The Battle Is Joined

• Author: Ronald K. Fierstein
• Profession: Lawyer on the team of litigators from the prestigious patent law firm of Fish & Neave
• Pages: 235-250

235

CHAPTER 12

THE BATTLE IS JOINED

With the legal issues now drawn, the lawsuit entered the pretrial discov-

ery phase, during which both parties try to secure information from each

other to bolster their respective cases. Almost immediately, interrogato-

ries were served. These are written questions, usually in many multiple

parts, that require written answers. Simultaneously, requests were made

for the other side to produce documents from within its files that per-

tained to the various factual issues in the suit. Later, depositions would be

held at which various company engineers and executives would sit, some-

times for days at a time, responding to questions posed by the other side.

While each of these procedures is supposed to be a means of discovering

the facts of the case, they may also be wielded as strategic weapons in that

they impose varying degrees and forms of burden on the opponent.

Everyone knew that it would be a protracted and acrimonious strug-

gle. Even so, the litigation had an incidental benefit to Polaroid—an

intimidating effect on the plans of other companies to enter the instant

photography market, particularly those other camera manufacturing

companies that had intended to take advantage of Kodak’s previously

announced plans to license camera manufacturers to make products that

would use its instant film. By the early summer of 1976, Modern Pho-

tography noted that the “rush to ‘sign up’ among many Japanese camera

manufacturers . . . was cut to a tiny trickle.”1 Other potential entrants

into the instant photography market—Germany’s Agfa-Gevaert and Fuji

Photo Film Co.—continued to show interest in the field but also took

note of the lawsuit in delaying their plans.2

Meanwhile, Kodak was having other problems with respect to its

launch. In early September, two of Kodak’s top executives, Walter Fal-

lon and Executive Vice President Colby Chandler, admitted to a group of

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A Triumph of Genius

236

analysts that production problems with the EK-4 and EK-6 cameras were

being addressed, assuring them that there would be an “adequate supply”

for the holiday buying season.3 On September 10, Kodak announced that

it would not be introducing the high-end model in its camera series, the

EK-8, in 1976 as previously planned. Kodak explained it was “deferring

those plans,” ostensibly to concentrate on the lower end of the market

where its EK-4 and EK-6 competed with Polaroid’s Pronto model.4

More alarmingly, hints about potential defects in Kodak’s PR-10 film

started to surface. Consumer testing seemed to indicate that there was

a question concerning the stability of the prints when exposed to light.5

In fact, Consumer Reports suggested that Kodak’s instant film might be

useful only for photo albums or storage in a drawer, and could not be

displayed.6 This problem received widespread publicity, in the general

media as well as in the photographic industry press. Stories spread about

Polaroid executives who “get a kick out of taping Kodak prints to their

office windows, then exhibiting the results to visitors [because] in a few

days, the prints are all but obliterated.”7 Publicly, Kodak was defiant in its

defense and asserted that “the stability of Kodak instant prints is entirely

satisfactory when such prints are handled, displayed or stored in the usual

variety of home and office situations.”8 Yet when Kodak conducted its

own testing, its instant film rated “poor” in its stability to light, whereas

Polaroid’s rated “good,” a result that engendered front-page headlines in

the Rochester newspaper.9

Despite Fallon’s claim that Kodak’s new instant products “could very

well be the most thoroughly tested products Kodak has ever produced,”10

there was actually some talk about them failing altogether. One “major”

New York camera dealer was reported as saying “lots of people are buy-

ing Kodak instants because they think they might flop. They want to own

one as a curiosity . . . as a kind of Edsel, just in case Kodak doesn’t make

it.”11 An item in Newsweek noted: “Eastman Kodak may dominate the

$6 billion-a-year photography business in Olympian fashion, but when it

comes to innovation the company has had an embarrassing tendency to

lose focus [allowing] Polaroid [to] grab . . . a 30-year lead in the instant

photography field.”12 The reaction on Wall Street was a steady drop in

Kodak’s stock price.

In contrast, the financial news for Polaroid was nothing but posi-

tive. Its 1976 third-quarter earnings were projected to be up fifty percent

over the previous year, and more analysts began recommending its stock,

which was trading near its twelve-month high.13 Julius Silver made sure

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