing the case is now facing an extremely expensive, likely unwinnable battle.

  The good news, for me and for Emma, was that the Markman hearing happened early in the process, well before the trial date.

  The battle lines were now clear to me. Both sides were convinced of their righteousness. Both had what they felt were compelling arguments. Both desperately needed me to decide in their favor, and one had gone to drastic measures to make it happen.

  But which one?

  It wasn’t much of a stretch to cast the big, bad pharmaceutical company as that kind of evil entity. In a corporation as large as ApotheGen, there were probably any number of people, from the CEO on down, who would feel enormous pressure to ensure the unimpeded successes of a vital new product.

  I hunched back toward my computer and, after a few keystrokes, found Roberts’ Wikipedia entry. He was English, with degrees from Oxford and Cambridge on his résumé. The picture with the entry showed a grandfatherly sort with snow-white hair, though it was still cut like that of the British schoolboy he had once been. He had been ApotheGen’s CEO for twenty years, which made him one of the longest-tenured chief executives in the Fortune 500.

  He hardly looked like a kidnapper. But he surely hadn’t lasted so long without being a strong, decisive leader, the kind who could anticipate problems and address them proactively. With the stock in a tumble, I could imagine the company’s largest shareholders calling him in a panic, demanding, What are you going to do about this, Mr. Roberts? And he would assure them, Don’t worry, I’ve got it under control.