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The dry, technical world of patent law apparently has a seamy underbelly. And it was all hanging out July 22 when MultiMetrixs’ patent infringement suit against Applied Materials was irrevocably besmirched by documents supposedly signed by a dead man and a witness who’d sold freon to meth dealers. Semiconductor equipment giant Applied had sued MultiMetrixs, a tiny Santa Clara operation, for declaratory judgment, claiming it invented technology patented by MultiMetrixs. The small company made counterclaims that Applied was infringing on its ’187 patent, which could probably be explained in several dry, technical paragraphs. The problem for MultiMetrixs and its lawyers at Niro, Scavone, Haller & Niro — a well-known patent plaintiff firm in Chicago — was that parts of the patent application were signed by a dead guy. (OK, make your joke about how the patent application process is killing everyone these days.) David Margulis, an inventor on the patent in question, died in 2002, but apparently signed declarations to the patent office in 2003 and 2004. “I’ve been at this for 19 years, and I’d have to say this is the first case in which someone was purported to have signed a document after they’d died,” Jeffrey Bleich, a Munger, Tolles & Olson partner who represented Applied, said without flair on July 22. He showed a little flair in court, though, when he had one of the living inventors, Boris Kesil, on the stand, testifying that Margulis had signed the declarations, then died. Bleich: Could we see Exhibit 87 [Margulis' death certificate]? Kesil: Oh, 2002, he pass away. Bleich: He passed away in 2002? Kesil: Yes. Bleich: He was dead when this was submitted, wasn’t he, sir? Kesil: Looks like. U.S. District Judge Marilyn Hall Patel found Multimetrixs guilty of hoodwinking the patent office, otherwise known as inequitable conduct, and declared the patent unenforceable. So what happened? That’s what Munger, Tolles asked Ilya Zborovsky, the New York patent lawyer who worked on the patent application. Sadly, Zborovsky “could not remember anything because all of his files were lost in a fire,” according to Patel’s order, leaving the illusive acts of the living dead in obscurity. Another Patel peeve probably best left in obscurity was the unhappy past of MultiMetrixs President Mark Kesel (related, it turns out, to Kesil — long story). It seems that in 2004 Kesel pleaded guilty to money laundering and selling freon to meth manufacturers (more than 600,000 pounds, according to news reports). He apparently pocketed about $13 million with this sideline, between 1996 and 2000. Although his entrepreneurial bent undoubtedly made him the perfect choice to head a tech startup in Silicon Valley, Judge Patel thought it made him an unreliable witness. Kesel — who told the East Bay Express in 2003 that he was targeted by the feds because of his Russian origin — declined to comment publicly on the patent case. The MultiMetrixs president has a penchant for high-profile lawyers. J. Tony Serra was his attorney in the criminal case, and Niro, Scavone was his law firm in the criminal case. Was is the operative word here — Niro, Scavone tried to bolt from the case in March after Patel ordered that a special master oversee discovery from MultiMetrixs. Patel wouldn’t let the firm go until July 22, when she finally granted the motion to withdraw after the bench trial had been completed. A lawyer from the firm didn’t return a call seeking comment. Although this case is entertaining enough to merit an episode of “Law & Order: Special Patent Unit,” it does leave deeper questions for serious practitioners, like what now is the best way for the dead to patent their new inventions.

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