Land's Day in Court

• Author: Ronald K. Fierstein
• Profession: Lawyer on the team of litigators from the prestigious patent law firm of Fish & Neave
• Pages: 347-368

347

CHAPTER 20

LAND’S DAY IN COURT

Monday, October 5, 1981, was a sunny, cool, and crisp New England fall

day. The beloved Red Sox of sports-obsessed Boston had just completed

their sixty-third straight season without winning a World Series, but the

basketball Celtics, led by Larry Bird, were preparing to start another cam-

paign as reigning NBA champions. Ronald Reagan, the third president to

work in the Oval Office since the Polaroid v. Kodak lawsuit began, and

the sixth president to serve since Land first showed a prototype of SX-70

to his colleagues at Kodak in 1968, was only in his eighth month as the

fortieth American president. He had narrowly survived an assassination

attempt in March, had passed a twenty-five percent tax cut through Con-

gress in July, and had fired 12,000 federal air traffic controllers in August

when they struck in violation of a court order. His first Supreme Court

nominee, Sandra Day O’Connor, had been sworn in as the court’s first

female justice just ten days earlier.

Despite the nip in the air, Edwin H. Land emerged without a topcoat

from a nondescript Polaroid company van and walked up the steps and

into the federal courthouse wearing his customary three-piece suit.1 The

moment had finally come for Polaroid to have its day in court. The trial

was expected “to be one of the toughest corporate courtroom battles of the

1980s.”2 It had become Land’s personal crusade. He was angry with Kodak

not just because he believed it had wrongfully appropriated Polaroid’s tech-

nology but also because it sought to defend its conduct by denigrating the

work Land and his Polaroid colleagues had done.3 (See Fig. 20-1.)

The scene was set to open in courtroom three of the Boston federal

courthouse. The case had been reduced to ten patents a few days earlier

when Polaroid, at a pretrial hearing on September 28, announced its inten-

tion to withdraw its claims relating to the Crank patent.4 This decision

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A Triumph of Genius

348

was made based as much on the fact that Kodak had ceased manufac-

turing the cameras that employed this device as on the sober reality that

Polaroid had little faith in the viability of this particular patent and didn’t

want to taint the strength of the rest of its case by pursuing a patent that

might have insurmountable flaws.5

The trial was a monumental logistical and intellectual effort that was

carried out with superlative professionalism by both law firms. Nothing

was overlooked or taken for granted. Kerr had issued a memorandum

instructing all his witnesses and courtroom attendees to conduct them-

selves “quietly and with dignity,” to “remain impassive at all times,” and

to “not show any sign of excitement if Polaroid appears to make a point,

and do not show concern or distress if a point appears to have been made

against Polaroid.”6 Among other things, reading materials, dark glasses,

gum, and candy or eating of any kind were prohibited.

Judge Zobel had moved the case steadily through the end of discovery

and to trial with the same decisiveness and fearlessness she had already

exhibited in other cases that had come before her. Most notable was a dis-

pute concerning the strike of Boston school bus drivers the previous year,

which she grappled with by sending several drivers to jail for contempt of

court while declaring that the strike “was akin to anarchy and [it] cannot

and will not be tolerated.”7 Both sides had learned to not test her patience.

As sole arbiter of the case, Judge Zobel had little, if any, technical

education or background that would be useful in patent litigation. A sci-

ence columnist for the New York Times predicted that the trial would “be

a difficult one” for her, given that the “technical questions to be answered

are horrendously complex.”8 But both judges and juries were (and still

are) expected to render a verdict despite having little or no previous

knowledge of the technology involved. It is up to the lawyers to explain

that technology in terms a reasonably intelligent person can understand,

while avoiding deluging the court with unnecessary and confusing detail.

Such is the challenge and the true art of the patent litigator. Judge Zobel

entered the courtroom precisely at nine a.m., a diminutive figure with a

large white bow draped over the top of her black robe. She faced a formi-

dable congregation of lawyers, company executives, and reporters, each

of them with different expectations and concerns.

William K. Kerr knew this would be not only his last but perhaps

his most monumental appearance as a litigator. Kerr’s part in the trial

was to be limited since, once he had presented Polaroid’s opening state-

ment and led Land through his direct testimony, he had agreed to turn

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