Nucor Corp. v. Tennessee Forging Steel Service, Inc.
| Decision Date | 25 February 1972 |
| Docket Number | No. T-72-C-11.,T-72-C-11. |
| Parties | NUCOR CORPORATION, Plaintiff, v. TENNESSEE FORGING STEEL SERVICE, INC., et al., Defendants. |
| Court | U.S. District Court — Western District of Arkansas |
Bradley, DeLaney & Millett (Ernest S. DeLaney, Jr., and Channing Richards), Charlotte, N. C., W. H. Arnold, III, Arnold & Arnold, Texarkana, Ark., for plaintiff.
James H. Pilkinton, Hope, Ark., Smith, Williams, Friday, Eldredge & Clark by Herschel H. Friday and Frederick S. Ursery, Little Rock, Ark., Martin, Hopkins & Lemon by John G. Rocovich, Jr., Roanoke, Va., for defendants.
On February 2, 1972 the plaintiff, NUCOR, a Delaware Corporation, filed complaint against the defendants, Tennessee Forging Steel Services Inc., a Virginia Corporation, Charles N. Munn, William White and City of Hope, Arkansas, the prayer of which is as follows:
At the same time the plaintiff gave notice that on February 25th it would apply for a preliminary restraining order.
On February 25th, evidence was taken before the court to the hour of adjournment, then resumed on March 1, 1972, (at which time the defendants filed answer) and tried to a conclusion except for the deposition of G. K. King which has subsequently been filed.
NUCOR has been producing steel joists some 8 years and has become the largest producer of such joists in the United States with plants in Florence, South Carolina; Ft. Payne, Alabama; Norfolk, Nebraska and Grapeland, Texas and with plans for a fifth plant at Ft. Wayne, Indiana. By paying no dividends to its stockholders and utilizing its profits to expand and improve its facilities; and due to the intelligent, driving leadership of its management headed by Mr. Ken Iverson, NUCOR is now a leader in its field. Mr. Iverson, without hesitation, makes any changes he thinks for the best interest of NUCOR including selection, hiring and firing of topflight personnel and the procurement of materials at the most advantageous prices.
The designs for bar joists are in general governed by the Steel Bar Institute with local ingenuity furnishing specialty designs to fit particular demands. An over simplification is to say that Bar Joists are made by using angles and rounds, cut, bent and welded to make an adequately strong, but less expensive support than the older style I Beams. The machines used for cutting, bending and welding are more or less standard. Each Bar Joist Fabricator tries to manufacture the joists more economically than his competitors. Some of them started their process in an open field, then progressed to a building, some being "I", some "H", some "T" and some "E". It is fair to say that such buildings are generally what are referred to by some witnesses as "Tin Can" buildings, being large, substantial metal buildings to shelter the personnel and material and provide storage. There is nothing strange, new, unique or secret about the buildings. They are used for the purpose of shelter and have nothing to do with the fabrication of the joists. The shape and size are determined by the wishes and possibly the financial resources of the builder. The "work line" is fed with materials according to the whim and desire of the management, some of whom like the "Work Bay" to be 40 by 60 and some 50 by 50 and others of different size.
Each fabricator tries to keep labor and material costs at a minimum so that he can undersell his competitor in the bidding market because profit is still determined by income less expense.
When the joists are built and ready to deliver they are not wrapped, covered or protected from observation or inspection by any and all who care to look at them. There is no patent or legal protection of a bar joist to prevent duplication. Any person who has the proper metal and proper tools can make any kind of joist he cares to make. NUCOR does not contend that it is the only concern legally permitted to fabricate steel joists. In fact it alleges that there are more than forty such fabricators known to it and each and all of them can and do fabricate joists. There is no legal prohibition against anyone or all of the Fabricators making steel joists exactly like the ones NUCOR builds. If one chooses he can buy a joist from NUCOR and then build others like it. It is not subject to patent. Practically any and every conceivable type of joist is pictured and described in the S.B.J. manual along with the engineering information of what weight it will bear and stress it will stand.
In 1967 NUCOR built a joist plant at Grapeland, Texas using plans prepared by NUCOR'S engineers.
The plaintiff's Grapeland plans did not include the machine layout for the plant. The plans only indicated in what area the various basic processes such as cutting, welding, et cetera, were to be carried on.
The plans for the plaintiff's plant at Grapeland, Texas, were prepared in 1967 by the drafting department of the plaintiff's Norfolk, Nebraska, plant under the direction of Wayne Studebaker. Mr. Studebaker designed this building from information and suggestions given him by other employees of the plaintiff and from discussions with various joist manufacturers. When the Grapeland plans were completed in the latter part of 1967, Studebaker sent from 15 to 30 sets of these plans to the defendant White, who was the plaintiff's manager of construction, and who had extensive construction experience, knowing that White would send these plans to various contractors and subcontractors in order to obtain bids and construct the Grapeland plant. There was nothing printed on the plans to indicate that they were confidential. No deposits were required from the subcontractors when they received the plans. No effort was made to see that the plans were returned or to keep track of the various sets of plans.
The defendant, William White, an employee of NUCOR was in charge of the construction. Copies of the plans were made available for the use of bidders and to refer to as the building progressed. The plans contained no notice that they were confidential or limited as to publication, no deposits were required from bidders or subcontractors and there were no requisites that they be returned.
The plaintiff has never prohibited competitors or the general public from free access to and the opportunity to observe its plants and its manufacturing processes and procedures. On many occasions the plaintiff has conducted competitors and the general public on tours of its plants during operating hours. Plaintiff is justifiably proud of all four of its plants and has distributed 10,000 catalogs (40,000 annual reports) containing aerial photographs of all four plants. These photographs showed the basic design of the structures. While competitors and members of the general public did not inspect specific building plans in connection with their touring of and observing the plants, the evidence reflects that there is nothing on the plans (and in particular nothing on the plaintiff's plans for its Grapeland plant) which would not be readily apparent to any competitor or knowledgeable person touring or observing plaintiff's plants.
In preparing to construct its plant at Grapeland, no effort or arrangement was made to cause the plans to be returned after being used for bid purposes. The building was erected in plain view of the general public. No effort was made to conceal any part of the construction as being secret or confidential.
After the building was complete and the plant was in operation NUCOR made arrangements for plant tours. The Chamber of Commerce at Grapeland was proud of and toured the plant. So far as the evidence reveals no one was turned away. If competitors came to view and observe they were afforded the same courteous treatment. Interested persons did visit, did view and did obtain ideas of efficiency from what they saw at the Grapeland plant.
NUCOR does not contend that it has obtained or even attempted to obtain a statutory copyright on its Grapeland plans.
NUCOR does not...
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