Land Joins the Fray

• Author: Ronald K. Fierstein
• Profession: Lawyer on the team of litigators from the prestigious patent law firm of Fish & Neave
• Pages: 289-310

289

CHAPTER 16

LAND JOINS THE FRAY

On June 25, 1979, Kodak got some very good news. The previous year,

Berkey had won an antitrust lawsuit against Kodak, having accused Kodak

of using its monopoly wrongfully by introducing a new camera and film

system without giving competitors advance notice. Chief Judge Irving

Kaufman of the Court of Appeals for the Second Circuit, the legendary Tru-

man appointee who presided over the Rosenberg spy trial during the early

1950s, issued a 121-page opinion upending that decision, reversing almost

the entire $81.4 million damages award and ordering a new trial.

Citing numerous errors by the trial judge in his interpretation of the

law, the Second Circuit ruled, in what became known as a seminal anti-

trust opinion, that a company does not violate the Sherman Antitrust

Act by “simply . . . reaping the competitive rewards attributable to its

size.”1 In language that must have resonated at Polaroid, as it burst a

bubble at Berkey, Kaufman held that the antitrust laws had been misap-

plied in the case and that “the mere possession of monopoly power” was

not necessarily illegal.2 The appeals court rejected Berkey’s contention

that the antitrust laws required advance notice of the change in film sys-

tem. “It is the possibility of success in the marketplace, attributable to

superior performance, that provides the incentives on which the proper

functioning of our competitive economy rests,” Kaufman wrote, and a

“pre-disclosure” requirement would take away a benefit derived from

developing superior products.3 While Berkey pledged to seek review of

this decision in the U.S. Supreme Court, it was clear that Kodak had

won a massive victory.4After the Supreme Court declined to consider

Berkey’s petition for review of the Second Circuit’s decision, the case

was eventually settled for $6.8 million and was never retried.5

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A Triumph of Genius

290

While Kodak celebrated its victory, Polaroid’s lawyers prepared for

the long-planned meeting on depositions with Land, set for that same

week. They would brief him on the status of the lawsuit and explain

what he had to do to prepare himself for deposition. Up to that point,

Kerr had briefly met with Land just twice. None of the lawyers involved

could, even now, predict how Land was going to react to the disciplines

of the witness process, from the preparation to the actual examination. He

would have to exercise considerable self-control and demonstrate thor-

ough comprehension of the immensely technical matters involved. There

was no doubt that Land could handle the latter. But Land’s tendency to

stubbornly go his own way was cause for considerable anxiety over the

former. How he would comport himself was still an open question over

which many hours of sleep were likely lost by Peck and his crew.

The meeting took place on June 27. Joining Kerr and Land were

Mikulka, Peck, Ford, Joan Clark, and Nan Chequer, who took notes.6

Chequer had been working for months with Holly Perry to prepare Land

for his coming ordeal, but the legal team knew nothing about the details

of this preparatory work. (See Fig. 16-1.)

Kerr spent the first hour providing Land with an overview of what

had transpired during the years of discovery and litigation. Land asked

about the outlook for a trial. Kerr explained that, while a jury trial had

been an option, both parties had adopted the conventional thinking of pat-

ent litigators at the time that a bench trial would be preferable. He stated

that he expected it to last about eight weeks, although Kodak predicted

it would take as long as twelve. If the parties could “clean up” discovery

in early 1980, Kerr hoped to get Judge Nelson to try the case before the

end of that year. That meant a decision would come at the end of 1981.

An appeal would take at least another year, so the earliest possible date

for a final decision from the appellate court would be late 1982. Land

worried about the appeals process dragging on since only Kodak had the

“time and the money to do it all over.” When Land asked about the merits

of the suit, Kerr told him that “Polaroid has a better than even chance to

have some of . . . [its] patents declared valid [and] infringed.” Kerr also

advised Land, however, that the “prior art is close” on some patents, for

example, with respect to Rogers’ Excedrin patents where some of Land’s

“earlier patents hint at [an] integral film.” Notwithstanding this situation,

“no fatal infirmity [exists] in any of our patents,” Kerr concluded.7

After a break for lunch, Kerr explained that Land would be asked to

explain in his own words, as opposed to the technical language of the

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