The Cross-Examination

• Author: Ronald K. Fierstein
• Profession: Lawyer on the team of litigators from the prestigious patent law firm of Fish & Neave
• Pages: 369-387

369

CHAPT ER 21

THE CROSS-EXAMINATION

As Frank Carr rose from his chair to begin the cross-examination of Land,

his objective was clear. At the very least, he needed to poke as many holes

as possible in Land’s highly effective testimony. He could also hope to

trap Land into making a damaging admission or perhaps provoke a loss

of temper or composure that might tarnish Land’s likability or credibility.

Kodak’s trial counsel was certainly well prepared for this moment. Carr

had studied instant photography, including Polaroid’s patents, for more

than twelve years. He had written opinion letters for Kodak, laying out

in detail his arguments as to why each of the patents now being litigated

was either invalid or not infringed by Kodak’s products or both. He had

also supervised or consulted on litigations in several foreign jurisdictions

seeking either to invalidate or cancel the overseas counterparts to several

of the patents in this suit. And he had conducted long, detailed, and con-

tentious depositions of each of Polaroid’s key inventors, including twelve

full days with Land.

Land’s experience from those protracted depositions, however, gave

him an edge; he knew how Carr worked and thought, and he had a strong

sense of Carr’s relatively limited (as compared with Land’s) understanding

of the technology, as well as his positions on the issues. Given the compre-

hensive nature of Land’s deposition examination, it was unlikely that Carr

could spring any nasty surprises on him. The two men were prepared for a

battle that might well determine the outcome of the years of litigation.

Carr began by advancing Kodak’s core arguments—that the inven-

tions covered by Polaroid’s patents, including Land’s, were merely old

and known techniques applied to new circumstances and that Polaroid

had developed a practice of patenting every idea or concept that arose in

its labs, regardless of its merit or the quantum of invention involved. He

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A Triumph of Genius

370

began by showing Land the first paper he had authored on the subject of

one-step photography back in 1947, believing it covered several of the

basic elements of instant photography that would later appear in every

instant system released.

Carr asked: “Do I understand it correctly that in visualizing the con-

cepts, as you did in that first paper in 1947, you were utilizing mentally

and otherwise in the laboratory principles and materials which were then

already known in photography . . . ?”1 Land answered philosophically: “As

it has been said of many great processes, they certainly stand on the shoul-

ders of processes that preceded them.” Carr was not satisfied with Land’s

response and tried to get a definitive answer. “Your answer is ‘yes’?” he

shot back. “No. No,” Land repeated, “because the word ‘using’ is an ambig-

uous term. . . . You asked if I were using known processes. I was employ-

ing some old processes as the basis of generating new ones,” he explained.

“But as far as the basic principles of photography, you weren’t creating

any new ones, were you?” Carr persisted, still sparring gently. “I think it

depends on how you define basic principles,” Land began, as he offered a

detailed response, concluding with the observation that “without some new

principles, [one-step photography] couldn’t have come about.”2

Carr then went after Polaroid’s alleged profligate patent policy, ask-

ing Land whether in the early days of his research, “as you came upon a

useful thought, was it your practice to get a patent application on file?”3

“You can’t file a patent on a thought,” Land responded. “It has to be an

operating mechanism,” he told the court. Carr then offered into evidence a

collection of seven early Land patents, each of which had expired before

the lawsuit had commenced. He took Land through each of them, trying

to pin him down on what the covered invention was. They all apparently

related to the basic instant film unit structure of using a pod to contain the

processing composition, with some relating to various aspects of stabiliz-

ing a sepia image. Carr could not have been unhappy when it eventually

became clear that, even for the inventor, distinguishing between the vari-

ous patents in terms of the specific invention they actually covered and

claimed was no easy task.

Next, the cross-examination focused on Kodak’s claim that many of

the steps in various instant processes were similar to those in conven-

tional photography and that even between the various one-step systems—

sepia, black-and-white, and color imaging, or peel-apart and integral film

units—the problems confronted were the same or similar. Specifically, he

took Land through some diffusion transfer processes that existed as early

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