Now, Gould's attorneys had a $1.5-million war chest. "It was a miracle come in the nick of time," Gould says. He sold Patlex another 15% of his royalties for a whopping $2.3 million, which Patlex raised through the sale of stock.
This was the good news.
Dick Samuel remembers the moment. Spring 1982. He is in federal court in Washington, D.C., arguing yet another motion before Judge Thomas A. Flannery. Samuel's daughter, Mimi, a junior at Georgetown University, is observing from the back of the courtroom. "I'm standing there and I remember telling her once when she was 12 how Daddy had taken this case and was going to make all this money. The patent application had been filed three years before she was born, and there she is, a 20-year-old woman, sitting there in court. It gave me a feeling of 'My God, how long can something like this go on?' "
The gas-discharge amplifier involved in this suit was potentially the most valuable of Gould's inventions, as it had become the technology of choice for laser makers. In July the judge dismissed the case. He agreed with the patent office's argument that the earlier interference cases had already decided the issue. Judge Flannery's decision was devastating enough, but the shock rumbled along the fault lines of all of Gould's other patents.
Soon, so much would go so wrong that Gould, Appel, and Samuel began feeling a bit paranoid. "I became convinced there was a conspiracy," Gould says. "I still don't know." Samuel says a patent attorney gets a feel for patent ritual, for the flow of routine: "What happened with the Gould cases was totally outside normal expectation."
Samuel filed a routine motion asking Judge Flannery to reconsider his dismissal. In the court debate that followed, the patent office filed a curious and controversial motion, seeming to invite outsiders to ask for reexamination of Gould's patents. This public expression of doubt ran contrary to the office's mandate to act as an impartial administrator. Samuel was shocked. "In our view, this was a signal to others that if they filed a request for reexamination it would be favorably looked upon," he says.
A copy of the government's motion arrived in Orlando as the Control Laser trial was to begin. Control Laser's attorney asked the Orlando judge to postpone the trial.
The sun rose on a bad day in Orlando. Gould is en route to Orlando. He has spent weeks preparing to testify. Samuel has temporarily moved to Florida. "The case had been pending for five years," Samuel says. "We'd passed all the physical and economic hurdles of finally being allowed to tell our stories to somebody who would pay attention -- we had even bought new suits and ties and polished our shoes. And it was like the circus starting all over again."
The judge who'd presided over the suit for the past five years chose that day to remove himself from the case, citing a potential conflict of interest. The newly assigned judge canceled the trial.
Within two weeks American Telephone & Telegraph Co. challenged the same patent. Other reexamination requests followed. On November 17 General Motors Corp. asked for a review of both patents and hauled in official paper weighing 27 pounds, including a 122-page memorandum and 30 bound volumes of transcripts, stipulations, and exhibits. On December 6 GM filed 14 more pounds of paper. GM, which made extensive use of lasers, argued that Gould's ideas for using lasers simply were not all that new, citing Archimedes's use of a lens in the third century B.C. to set a ship on fire.
The patent office assigned the requests to Harvey E. Behrend, a veteran examiner. The choice was a curious one. Typically a case goes back to the original examiner or an examiner in his unit. Behrend had not been involved on either application, according to court filings. A third application was also assigned to Behrend; it had earlier been assigned to two examiners outside his unit.
Behrend is said to be a dedicated, hardworking examiner. But there is another side to his reputation. He is widely known as one of the toughest, most stubborn examiners, particularly regarding whether an application contains sufficient disclosure of an invention. In one court filing, Patlex alleged that the Gould patents were assigned to Behrend "in part because of statistics demonstrating that Examiner Behrend allows and had allowed a smaller percentage of cases than the examining corps as a whole."
In 1983, Behrend rejected the two patents already issued to Gould.
Gould's journey had begun in 1957. In the interim, John Glenn had rocketed into space. John F. Kennedy had been assassinated. The Beatles had landed in New York. U.S. troops had landed in Da Nang. The scope of this thing: Woodstock. Kent State. Robert Kennedy. Martin Luther King Jr. Neil Armstrong had strolled on the moon. Steve Jobs had created an industry. Lasers had transformed life -- medicine, warfare, printing, shopping, music. A laser had even saved the sight in one of Gould's eyes.
And Gould passed to the far side of middle age. He was no sad-sack technological hobo, however. He taught physics. He helped found an optical communications concern, and came away with $500,000. This, plus what he'd received from Patlex, put him securely in the millionaire category. "I didn't spend all that time moping," he says. Still, he did not possess a valid U.S. patent for any of the ideas he'd proposed 25 years before. He had not received due credit from his peers, or any of the other intangibles that might have been his had his patents been issued decades before. In some circles, he remained a crackpot.
One day in 1983, the world collapsing once again around Gould, Erlbaum shocked the Patlex board by announcing his resignation. "I was frustrated," he says. He shocked Samuel by proposing for the first time that Samuel succeed him.
At the time Samuel was still a partner at his law firm. He was making serious money; the firm was successful and growing. This idea was craziness. Take a 20% cut in salary and throw away a valuable partnership? To defend an obscure inventor?
