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Matthew Powers had a problem: His potential star witness, one of the most famous scientists in recent memory, was also one of the most eccentric — an outspoken flower child whose exploits in chemistry hadn’t been confined to the laboratory. Kary Mullis revolutionized biotechnology with his invention, the polymerase chain reaction (PCR) — a process that won him the 1993 Nobel Prize in chemistry and spawned the patents that Powers now had to enforce at trial. But Mullis had done other things. To hear Mullis tell it — and he has told it often, most notably in his 1998 autobiography, Dancing Naked in the Mind Field, in which he poses on the cover shirtless and holding a surfboard — his life has been a well-rounded adventure encompassing biochemistry, astrology, a weakness for LSD and nitrous oxide, and back in 1985, an alien abduction. Mullis no doubt belonged in the annals of biotechnology. But did he belong on the stand? Then again, for Powers and his co-counsel Edward Reines, partners at Weil, Gotshal & Manges, this wasn’t a typical infringement suit. Brought six years earlier by Weil Gotshal’s client, Applied Biosystems, a subsidiary of Applera Corp., against Boston-based MJ Research Inc., the suit had seen more cast turnover than “Law & Order.” Powers and Reines took the case in 2002, replacing Orrick, Herrington & Sutcliffe as Applied’s lead counsel. MJ Research’s original lead counsel, Mintz Levin Cohn Ferris Glovsky and Popeo, was supplanted in the spring of 2002 by Greenberg Traurig (Joseph Blute, the lead Mintz Levin attorney on the case, declined to comment). Even the original judge, Dominic Squatrito, was gone. Judge Janet Bond Arterton came on board in 2003, when a conflict arose involving one of Squatrito’s law clerks. Maybe it was only fitting for Mullis to take center stage in the federal district courthouse in New Haven, Conn. PCR is one of the most important tools ever developed in biotechnology; it allows researchers to take a small fragment of DNA and multiply it rapidly. Since Mullis invented it in the 1980s, when he was a researcher at Cetus Corp., PCR has revolutionized disease research and drug discovery, as well as forensic science — it’s the technique that turns a minute DNA sample at a crime scene into a genetic fingerprint. Applied controls and licenses the research rights — as opposed to the diagnostic rights — to the technology via an exclusive agreement with Roche Molecular Systems Inc. Applied’s PCR licensing fees have been estimated at over $50 million a year. [For the full story on how Applied and Roche divide the PCR empire see " Going, Going ... "]For four years, Applied and MJ Research haggled over a license. MJ, which was founded in 1987 by two brothers, Michael and John Finney, builds specialized instruments — called thermal cyclers — that can be used in the PCR process. Other thermal cycler manufacturers had taken licenses from Applied, but MJ contended that its cyclers could be used for non-PCR applications. In June 1998, with the negotiations going nowhere, Applied filed suit, accusing MJ of infringing or inducing its customers to infringe three PCR patents and three thermal cycler patents. In early 2004 Judge Arterton split the case in two: a patent infringement phase followed by an antitrust phase that stemmed from MJ Research’s counterclaim that Applied illegally tied its PCR and thermal cycler patents together.Powers and Reines planned to base their case on one key concept: showing that MJ Research had built its business on thermal cyclers they knew were being used for PCR. The evidence Powers and Reines had to support their arguments was scathing, but it would be irrelevant if MJ could pull off an inequitable conduct defense, showing that Applied’s patents were invalid because Mullis had lied about being the sole inventor on several claims. “They were making a direct attack on Dr. Mullis,” says Powers. “It was essential to their defense, saying that Mullis lied to the patent office, attacking his credibility.”But Powers and Reines would have to wait before they could bring out their evidence. During his opening statement, MJ’s lead lawyer, Greenberg Traurig’s Allen Foster, picked up a cycler to show to the jury, and something went wrong. “His voice started quivering and his face went flush,” says Reines. Foster — who declined to comment on the case — finished his statement, but within a couple of hours, collapsed with a heart attack. MJ asked for a two-week extension until Foster could resume, but Arterton denied the motion. The examination of MJ’s principal witness, Applied Biosystems president Michael Hunkapiller, fell to Foster’s second chair, partner Kevin Stern. Then Arterton reversed herself and decided that the case would have to wait for Foster, after all.Foster came back just seven days after that, and started attacking Mullis’ credibility. Powers had to decide whether to put the “DNA Doctor” — as Mullis was known at one Los Angeles strip club — on the stand. “Some lawyers would try to contain him, afraid he’d look a little goofy,” says Powers. Indeed, it had happened before. During the O.J. Simpson trial in 1995, the defense team had asked Mullis to testify regarding the DNA evidence, which Mullis thought should have been thrown out because of the way the Los Angeles police department had conducted its testing. But he was dropped from the roster just before being called. In his autobiography, Mullis writes that Johnnie Cochran told him the jury was already convinced on the DNA evidence, but, Mullis surmises, “there was a danger there, and they didn’t get to be successful lawyers by holding their hands over their faces and saying, ‘Well, here goes.’”Powers decided to take the chance, not hiding, but rather exploiting, the chemist’s offbeat, candid persona. “We wanted to show the jury his quirky aspects,” says Powers. “He’s a very plain and honest person, very personable. They’ll see that he’s a lot of things, but not a liar.” (Mullis has no financial interest in Applied.) Not everyone agreed with Powers. Roche — Applied’s co-plaintiff in the case — was particularly concerned with putting Mullis on the stand, according to a lawyer on Applied’s legal team. (Roche was represented by Arnold & Porter.)There was one inarguable advantage to getting Mullis into the courtroom: the Nobel Prize. The idea was to pass the medal and the proclamation that went with it around the jury box, zeroing in on the enormous value of Mullis’ work. Foster objected, but Powers argued that MJ’s counsel had, along with everyone else in the courtroom, rushed to get a look at the Nobel Prize when Mullis brought it in. “The other lawyers wanted to see it, the judge wanted to see it — why should the jury be the only ones not able to see it?” says Powers. The court agreed.In his testimony about the Nobel Prize, Mullis, unprompted, walked over to the jury box, talking about how the king of Sweden had made everyone “feel like a king” and how “cool” that was. “He described it in such genuine terms that you knew instantly this was not a canned speech but how he really felt about it,” says Powers. “I think the jury reacted favorably to him. He didn’t give pat answers.” But another lawyer on Applied’s team says that Mullis wasn’t an easy witness. “He was not focused, he wandered from the question, and he didn’t do so great a job explaining PCR,” this lawyer says.The bigger worry, of course, was Mullis on cross examination. “We weren’t afraid so much about the alien abduction and prior drug use — they’d have a problem getting that in and could end up upsetting the judge,” says the lawyer on Applied’s team. “We were worried about the sex stuff. He’s a racy guy. There were all these stories about him putting pictures of naked women in his presentations. It could alienate the female jurors.” But MJ Research didn’t bring up sex, or any of the other dicey topics. “They were pretty gentle,” says the Applied lawyer. “They’d attack him at the margins, asking Mullis, for example, if the computer coders who worked on PCR weren’t also inventors, and Mullis would say that he told them the steps, and they simply carried those out. Mullis was actually much better on cross than on direct. I think his protection instinct kicked in, and he got right to the point.” Foster says that he decided not to attack Mullis’ credibility at the start of his cross examination, when Mullis gave testimony that, Foster says, could invalidate one of the patents on appeal.Powers and Reines had more than Mullis to show the jury. They brought out a 1992 letter that turned up during discovery, John Finney writing to Michael: “We’ve ridden the wave of growth in PCR, but we haven’t had any claim to the idea and it has spawned a brutally competitive industry.” Powers and Reines displayed an old screenshot of MJ’s Web site, touting PCR as fundamental to the company’s success. “They changed the site before trial,” says Powers, “deleting the word PCR and replacing it with thermal cycler.” Jurors saw memos to MJ’s sales force, instructing them to tell customers that the company’s cyclers were adapted for PCR use. When MJ argued that thermal cyclers had uses other than PCR, and it didn’t know what its customers used them for, Orrick partner Robert Cote introduced a survey, which had been commissioned by his firm in 2000, showing that 96 percent of MJ’s customers used cyclers for PCR. MJ didn’t offer a survey in rebuttal. According to a representative of MJ Research, Judge Squatrito had originally ruled Applied’s survey inadmissible, so MJ Research did not commission a rebuttal survey. When Arterton reversed that ruling after discovery closed, there was no opportunity to do the survey.MJ Research had one last card to play. On March 29, the day before closing arguments, the legal teams were huddled with Arterton, arguing the last of the jury instructions. Arterton had been delayed and the meeting was running late. At 5 p.m., Foster asked Powers to step outside the judge’s chambers, where another Greenberg Traurig attorney told Powers that MJ had just filed for bankruptcy in Nevada, an event that would automatically stay the trial. Powers and Reines were incredulous. “We just spent three weeks at trial, millions of dollars in fees, then they do this the night before,” says Reines. “It was incredible.” The delay, Powers and Reines feared, could also cause a mistrial, as Arterton had promised the jury that the trial would be over by the end of March and many of the jurors had already made plans.A representative from MJ Research says the Weil Gotshal lawyers shouldn’t have been surprised — they had spurred the bankruptcy filing: “[Applied's] attorneys had announced, just 48 hours earlier, that if they won in phase I, they would immediately seek an enjoinment stopping us from selling any cyclers — before we tried the second part of the case,” says the representative. “The advantage of a bankruptcy filing is that the bankruptcy court has to okay any injunction.” Powers hurried into Arterton’s chambers and phoned the bankruptcy judge in Nevada. Had they not caught him, the stay would have gone into effect automatically. An emergency hearing was held over the phone. Arterton stayed in chambers till 8 p.m., when the bankruptcy judge ruled that the patent trial could continue.After three days of deliberation, the jury returned a $19.8 million judgment: $13.9 million for infringing the three PCR process patents and $5.9 million for infringing the three thermal cycler patents (of the total, each Finney brother was found personally liable for just under $1 million). “Our major showing on damages was that there was a licensing program for the patent rights, and here’s what other companies in the field had agreed to pay,” says Reines. “I think it’s fair to say that played a big role in the number the jury came up with.” The jury also found the infringement of four patents to be willful, so Applied Biosystems is seeking an increase in damages along with attorney fees.After six years, not even a verdict, it seems, can end this battle (forget “Law & Order”; think Lord of the Rings). The parties planned to meet again in July to litigate the antitrust phase of the trial, with Weil Gotshal representing Applied, but Cravath Swaine & Moore’s John Beerbower taking over first chair for MJ Research (Greenberg Traurig will move to second chair). If MJ can prove patent misuse, it would effectively overturn its earlier loss. PCR may be all about speed, but this case isn’t.

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