of left field. He had no idea who Richard Fuisz was nor what patent he
was referring to. As a favor to his old friend, he nevertheless agreed to
see Elizabeth.
She came by a few weeks later, on September 22, 2008, and met
with Chuck and another attorney named Ken Cage. Chuck had been
McDermott’s managing partner when the firm moved to the Robert A.
M. Stern limestone building it occupied on Thirteenth Street, so he
had the biggest and nicest corner office on the eighth floor. Elizabeth
came in wheeling her blood-testing machine and sat down in one of
two love seats placed catty-corner next to the office’s big bay window.
She didn’t offer to demonstrate how the device worked, but Chuck
thought it looked impressive at first glance. It was a big, shiny black-
and-white cube with a digital touchscreen that bore a clear
resemblance to an iPhone’s.
Elizabeth got straight to the point. She wanted to know if
McDermott would agree to represent Theranos against Richard Fuisz.
Ken said they could look into filing a patent interference case if that’s
what she had in mind. Interference cases are contests adjudicated by
the Patent and Trademark Office to determine who of two rival
applicants vying to patent the same invention came up with it first.
The winner’s application gets priority even if it was filed later. Ken
specialized in these types of cases.
Chuck was hesitant to do that, though. He told Elizabeth he would
have to think about it and talk to some of his colleagues. Fuisz had a
son who was a partner at the firm, which made the situation awkward,
he said. Elizabeth didn’t blink at the mention of John Fuisz. It was the
opening she was waiting for. She asked whether it was possible that
John had accessed confidential information from McDermott’s
Theranos file and leaked it to his father.
That seemed far-fetched to Chuck. It was the sort of thing that
would get an attorney fired and disbarred. John was a patent litigator.
He wasn’t part of McDermott’s separate patent prosecution team that
drafted and filed patents. He had no reason or justification for
accessing Theranos’s file. Besides, he was a partner at the firm. Why
would he commit career suicide? It didn’t make sense. What’s more,