Chapter 11 One Free Bite

AMONG THE THOUSANDS of young scientists who were doingvery well in the research-and-development programs ofAmerican companies in the fall of 1962 was one named DonaldW. Wohlgemuth, who was working for the B. F. GoodrichCompany, in Akron, Ohio. A 1954 graduate of the University ofMichigan, where he had taken the degree of Bachelor ofScience in chemical engineering, he had gone directly from theuniversity to a job in the chemical laboratories of Goodrich, ata starting salary of three hundred and sixty-five dollars amonth. Since then, except for two years spent in the Army, hehad worked continuously for Goodrich, in various engineeringand research capacities, and had received a total of fifteensalary increases over the six and a half years. In November,1962, as he approached his thirty-first birthday, he was earning$10,644 a year. A tall, self-contained, serious-looking man ofGerman ancestry, whose horn-rimmed glasses gave him anowlish expression, Wohlgemuth lived in a ranch house inWadsworth, a suburb of Akron, with his wife and theirfifteen-month-old daughter. All in all, he seemed to be theyoung American homme moyen réussi to the point ofboredom. What was decidedly not routine about him, though,was the nature of his job; he was the manager of Goodrich’sdepartment of space-suit engineering, and over the past years,in the process of working his way up to that position, he hadhad a considerable part in the designing and construction ofthe suits worn by our Mercury astronauts on their orbital andsuborbital flights.
Then, in the first week of November, Wohlgemuth got aphone call from an employment agent in New York, whoinformed him that the executives of a large company in Dover,Delaware, were most anxious to talk to him about thepossibility of his taking a job with them. Despite the caller’sreticence—a trait common among employment agents makingfirst approaches to prospective employees—Wohlgemuth instantlyknew the identity of the large company. The International LatexCorporation, which is best known to the public as a maker ofgirdles and brassiéres, but which Wohlgemuth knew to be alsoone of Goodrich’s three major competitors in the space-suitfield, is situated in Dover. He knew, further, that Latex hadrecently been awarded a subcontract, amounting to somethree-quarters of a million dollars, to do research anddevelopment on space suits for the Apollo, orman-on-the-moon, project. As a matter of fact, Latex had wonthis contract in competition with Goodrich, among others, andwas thus for the moment much the hottest company in thespace-suit field. On top of that, Wohlgemuth was somewhatdiscontented with his situation at Goodrich; for one thing, hissalary, however bountiful it might seem to many thirty-year-olds,was considerably below the average for Goodrich employees ofhis rank, and, for another, he had been turned down not longbefore by the company authorities when he asked forair-conditioning or filtering to keep dust out of the plant areaallocated to space-suit work. Accordingly, after makingarrangements by phone with the executives mentioned by theemployment agent—and they did indeed prove to be Latexmen—Wohlgemuth went to Dover the following Sunday.
He stayed there a day and a half, borrowing Monday fromvacation time that was due him from Goodrich, and gettingwhat he subsequently described as “a real red-carpettreatment.” He was taken on a tour of the Latexspace-suit-development facilities by Leonard Shepard, director ofthe company’s Industrial Products Division. He was entertainedat the home of Max Feller, a Latex vice-president. He wasshown the Dover housing situation by another companyexecutive. Finally, before lunch on Monday, he had a talk withall three of the Latex executives, following which—asWohlgemuth later described the scene in court—the three“removed themselves to another room for approximately tenminutes.” When they reappeared, one of them offeredWohlgemuth the position of manager of engineering for theIndustrial Products Division, which included responsibility forspace-suit development, at an annual salary of $13,700, effectiveat the beginning of December. After getting his wife’s approvalby telephone—and it was not hard to get, since she wasoriginally from Baltimore and was delighted at the prospect ofmoving back to her own part of the world—Wohlgemuthaccepted. He flew back to Akron that night. First thing Tuesdaymorning, Wohlgemuth confronted Carl Effler, his immediate bossat Goodrich, with the news that he was quitting at the end ofthe month to take another job.
“Are you kidding?” Effler asked.
“No, I am not,” Wohlgemuth replied.
Following this crisp exchange, which Wohlgemuth laterreported in court, Effler, in the time-honored tradition ofbereaved bosses, grumbled a bit about the difficulty of finding aqualified replacement before the end of the month. Wohlgemuthspent the rest of the day putting his department’s papers inorder and clearing his desk of unfinished business, and thenext morning he went to see Wayne Galloway, a Goodrichspace-suit executive with whom he had worked closely and hadbeen on the friendliest of terms for a long time; he said laterthat he felt he owed it to Galloway “to explain to him my sideof the picture” in person, even though at the moment he wasnot under Galloway’s supervision in the company chain ofcommand. Wohlgemuth began this interview by rathermelodramatically handing Galloway a lapel pin in the form of aMercury capsule, which had been awarded to him for his workon the Mercury space suits; now, he said, he felt he was nolonger entitled to wear it. Why, then, Galloway asked, was heleaving? Simple enough, Wohlgemuth said—he considered theLatex offer a step up both in salary and in responsibility.
Galloway replied that in making the move Wohlgemuth wouldbe taking to Latex certain things that did not belong tohim—specifically, knowledge of the processes that Goodrich usedin making space suits. In the course of the conversation,Wohlgemuth asked Galloway what he would do if he were toreceive a similar offer. Galloway replied that he didn’t know; forthat matter, he added, he didn’t know what he would do if hewere approached by a group who had a foolproof plan forrobbing a bank. Wohlgemuth had to base his decision onloyalty and ethics, Galloway said—a remark that Wohlgemuthtook as an accusation of bad faith. He lost his temper, he laterexplained, and gave Galloway a rash answer. “Loyalty andethics have their price, and International Latex has paid it,” hesaid.
After that, the fat was in the fire. Later in the morning, Efflercalled Wohlgemuth into his office and told him it had beendecided that he should leave the Goodrich premises as soon aspossible, staying around only long enough to make a list ofprojects that were pending and to go through certain otherformalities. In mid-afternoon, while Wohlgemuth was occupiedwith these tasks, Galloway called him and told him that theGoodrich legal department wanted to see him. In the legaldepartment, he was asked whether he intended to useconfidential information belonging to Goodrich on behalf ofLatex. According to the subsequent affidavit of a Goodrichlawyer, he replied—again rashly—“How are you going to proveit?” He was then advised that he was not legally free to makethe move to Latex. While he was not bound to Goodrich bythe kind of contract, common in American industry, in whichan employee agrees not to do similar work for any competingcompany for a stated period of time, he had, on his returnfrom the Army, signed a routine paper agreeing “to keepconfidential all information, records, and documents of thecompany of which I may have knowledge because of myemployment”—something Wohlgemuth had entirely forgotten untilthe Goodrich lawyer reminded him. Even if he had not madethat agreement, the lawyer told him now, he would beprevented from going to work on space suits for Latex byestablished principles of trade-secrets law. Moreover, if hepersisted in his plan, Goodrich might sue him.
Wohlgemuth returned to his office and put in a call to Feller,the Latex vice-president he had met in Dover. While he waswaiting for the call to be completed, he talked with Effler, whohad come in to see him, and whose attitude toward hisdefection seemed to have stiffened considerably. Wohlgemuthcomplained that he felt at the mercy of Goodrich, which, itseemed to him, was unreasonably blocking his freedom ofaction, and Effler upset him further by saying that what hadhappened during the past forty-eight hours could not beforgotten and might well affect his future with Goodrich.
Wohlgemuth, it appeared, might be sued if he left and scornedif he didn’t leave. When the Dover call came through,Wohlgemuth told Feller that in view of the new situation hewould be unable to go to work for Latex.
That evening, however, Wohlgemuth’s prospects seemed totake a turn for the better. Home in Wadsworth, he called thefamily dentist, and the dentist recommended a local lawyer.
Wohlgemuth told his story to the lawyer, who thereuponconsulted another lawyer by phone. The two counsellors agreedthat Goodrich was probably bluffing and would not really sueWohlgemuth if he went to Latex. The nextmorning—Thursday—officials of Latex called him back to assurehim that their firm would bear his legal expenses in the eventof a lawsuit, and, furthermore, would indemnify him against anysalary losses. Thus emboldened, Wohlgemuth delivered twomessages within the next couple of hours—one in person andone by phone. He told Effler what the two lawyers had toldhim, and he called the legal department to report that he hadnow changed his mind and was going to work at InternationalLatex after all. Later that day, after completing the cleanup jobin his office, he left the Goodrich premises for good, taking withhim no documents.
The following day—Friday—R. G. Jeter, general counsel ofGoodrich, telephoned Emerson P. Barrett, director of industrialrelations for Latex, and spoke of Goodrich’s concern for itstrade secrets if Wohlgemuth went to work there. Barrett repliedthat although “the work for which Wohlgemuth was hired wasdesign and construction of space suits,” Latex was notinterested in learning any Goodrich trade secrets but was “onlyinterested in securing the general professional abilities of Mr.
Wohlgemuth.” That this answer did not satisfy Jeter, orGoodrich, became manifest the following Monday. That evening,while Wohlgemuth was in an Akron restaurant called theBrown Derby, attending a farewell dinner in his honor given byforty or fifty of his friends, a waitress told him that there wasa man outside who wanted to see him. The man was adeputy sheriff of Summit County, of which Akron is the seat,and when Wohlgemuth came out, the man handed him twopapers. One was a summons to appear in the Court ofCommon Pleas on a date a week or so off. The other was acopy of a petition that had been filed in the same court thatday by Goodrich, praying that Wohlgemuth be permanentlyenjoined from, among other things, disclosing to anyunauthorized person any trade secrets belonging to Goodrich,and “performing any work for any corporation … other thanplaintiff, relating to the design, manufacture and/or sale ofhigh-altitude pressure suits, space suits and/or similar protectivegarments.”
THE need for the protection of trade secrets was fullyrecognized in the Middle Ages, when they were so jealouslyguarded by the craft guilds that the guilds’ employees wererigorously prevented from changing jobs. Laissez-faire industrialsociety, since it emphasizes the principle that the individual isentitled to rise in the world by taking the best opportunity heis offered, has been far more lenient about job-jumping, butthe right of an organization to keep its secrets has survived. InAmerican law, the basic commandment on the subject was laiddown by Justice Oliver Wendell Holmes in connection with a1905 Chicago case. Holmes wrote, “The plaintiff has the right tokeep the work which it has done, or paid for doing, to itself.
The fact that others might do similar work, if they wished, doesnot authorize them to steal plaintiff’s.” This admirably downright,if not highly sophisticated, ukase has been cited in almost everytrade-secrets case that has come up since, but over the years,as both scientific research and industrial organization havebecome infinitely more complex, so have the questions of what,exactly, constitutes a trade secret, and what constitutes stealingit. The American Law Institute’s “Restatement of the Law ofTorts,” an authoritative text issued in 1939, grapples manfullywith the first question by stating, or restating, that “a tradesecret may consist of any formula, pattern, device, orcompilation of information which is used in one’s business, andwhich gives him an opportunity to obtain an advantage overcompetitors who do not know or use it.” But in a case heardin 1952 an Ohio court decided that the Arthur Murray methodof teaching dancing, though it was unique and was presumablyhelpful in luring customers away from competitors, was not atrade secret. “All of us have ‘our method’ of doing a millionthings—our method of combing our hair, shining our shoes,mowing our lawn,” the court mused, and concluded that atrade secret must not only be unique and commercially helpfulbut also have inherent value. As for what constitutes thievery oftrade secrets, in a proceeding heard in Michigan in 1939, inwhich the Dutch Cookie Machine Company complained that oneof its former employees was threatening to use its highlyclassified methods to make cookie machines on his own, thetrial court decided that there were no fewer than three secretprocesses by which Dutch Cookie machines were made, andenjoined the former employee from using them in any manner;however, the Michigan Supreme Court, on appeal, found thatthe defendant, although he knew the three secrets, did not planto use them in his own operations, and, accordingly, it reversedthe lower court’s decision and vacated the injunction.
And so on. Outraged dancing teachers, cookie-machinemanufacturers, and others have made their way throughAmerican courts, and the principles of law regarding theprotection of trade secrets have become well established; anydifficulty arises chiefly in the application of these principles toindividual cases. The number of such cases has been risingsharply in recent years, as research and development by privateindustry have expanded, and a good index to the rate of suchexpansion is the fact that eleven and a half billion dollars wasspent in this work in 1962, more than three times the figurefor 1953. No company wants to see the discoveries producedby all that money go out of its doors in the attaché cases, oreven in the heads, of young scientists bound for greenerpastures. In nineteenth-century America, the builder of a bettermousetrap was supposed to have been a cynosure—provided,of course, that the mousetrap was properly patented. In thosedays of comparatively simple technology, patents covered mostproprietary rights in business, so trade-secrets cases were rare.
The better mousetraps of today, however, like the processesinvolved in outfitting a man to go into orbit or to the moon,are often unpatentable.
Since thousands of scientists and billions of dollars might beaffected by the results of the trial of Goodrich v. Wohlgemuth,it naturally attracted an unusual amount of public attention. InAkron, the court proceedings were much discussed both in thelocal paper, the Beacon Journal, and in conversation. Goodrichis an old-line company, with a strong streak of paternalism inits relations with its employees, and with strong feelings aboutwhat it regards as business ethics. “We were exceptionally upsetby what Wohlgemuth did,” a Goodrich executive of longstanding said recently. “In my judgment, the episode causedmore concern to the company than anything that hashappened in years. In fact, in the ninety-three years thatGoodrich has been in business, we had never before entered asuit to restrain a former employee from disclosing trade secrets.
Of course, many employees in sensitive positions have left us.
But in those cases the companies doing the hiring haverecognized their responsibilities. On one occasion, a Goodrichchemist went to work for another company undercircumstances that made it appear to us that he was going touse our methods. We talked to the man, and to his newemployer, too. The upshot was that the competing companynever brought out the product it had hired our man to workon. That was responsible conduct on the part of both employeeand company. As for the Wohlgemuth case, the localcommunity and our employees were a bit hostile toward us atfirst—a big company suing a little guy, and so on. But theygradually came around to our point of view.”
Interest outside Akron, which was evidenced by a small floodof letters of inquiry about the case, addressed to the Goodrichlegal department, made it clear that Goodrich v. Wohlgemuthwas being watched as a bellwether. Some inquiries were fromcompanies that had similar problems, or anticipated havingthem, and a surprising number were from relatives of youngscientists, asking, “Does this mean my boy is stuck in hispresent job for the rest of his life?” In truth, an importantissue was at stake, and pitfalls awaited the judge who heardthe case, no matter which way he decided. On one side wasthe danger that discoveries made in the course of corporateresearch might become unprotectable—a situation that wouldeventually lead to the drying up of private research funds. Onthe other side was the danger that thousands of scientistsmight, through their very ability and ingenuity, find themselvespermanently locked in a deplorable, and possiblyunconstitutional, kind of intellectual servitude—they would bebarred from changing jobs because they knew too much.
THE trial—held in Akron, presided over by Judge Frank H.
Harvey, and conducted, like all proceedings of its type, withouta jury—began on November 26th and continued throughDecember 12th, with a week’s recess in the middle;Wohlgemuth, who was supposed to have started work at Latexon December 3rd, remained in Akron under a voluntaryagreement with the court, and testified extensively in his owndefense. Injunction, the form of relief that was sought byGoodrich and the chief form of relief that is available to anyonewhose secrets have been stolen, is a remedy that originated inRoman law; it was anciently called “interdict,” and is still socalled in Scotland. What Goodrich was asking, in effect, wasthat the court issue a direct order to Wohlgemuth not onlyforbidding him to reveal Goodrich secrets but also forbiddinghim to take employment in any other company’s space-suitdepartment. Any violation of such an order would be contemptof court, punishable by a fine, or imprisonment, or both. Justhow seriously Goodrich viewed the case became clear when itsteam of lawyers proved to be headed by Jeter himself, who, asvice-president, secretary, the company’s ultimate authority onpatent law, general law, employee relations, union relations, andworkmen’s compensation, and Lord High Practically EverythingElse, had not found time to try a case in court himself for tenyears. The chief defense counsel was Richard A. Chenoweth, ofthe Akron law firm of Buckingham, Doolittle & Burroughs,which Latex, though it was not a defendant in the action, hadretained to handle the case, in fulfillment of its promise toWohlgemuth.
From the outset, the two sides recognized that if Goodrichwas to prevail, it had to prove, first, that it possessed tradesecrets; second, that Wohlgemuth also possessed them, and thata substantial peril of disclosure existed; and, third, that it wouldsuffer irreparable injury if injunctive relief was not granted. Onthe first point, Goodrich attorneys, through their questioning ofEffler, Galloway, and one other company employee, set out toestablish that Goodrich had a number of unassailable space-suitsecrets, among them a way of making the hard shell of aspace helmet, a way of making the visor seal, a way of makinga sock ending, a way of making the inner liner of gloves, away of fastening the helmet onto the rest of the suit, and away of applying a wear-resistant material called neoprene totwo-way-stretch fabric. Wohlgemuth, through his counsel’scross-examinations, sought to show that none of theseprocesses were secrets at all; for example, in the case of theneoprene process, which Effler had described as “a very criticaltrade secret” of Goodrich, defense counsel brought out evidencethat a Latex product that is neither secret nor intended to beworn in outer space—the Playtex Golden Girdle—was made oftwo-way-stretch fabric with neoprene applied to it, and, toemphasize the point, Chenoweth introduced a Playtex GoldenGirdle for all to see. Nor did either side neglect to bring intocourt a space suit, in each instance inhabited. The Goodrichsuit, a 1961 model, was intended to demonstrate what thecompany had achieved by means of research—research that itdid not want to see compromised through the loss of itssecrets. The Latex suit, also a 1961 model, was intended toshow that Latex was already ahead of Goodrich in space-suitdevelopment and would therefore have no interest in stealingGoodrich secrets. The Latex suit was particularly bizarre-looking,and the Latex employee who wore it in court looked almostexcruciatingly uncomfortable, as if he were unaccustomed to theair of earth, or of Akron. “His air tubes weren’t hooked up,and he was hot,” the Beacon Journal explained next day. Atany rate, after he had sat suffering for ten or fifteen minuteswhile defense counsel questioned a witness about his costume,he suddenly pointed in an agonized way to his head, and thecourt record of what followed, probably unique in the annals ofjurisprudence, reads like this:
MAN IN THE SPACE SUIT: May I take this off? (Helmet).…THE COURT: All right.
The second element in Goodrich’s burden of proof—thatWohlgemuth was privy to Goodrich secrets—was fairly quicklydealt with, because Wohlgemuth’s lawyers conceded that hardlyanything the company knew about space suits had been keptfrom him; they based their defense on, first, the unquestionedfact that he had taken no papers away with him and, second,the unlikelihood that he would be able to remember the detailsof complex scientific processes, even if he wanted to. On thethird element—the matter of irreparable injury—Jeter pointedout that Goodrich, which had made the first full-pressure flyingsuit in history, for the late Wiley Post’s high-altitude experimentsin 1934, and which had since poured vast sums into space-suitresearch and development, was the unquestioned pioneer andhad up to then been considered the leader in the field; hetried to paint Latex, which had been making full-pressure suitsonly since the mid-fifties, as a parvenu with the nefarious planof cashing in on Goodrich’s years of research by hiringWohlgemuth. Even if the intentions of Latex and Wohlgemuthwere the best in the world, Jeter contended, Wohlgemuthwould inevitably reveal Goodrich secrets in the course ofworking in Latex’s space-suit department. In any event, Jeterwas unwilling to assume good intentions. As evidence of badones, there was, on the part of Latex, the fact that the firmhad deliberately sought out Wohlgemuth, and, on the part ofWohlgemuth, the statement he had made to Galloway about theprice of loyalty and ethics. The defense disputed the contentionthat a disclosure of secrets would be inevitable, and, of course,denied evil intentions on anyone’s part. It rounded out its casewith a statement made in court under oath by Wohlgemuth: “Iwill not reveal [to International Latex] any items which in myown mind I would consider to be trade secrets of the B. F.
Goodrich Company.” This, of course, was cold comfort toGoodrich.
Having heard the evidence and the lawyers’ summations,Judge Harvey reserved decision until a later date and issuedan order temporarily forbidding Wohlgemuth to reveal thealleged secrets or to work in the Latex space-suit program; hecould go on the Latex payroll, but he had to stay out of spacesuits until the court’s decision was handed down. Inmid-December, Wohlgemuth, leaving his family behind, went toDover and began working for Latex on other products; early inJanuary, by which time he had succeeded in selling his housein Wadsworth and buying one in Dover, his family joined himat his new stand.
IN Akron, meanwhile, the lawyers had at each other in briefsintended to sway Judge Harvey. Various fine points of lawwere debated, learnedly but inconclusively; yet as the briefswore on, it became increasingly clear that the essence of thecase was quite simple. For all practical purposes, there was nocontroversy over the facts. What remained in controversy wasthe answers to two questions: First, should a man be formallyrestrained from revealing trade secrets when he has not yetcommitted any such act, and when it is not clear that heintends to? And, secondly, should a man be prevented fromtaking a job simply because the job presents him with uniquetemptations to break the law? Having scoured the lawbooks,counsel for the defense found exactly the text quotation theywanted in support of the argument that both questions shouldbe answered in the negative. (Unlike the decisions of othercourts, the general statements of the authors of law textbookshave no official standing in any court, but by using themjudiciously an advocate can express his own opinions insomeone else’s words and buttress them with bibliographicalreferences.) The quotation was from a text entitled “TradeSecrets,” which was written by a lawyer named Ridsdale Ellisand published in 1953, and it read, in part, “Usually it is notuntil there is evidence that the employee [who has changedjobs] has not lived up to his contract, expressed or implied, tomaintain secrecy, that the former employer can take action. Inthe law of torts there is the maxim: Every dog has one freebite. A dog cannot be presumed to be vicious until he hasproved that he is by biting someone. As with a dog, theformer employer may have to wait for a former employee tocommit some overt act before he can act.” To counter thisdoctrine—which, besides being picturesque, appeared to have acrushingly exact applicability to the case underdispute—Goodrich’s lawyers came up with a quotation of theirown from the very same book. (“Ellis on trade secrets,” as thelawyers referred to it in their briefs, was repeatedly used bythe two sides to belabor each other, for the good reason thatit was the only text on the subject available in the SummitCounty law library, where both sides did the bulk of theirresearch.) In support of their cause, Goodrich counsel foundthat Ellis had said, in connection with trade-secrets cases inwhich the defendant was a company accused of luring awayanother company’s confidential employee: “Where theconfidential employee left to enter defendant’s employment, aninference can be drawn to supplement other circumstantialevidence that the latter employment was stimulated by a desireby the defendant to learn plaintiff’s secrets.”
In other words, Ellis apparently felt that when thecircumstances look suspicious, one free bite is not permitted.
Whether he contradicted himself or merely refined his positionis a nice question; Ellis himself had died several years earlier,so it was not possible to consult him on the matter.
On February 20th, 1963, having studied the briefs anddeliberated on them, Judge Harvey delivered his decision, in theform of a nine-page essay fraught with suspense. To beginwith, the Judge wrote, he was convinced that Goodrich didhave trade secrets relative to space suits, and that Wohlgemuthmight be able to remember and therefore be able to disclosesome of them to Latex, to the irreparable injury of Goodrich.
He declared, further, that “there isn’t any doubt that the Latexcompany was attempting to gain [Wohlgemuth’s] valuableexperience in this particular specialized field for the reason thatthey had this so-called ‘Apollo’ contract with the government,and there isn’t any doubt that if he is permitted to work inthe space-suit division of the Latex company … he would havean opportunity to disclose confidential information of the B. F.
Goodrich Company.” Still further, Judge Harvey was convincedby the attitude of Latex, as this was evidenced by the conductof its representatives in court, that the company intended to tryto get Wohlgemuth to give it “the benefit of every kind ofinformation he had.” At this point in the opinion, thingscertainly looked black for the defense. However—and the Judgewas well down page 6 before he got to the “however”—whathe had concluded after studying the one-free-bite controversyamong the lawyers was that an injunction cannot be issuedagainst disclosure of trade secrets before such disclosure hasoccurred unless there is clear and substantial evidence of evilintent on the part of the defendant. The defendant in this case,the Judge pointed out, was Wohlgemuth, and if any evil intentwas involved, it appeared to be attributable to Latex ratherthan to him. For this reason, along with some technical ones,he wound up, “It is the view and the Order of this Court thatInjunction be denied against the defendant.”
Goodrich promptly appealed the decision, and the SummitCounty Court of Appeals, pending its own decision on the case,issued another restraining order, which differed from JudgeHarvey’s in that it permitted Wohlgemuth to do space-suit workfor Latex, but still forbade him to disclose Goodrich’s allegedtrade secrets. Accordingly, Wohlgemuth, with an initial victoryunder his belt but with a new legal struggle on his behalfahead, went to work in the Latex moon-suit shop.
Jeter and his colleagues, in their brief to the Court of Appeals,stated unequivocally that Judge Harvey had been wrong notonly in some of the technical aspects of his decision but in hisfinding that there must be evidence of bad faith on thedefendant’s part before an injunction can be granted. “Thequestion to be decided is not one of good or bad faith, but,rather, whether there is a threat or a likelihood that tradesecrets will be disclosed,” the Goodrich brief declaredroundly—and a little inconsistently, in view of all the time andeffort the company had expended on attempts to pin bad faithon both Latex and Wohlgemuth. Wohlgemuth’s lawyers, ofcourse, did not fail to point out the inconsistency. “It seemsstrange indeed that Goodrich should find fault with this findingof Judge Harvey,” they remarked in their brief. Quite clearly,they had conceived for Judge Harvey feelings so tender as toborder on the protective.
The decision of the Court of Appeals was handed down onMay 22nd. Written by Judge Arthur W. Doyle, with his twocolleagues of the court concurring, it was a partial reversal ofJudge Harvey. Finding that “there exists a present real threatof disclosure, even without actual disclosure,” and that “aninjunction may … prevent a future wrong,” the court grantedan injunction that restrained Wohlgemuth from disclosing toLatex any of the processes and information claimed as tradesecrets by Goodrich. On the other hand, Judge Doyle wrote,“We have no doubt that Wohlgemuth had the right to takeemployment in a competitive business, and to use hisknowledge (other than trade secrets) and experience for thebenefit of his new employer.” Plainly put, Wohlgemuth was atlast free to accept a permanent job doing space-suit work forLatex, provided only that he refrained from disclosing Goodrichsecrets in the course of his work.
NEITHER side carried the case above the Summit County Courtof Appeals—to the Ohio Supreme Court and, beyond that, tothe United States Supreme Court—so with the decision of theAppeals Court the Wohlgemuth case was settled. Public interestin it subsided soon after the trial was over, but professionalinterest continued to mount, and, of course, it mounted stillmore after the Appeals Court decision in May. In March, theNew York City Bar Association, in collaboration with theAmerican Bar Association, had presented a symposium on tradesecrets, with the Wohlgemuth case as its focus. In the latermonths of that year, employers worried about loss of tradesecrets brought numerous suits against former employees,presumably relying on the Wohlgemuth decision as a precedent.
A year later there were more than two dozen trade-secretscases pending in the courts, the most publicized of them beingthe effort of E. I. du Pont de Nemours & Co. to prevent oneof its former research engineers from taking part in theproduction of certain rare pigments for the American Potash &Chemical Corporation.
It would be logical to suppose that Jeter might be worriedabout enforcement of the Appeals Court’s order—might beafraid that Wohlgemuth, working behind the locked door of theLatex laboratory, and perhaps nursing a grudge againstGoodrich, would take his one free bite in spite of the order, onthe assumption that he would not be caught. However, Jeterdidn’t look at things that way. “Until and unless we learnotherwise, we assume that Wohlgemuth and International Latex,both having knowledge of the court order, will comply with thelaw,” Jeter said after the case was concluded. “No specific stepsby Goodrich to police the enforcement of the order have beentaken, or are contemplated. However, it if should be violated,there are various ways in which we would be likely to find out.
Wohlgemuth, after all, is working with others, who come andgo. Out of perhaps twenty-five employees in constant touchwith him, it’s likely that one or two will leave Latex within acouple of years. Furthermore, you can learn quite a lot fromsuppliers who deal with both Latex and Goodrich; and alsofrom customers. However, I do not feel that the order will beviolated. Wohlgemuth has been through a lawsuit. It was quitean experience for him. He now knows his responsibilities underthe law, which he may not have known before.”
Wohlgemuth himself said late in 1963 that since the conclusionof the case he had received a great many inquiries from otherscientists working in industry, the gist of their questions being,“Does your case mean that I’m married to my job?” He toldthem that they would have to draw their own conclusions.
Wohlgemuth also said that the court order had had no effecton his work in the Latex space-suit department. “Precisely whatthe Goodrich secrets are is not spelled out in the order, andtherefore I have acted as if all the things they alleged to besecrets actually are secrets,” he said. “Nevertheless, myefficiency is not impaired by my avoiding disclosure of thosethings. Take, for example, the use of polyurethane as an innerliner—a process that Goodrich claimed as a trade secret. Thatwas something Latex had tried previously and foundunsatisfactory. Therefore, it wasn’t planning to investigate furtheralong those lines, and it still isn’t, I am just as effective forLatex as if there had never been an injunction. However, I willsay this. If I were to get a better offer from some othercompany now, I’m sure I would evaluate the question verycarefully—which is what I didn’t do the last time.”
Wohlgemuth—the new, post-trial Wohlgemuth—spoke in anoticeably slow, tense way, with long pauses for thought, as ifthe wrong word might bring lightning down on his head. Hewas a young man with a strong sense of belonging to thefuture, and he looked forward to making, if he could, amaterial contribution to putting man on the moon. At the sametime, Jeter may have been right; he was also a man who hadrecently spent almost six months in the toils of the law, andwho worked, and would continue to work, in the knowledgethat a slip of the tongue might mean a fine, imprisonment, andprofessional ruin.