Technology In Society 21 (1999) 37–61 A battle of giants: the multiplicity of industrial R&D that produced high-strength aramid fibers Karel F. Mulder* Faculty of Technology and Society, Delft University of Technology, De Vries van Heystplantsoen 2, 2628 RZ Delft, The Netherlands Abstract There have been several long and expensive legal disputes on important results of industrial R&D. These disputes are often very destructive for all parties involved; the lawsuits are very expensive, market development for new products suffers from the uncertainty of uninterrupted supply, and the parties involved are often forced to publish technological and trade secrets, thereby helping third parties. This article analyses the R&D, starting shortly after World War II, that led to high strength/high tenacity aramid fibers in the 1970s and 80s. The development of these fibers led to an enormous patent litigation case between the chemical giants Du Pont (US) and AKZO (Europe). This paper will show that industrial research and development, especially pioneering research, is not so straightforward as is supposed in international patent law: often research findings cannot be covered easily and effectively with patents; “inventions” are often the result of research findings in various laboratories. Competitors can often improve on the product or the process, and thereby claim patent licenses. Therefore, patent rights are in practice more or less a matter of negotiation while the legal situation is often rather unclear. This paper will briefly describe how, amongst others, Du Pont, Monsanto, AKZO, and the Soviet VNIIV and VNIISV institutes contributed to the creation of various high performance aramid fibers. It will also describe how the patent litigation struggle between AKZO and Du Pont started, and will finally evaluate this battle of giants, which cost the parties about US$200 million only for lawyers, and probably a multiple of that amount to cover other expenses. 1999 Elsevier Science Ltd. All rights reserved. Keywords: Patent litigation; Industrial research; High performance fibers * Tel.: 31-15-278-1043; fax: 31-15-278-3177; e-mail: [email protected] 0160-791X/99/$ - see front matter 1999 Elsevier Science Ltd. All rights reserved. PII: S0160-791X(98)00036-0 38 K.F. Mulder/Technology In Society 21 (1999) 37–61 1. Introduction There have been several long and expensive legal disputes over important results that have evolved out of industrial R&D. Some well-known examples are the patent litigation cases between Polaroid and Kodak over the instant camera; the case between Alpex and Nintendo regarding video game graphics [1], and between Du Pont, Montecatini, Phillips, Hercules and Standard Oil of Indiana over poly- propylene [2,3]. Disputes over appropriation of industrial technologies are often destructive for all the involved parties. Lawsuits are expensive, market development for new products suffers from uncertainties of supply, and the parties are often forced to publish tech- nological and trade secrets—often beneficial only to competitive third parties. These conflicts cannot be satisfactorily explained in the rational economic terms whereby large industries generally formulate their strategy. This paper aims to elucidate the process by which these conflicts arise. It begins by analyzing the post-World War II R&D that led to the development in the 1970s and 1980s of high strength/high tenacity aramid1 fibers like Kevlar and Twaron2 in the 1970s and 1980s. The development of these fibers brought on patent litigation between the chemical giants Du Pont (US) and AKZO-Nobel (The Netherlands/Germany). From 1979 on, these two companies filed various suits against each other, finally reaching agreement in 1988. However, the animosity between these adversaries remained, and in the 1990s they filed suit again, this time alleging unfair trading practices. In some respects this paper is a simplification of reality: it deals only with Du Pont, Monsanto, AKZO, and two Soviet research institutes. In fact, several other corporations have contributed to this field of research, such as Celanese, ICI, Hoechst, Rhoˆne Poulenc, Teijin, and Asahi. The paper illustrates several key points: ț that industrial R&D, especially basic research, is not as straightforward as is sup- posed in international patent law; ț that research findings often cannot be covered easily and effectively with patents; ț that “inventions” frequently result from combinations of research findings, all of which are known. Moreover, although it might be hard to believe, there are numerous examples of similar research results that have been independently achieved at various disparate 1 Aramid fibers: aromatic polyamide fibers. Fibers are measured in denier, a traditional textile standard. If a fiber is 1 denier, its weight is 1 g for 9000 m of fiber. Fiber strength is measured in grams per denier (gpd). The strength in gpd means the maximum weight that a fiber can carry at break, divided by its denier number. The tenacity of a fiber is expressed by its modulus. The modulus is defined as the relative tension applied to a fiber (g/denier) divided by the relative increase in its length. Therefore, a 1-denier fiber with a length of 1 m, to which a force is applied of 1 g gravity, increasing this length by 10 cm, has a modulus of 10 g/denier. 2 Registered trademarks of Du Pont and AKZO-Nobel, respectively. K.F. Mulder/Technology In Society 21 (1999) 37–61 39 locations. Independent research frequently continues after the “invention” has been patented: competitors often improve on the product or the process, and then claim patent licenses. Therefore, in practice patent rights are more or less a matter of negotiation. This creates an opening for intimidation on the part of corporations that may try to scare off competitors simply by threatening litigation. Because the situation is so murky, corporate patent attorneys face a difficult job. They can be pressured to yield to the demands of researchers and managers who often assess legal situations in their own favor. However, serious trouble can arise even if they are able to make a proper judgment of patent positions regarding a specific technology. 2. Du Pont In the 1920s and 1930s new research had created a scientific basis for polymer technology [4]. The US company Du Pont was notably at the forefront of polymer science. The company had positioned itself at the center of a network of polymer scientists. Its main polymer scientist, Wallace H. Carothers, not only contributed enormously to polymer science, but also invented nylon and neoprene rubber [5].When Carothers was hired, his teachers, Roger Adams and Carl Marvel, also became Du Pont consultants. When war began, Du Pont arranged for the Jewish- Austrian refugee, Herman Mark, to become a consultant, and he was appointed a professor at Brooklyn Polytechnic [6]. Mark was also in regular contact with other corporations such as Dow Chemical, Shell, 3M and Monsanto Plastics [7]. However, he visited Du Pont about once a week, and the others about once a month [8]. Paul Flory was also in regular contact with Du Pont. He started his career at Du Pont’s nylon research labs in 1936.3 Nylon was a successful, shining example of industrial R&D. At Du Pont, the search focused on new nylons [10] and the research that ultimately resulted in nylon 3 These scientists all have to be ranked as belonging to the top of American polymer science: Mark had made a career in Europe. He had worked at the Kaiser Wilhelm Institut in Berlin, at IG Farben in Ludwigshafen, and had been a professor in Vienna. He played a profound role in the scientific controversies on Staudinger’s macromolecular theory. After World War II, he founded the first scientific journal on polymer science. In the 1960s, he was the editor of the Encyclopedia of Polymer Science. Flory left Du Pont in 1938. Afterward, he worked for Standard Oil and Goodyear. He also worked at the Mellon Institute, and was a professor at Cincinnati, Cornell, and Stanford Universities. His book on polymers [77] became the basic textbook for students of polymer science. He received the Nobel Prize in 1974. Flory died in 1985 [9]. Marvel and Adams were both professors at the University of Illinois. Carothers was a graduate student under them. In 1928, they began alternate monthly visits to Du Pont. Forty-six of Marvel’s Ph.D. students joined Du Pont. One, Salzberg, became head of Du Pont’s Chemical Department in the 1950s. Marvel was also a consultant for the Air Force program on heat resistant fibers in the 1950s. After his retirement in 1960, he worked at the University of Arizona. It is estimated that during his career he stayed at the Hotel Du Pont in Wilmington for 1320 nights (three and half years) while consulting with the corporation. Marvel died in 1987. 40 K.F. Mulder/Technology In Society 21 (1999) 37–61 typified the trust that Du Pont’s leadership placed in its chemists: “Better things for better living$through chemistry.”4 2.1. Low temperature polycondensation5 research Du Pont’s laboratory for new fiber R&D was the Textile Fibers Division’s Pion- eering Research Laboratory (hereinafter referred to as “Pioneering”). In October 1948, Pioneering manager Hale Charch, set out 11 goals for the future development of new fibers. Charch believed that Du Pont was at the beginning of a “synthetic textile revolution”. He stated: “As our basic knowledge of fiber properties is enlarged, we are truly approaching the time we can deliver fibers to predetermined specifi- cations” [11]. He believed that synthetic fibers would have great potential, and that Du Pont would be in front owing to its enormous technical lead over its competitors [12].