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KEPNER-TREGOE, INC. v. EXECUTIVE DEVELOPMENT

December 13, 1999

KEPNER-TREGOE, INC., PLAINTIFF,
v.
EXECUTIVE DEVELOPMENT, INC., DEFENDANT.



The opinion of the court was delivered by: Greenaway, District Judge.

OPINION

This matter comes before the Court on the motion for summary judgment filed by defendant, Executive Development, Inc. ("EDI"), pursuant to Fed.R.Civ.P. 56(c), against plaintiff, Kepner-Tregoe, Inc. ("Kepner"). Both parties have submitted affidavits and statements of uncontested facts, pursuant to L.Civ.R. 56.1. For the following reasons, this Court shall grant EDI's motion for summary judgment.

INTRODUCTION

This is a copyright infringement action. Kepner specializes in strategic and operational decision-making. Since 1958, Kepner has marketed its management training programs and related instructional materials internationally. Kepner is the owner of, inter alia, U.S. Copyright Registration certificate No. A.-550,878 for its instructional materials referred to as GENCO II, and U.S. Copyright Registration certificate No. A-550,880 for its instructional materials referred to as APEX II.

EDI has published one or more works in the United States entitled "DECISION FOCUS". On July 15, 1997, Kepner instituted this action for copyright infringement against EDI, alleging that EDI's DECISION FOCUS materials infringe its registered copyrights for GENCO II and APEX II.

EDI filed its Answer and Counterclaim on September 19, 1997. In its Counterclaim, EDI alleges that Kepner commenced the present action for the purpose of monopolizing commerce in violation of the Sherman Antitrust Act. See 15 U.S.C. § 2 (1994).

On December 12, 1997, Kepner moved to dismiss EDI's counterclaim or, in the alternative, for summary judgment, on the ground that under the Noerr-Pennington doctrine,*fn1 Kepner is immune from antitrust liability for filing this infringement action. With its reply brief, Kepner submitted the Second Affidavit of Dean G. Bostock. EDI moved to strike that affidavit on the grounds that Kepner raised issues and presented factual material in its reply brief and accompanying affidavit that it did not raise in its initial brief.

On August 26, 1998, this Court granted Kepner's motion for summary judgment dismissing EDI's counterclaim and denying EDI's motion to strike. On May 17, 1999, EDI filed this motion seeking summary judgment on four separate grounds against Kepner. EDI alleges that each of the four grounds provides an independent and adequate basis for summary judgment regarding Kepner's copyright infringement claims. Specifically, EDI seeks summary judgment because:

  (1) Kepner's unexplained and inexcusable delay of
      more than twenty years before filing this lawsuit
      over claims that it first asserted back in 1975
      bars its claims under well-established laches
      doctrine;
  (2) Kepner's failure to establish any original
      content in its allegedly copyrighted materials
      beyond preexisting public domain (and thus
      unprotectable) materials defeats its claims;
  (3) Kepner's failure to produce evidence of EDI
      either copying or having access to its allegedly
      copyrighted materials defeats its claims; and
      because
  (4) Kepner's inability to establish the threshold
      element of any copyright case — what the
      allegedly copyrighted materials are — defeats its
      claims.

See Def.'s Br. at 1.

FACTS

In 1958, Drs. Charles Kepner and Benjamin Tregoe founded Kepner. Kepner has been in the business of providing courses that train employees and managers in how to make decisions and how to solve problems that occur in the workplace. Kepner offers its courses throughout the United States and in several other countries. Since its inception, Kepner has created a number of sets of written materials that are used by people who attend Kepner's courses. These materials are protected by copyright, and Kepner has obtained U.S. Copyright Registrations covering the materials.

The copyrighted materials, which Kepner alleges that EDI infringed, constitute those materials used for Kepner's courses known as APEX II and GENCO II. The Copyright Office issued Copyright registration certificates for APEX II and GENCO II in 1974. The only EDI materials, which are the subject of Kepner's infringement claim in this case are EDI's DECISION FOCUS materials and related software. The DECISION FOCUS materials relate to courses on problem-solving and decision-making skills. EDI's DECISION FOCUS materials, which were published in 1985, consist of an eighty-two (82) page participant's manual and related software.

Kepner claims that it obtained a copy of EDI's DECISION FOCUS software in May 1997. Kepner filed this complaint against EDI in July, 1997. Kepner claims further that it first obtained a copy of the DECISION FOCUS manual during discovery in this case. Set forth below is the comparison of Kepner and EDI materials that this court included in its August 26, 1998, dismissal of EDI's antitrust counterclaim:

KEPNER'S WORKSHEETS

  DECISION ANALYSIS WORKSHEET — COMPARISON OF
  ALTERNATIVES

Decision Statement

  Objectives
    Must
     Info Go/No
    Want
  Alternatives

POTENTIAL PROBLEM ANALYSIS WORKSHEET

KEPNER'S WORKSHEETS

  Specific Potential Problems
  Likely Causes
  Prevention —
    Take Preventive Action or Accept Risk
  Protection —
  Set Contingent Action or Accept Risk

KEPNER'S MATERIALS

SUMMARY OF SITUATION APPRAISAL

  Separate
  Set Priority or sequence

SUMMARY OF PROBLEM ANALYSIS

  State the deviation
  Develop possible causes
  Test for probable cause
  Verify

SUMMARY OF DECISION ANALYSIS

  Establish objectives
  Compare alternatives
  Choose the best balanced action

SUMMARY OF POTENTIAL PROBLEM ANALYSIS

  State the plan
  Anticipate potential problems

EDI'S WORKSHEETS

DECISION ANALYSIS WORKSHEET

Decision Statement

  Criteria
    Musts
     Info Go/No
    Wants
  Compare Alternatives

PROBLEM PREVENTION WORKSHEET

  Potential Problems
  Likely Causes
  Preventive Actions
    (To reduce probability)
  Contingent Action
    (To reduce seriousness)

EDI'S MATERIALS

SITUATION ANALYSIS

EDI'S MATERIALS

  Separation
  Set priority

PROBLEM ANALYSIS

  Problem statement
  Possible causes
  Testing
  Verification/action

DECISION ANALYSIS

  Establish criteria
  Compare alternatives
  Best choice

PROBLEM PREVENTION

  Planning statement
  Potential problems

Order signed by the Honorable Joseph A. Greenaway Jr., dated August 25, 1998, and filed August 26, 1998, (quoting Bostock Decl., vol. two, Ex. 10, at 8-9) dismissing EDI's counterclaim.

EDI contends that as early as 1975, Kepner accused Millard Robert Guberud ("Guberud")*fn2 and EDI (then called Training Associates, Inc.) of copyright infringement. Specifically, EDI claims that in 1975, Kepner alleged that EDI was "teaching courses on decision-making and problem analysis which infringed directly and blatantly on [Kepner-owned] copyrights." Def.'s Br. at 6. In response to Kepner's allegation, EDI requested promptly that Kepner identify which EDI materials violated Kepner copyrights. See id. An exchange of correspondence ensued. See id.

By letter dated May 28, 1975, EDI sent to Kepner's counsel, Mr. Jaffin ("Jaffin"), its then-current SITUATION MANAGEMENT materials.*fn3 In a follow-up telephone conversation between EDI's lawyer, Mr. Johnson ("Johnson"), and Jaffin, Jaffin confirmed that he had received the SITUATION MANAGEMENT materials. Kepner alleges that Jaffin notified EDI that Kepner had concerns regarding EDI's SITUATION MANAGEMENT materials.

EDI contends that neither Johnson nor anyone else at EDI heard any further complaints from Kepner until 1996 — a period of more than twenty years. EDI claims further that Kepner's silence of twenty years led EDI to conclude that Kepner had no objection to EDI's SITUATION MANAGEMENT materials. According to EDI, the SITUATION MANAGEMENT materials include all of the same concepts and virtually all of the same expressions about which Kepner now complains.

Specifically, EDI claims that both sets of materials combine four modules successively devoted to situation analysis, problem analysis, decision analysis, and problem prevention. EDI asserts that its current materials include worksheets for problem-solving, decision-making, and problem-prevention that parallel those used in connection with EDI's 1975 publication. EDI claims further that Kepner has not identified any ...


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