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Thinking Ahead–Letter from Chaille: Conflicting Feelings in New Pallet Industry Lawsuit
NWPCA sues Dr. Mark White over Best Load software, claims copyright infringement of PDS.

By Chaille M. Brindley
Date Posted: 3/1/2010

            Every once and a while a news story comes along that is difficult to cover because you have personal affinities for everyone involved. You may not be sure who to believe and what to think of events as they transpire. You certainly can see some of the arguments on all sides, and you want to see the best end possible for all involved.

            Such is the case for the brewing legal wrangling between the National Wooden Pallet & Container Association (NWPCA) and Dr. Mark White, the former director of the Sardo Pallet Lab and a distinguished professor emeritus from Virginia Tech. The NWPCA recently sued Mark White in the U.S. District Court of the Western District of Virginia over the development of his new Best Load software.

            The NWPCA’s lawsuit alleges copyright infringement, violation of Virginia’s trade secrets statute, unfair and deceptive trade practices, breach of fiduciary duty, and breach of contract. The NWPCA is asking for actual damages, lost profits, statutory damages, and punitive damages. Detailed analysis concerning this lawsuit may be presented in a future issue.

            The bottom line is that the NWPCA claims that Mark White’s new Best Load software that was introduced to the industry in a November 2009 Pallet Enterprise article is an unlawful competitor to the association’s Pallet Design System (PDS) software program. It appears that NWPCA has filed suit against Mark White in the efforts to defend one of its core assets from what it claims are violations of its intellectual property. Mark White personally denied any illegal use of PDS code or other intellectual property owned by the NWPCA. He has offered to allow a third party firm to evaluate Best Load and PDS to determine any potential copyright infringement. He seems to want to find a win-win solution that will prevent a bitter court fight.

            The lawsuit became public knowledge at the recent Western Pallet Association meeting when a question from the audience prompted a response by the president of the NWPCA. Due to the high profile nature of both the NWPCA and Mark White, we hope our initial coverage will encourage a level-headed approach. 

            My father, the publisher of the Pallet Enterprise, first wrote about this lawsuit in the January issue of Recycle Record and the Feb 5th edition of the Pallet Profile Weekly, our market reports available only to paying subscribers. He made a strong call to all parties to seek to resolve this controversy without relying on a protracted legal battle.

            Having worked with the pallet industry for well over 30 years, he remembers much of the history behind the development of PDS, pallet design and pallet research. The Enterprise has supported PDS for years and will continue to do so because it is a good tool for the industry. At the same time, we have enjoyed a strong working relationship for years with Mark White and believe him to be an honorable man who has done a lot for the industry. This is an important enough issue that the remainder of this editorial will be a slightly revised edition of what my father has already written.

            Here is what the Pallet Enterprise publisher, Dr. Ed Brindley, wrote concerning this lawsuit.  

            “When we published our first Best Load article, we asked hard questions concerning the PDS program as compared to Best Load. We were satisfied that Mark wrote his program using different technology for a different audience and with a different purpose than PDS. While both programs analyze pallet performance, their differences are notable. Best Load doesn’t handle either block pallets or repaired pallet analysis. It doesn’t provide durability analysis, a unique feature of PDS. Most notably, Best Load does holistic unit load analysis. It is designed to analyze the total unit load system.

            “The NWPCA lawsuit has identified a number of potential issues and alleged facts that we have not had time to thoroughly vet, and as an independent publisher, we are attempting to be as fair as possible in our analysis.

            “Certainly all of us should wish that cool heads will prevail in this issue. Neither party should want to endure large legal fees. Everybody is familiar with the old adage that the lawyers are the only ones that benefit from these situations.

            “A protracted legal battle may cost both sides hundreds of thousands of dollars, and it appears that Mark has a substantial financial backer that has hired a top-notch law firm. Beyond the financial costs, this lawsuit can cause irrepairable harm. Mark has told me that he is willing to work with the association to find a win-win situation, but so far nothing has been accomplished in this regard.

            “Mark claims that his Best Load program does not use PDS code and relies on different algorithms than those found in PDS. To prove that Best Load and PDS are not related to each other, Mark has told us that he is willing to let an independent third party compare the two source codes and analysis sheets to comment on the copyright infringement allegations. That is a fairly significant overture for any party to make that has been named in a copyright lawsuit. This seems like a logical first step before either side opts for a legal battle that could prove messy for two key pillars in the pallet industry.

            “A casual comparison of the two programs shows that Best Load analyzes the total unit load system, including the pallet, the materials handling environment, and the packaging, whereas PDS just examines the pallet. Mark indicates that he developed Best Load for the materials handling population, and PDS is designed for the pallet industry. He feels that both programs can survive and even thrive side-by-side, and that a pallet company can utilize both programs. Mark indicates that Best Load is not designed to replace or eliminate PDS; it is designed to benefit the pallet using community in totally different ways than PDS.

            “We understand the NWPCA perspective as well. It has spent a lot of money and effort on PDS, an important part of the benefits it offers members. PDS provides important pallet analyses to validate pallet designs to the industry’s customers. Best Load does incorporate many ideas that have been envisioned for future version of PDS. That may be the core of the issue, the future as much as the past. We believe that collaborative relationships will be the key for the association as well as all major industry players moving forward.

            “Mark has devoted his life to serving the pallet industry and its customers and his new Best Load offers a new tool to complement the PDS technology.

            “Does it have to be an either-or situation? Mark believes that he has not done any of the things that the association claims, and that both programs can operate together in serving the unit load community. On the other side, some at the NWPCA obviously believe that Mark’s software infringes on PDS, and the association has every right to defend its rights as a property owner. We believe that both sides have valid reasons for their concerns, and that the only way to know for sure is to let an independent expert analyze the programs to see how similar they are.

            “We challenge everyone involved, especially the board of directors of the NWPCA and the private backers behind Best Load, to work toward a mutually beneficial solution and to stop to consider all sides before making a decision. The worst thing that any leader can do is make a decision based on the loudest voice or who gets to him first. The board of directors of the NWPCA has been elected to make tough decisions and should do their own research to make accurate judgments about what indeed are the facts. As industry leaders dig into the specifics of this situation, we hope that they will be able to reach common ground.”

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