Aftermath

• Author: Ronald K. Fierstein
• Profession: Lawyer on the team of litigators from the prestigious patent law firm of Fish & Neave
• Pages: 501-513

501

CHAPT ER 28

AFTERMATH

On the first of May, 1989, a full thirteen years after Polaroid filed its

original complaint in Boston’s federal court accusing Eastman Kodak

of infringing its patents, Herbert Schwartz led another team of Fish &

Neave lawyers into a different Boston federal courtroom, this time to liti-

gate the amount of damages Kodak would have to pay Polaroid for its

transgressions. Between removing all of its cameras and film from store

shelves across the country and shuttering its manufacturing operations,

its defeat had reportedly already cost Kodak the “staggering” amount of

$494 million. It had also cost Kodak an additional $150 million to settle

class action lawsuits with unhappy customers. Yet a determination on the

amount of compensatory damages Kodak would have to pay to Polaroid

was still to be made. From the beginning of the litigation, the case had

been bifurcated so that this issue would be addressed after, and if, Kodak’s

liability was established in the first instance. That time had finally come.

Across the courtroom, the legal team representing Kodak was a new

one. Richard E. Carlton and a team of eight lawyers from Sullivan &

Cromwell, an old Wall Street firm self-described as the “pre-eminent law

firm in America,” had replaced Frank Carr and his colleagues from Ken-

yon & Kenyon. The change was made, at least in part, because Carr, Ken-

yon’s senior partner and lead counsel for the liability phase, was expected

to be called as a witness during the damages trial. One of the issues to

be considered was whether or not Kodak’s infringement had been will-

ful. This could triple the penalty assessed by the judge. The many legal

opinions Carr had given to Kodak over the years on the viability of Pola-

roid’s patents would necessarily be of central importance in the willful-

ness inquiry. So now, Kodak relied on Sullivan & Cromwell, which had

successfully represented it in the appeal against the adverse verdict in the

goL27698_28_ch28_501-514.indd 501 9/17/14 12:05 PM