A fork is only a choice if both options are written to the same level of detail
Kodak's plan was to invent around Polaroid's patents. Amgen's patent claimed a whole functional class of molecules it had never built. Thirty-three forks on record, and the failures all had one option specified and the other described.
The asymmetry that decides it
Thirty-three forks are on record and twenty-five were never reversed. Read the four that were undone next to the twenty-five that stuck and the difference is not the quality of the judgment. It is that in the failures, one option was specified and the other was described.
Kodak decided in 1969 to enter instant photography by inventing around Polaroid's patents rather than licensing them, believing a decade of clean-room invention could outrun the patent thicket. 'License the patents' is a specification: a price, a term, a scope. 'Invent around them' is a hope with a budget. A permanent injunction barred Kodak from making or selling instant film or cameras from January 1986, after it had sold roughly $1.4 billion to an estimated 16 million customers, and it owed damages near its total revenue.
Amgen sought patents in 2014 claiming the entire functional class of PCSK9-blocking antibodies, most of which it had never seen or built, then sued to enforce them. The appeals court found the function-defined claims lacked enablement in 2021 and the Supreme Court affirmed unanimously in May 2023. The claim was written as a category rather than as a set of things that exist.
The ones that held were bounded
Apple decided in 2020 to transition the Mac to its own silicon, and the decision was carried through to the last Intel Mac. A finite list of machines, a sequence, an end.
Bristol Myers Squibb wrote an all-or-nothing cliff into a contingent value right in 2019. The record's verdict is that the clause worked exactly as written and the CVR terminated paying nothing. Whether that was fair is a separate argument; it was not ambiguous, and nobody had to litigate what it meant.
Daimler spun off trucks in 2021 and the truck arm listed while the parent renamed itself, both completed as chosen. Boeing moved its headquarters to Chicago in 2001 and the separation of leadership from engineering persisted and deepened over the following two decades — a bounded decision that held, and whose consequences this record traces forward into the MAX.
The org chart is the reliable exception
Procter & Gamble reorganized ten product categories into six sector business units in July 2019, each with its own chief executive and profit and loss, to eliminate a three-way matrix that diffused accountability. The matrix replacement stuck. The sixth sector folded back into five by September 2021.
That is the most common partial outcome in this set and the most forgiving. A reorganization is cheap to adjust, which is why it is the option companies reach for when the real fork is harder — and why a fork that resolves into an org chart is usually a fork that has not been made.
How to run this decision
Drawn from what separated the records that stuck from the ones that were undone. A step nobody in the record can be seen taking is not here.
- 01
Write both options to the same level of detail before choosing
If one is a contract with a price and the other is a program with a budget, you are not comparing them, you are comparing a known quantity to an aspiration, and the aspiration will win because nothing about it can be objected to yet.
- 02
Express the option as things that exist, not as a category
Amgen claimed a functional class rather than molecules it had made, and courts at three levels declined to let it. The same discipline applies outside patents: an option defined by what it would cover cannot be costed, staffed or bought.
- 03
Establish who else has to agree, and what happens if they do not
Kodak's fork was decided by a court, Amgen's by three of them. Where a third party can invalidate the option you choose, that party is part of the decision and their likely answer belongs in the paper, not in the risk register.
- 04
Put an end condition on the option you pick
Apple's transition ended at the last Intel Mac. The bounded decisions in this record held; the open-ended ones produced the litigation. An end condition also converts the decision into something a successor inherits rather than re-opens.
- 05
Check whether the fork has quietly become a reorganization
If the resolution of a strategic choice is a new set of business units, ask what was actually decided. P&G's reorganization was a real improvement on a broken matrix and it was not the answer to a strategic fork, which is why adjusting it two years later cost nothing.
- 06
Write the clause so it cannot be argued about
The Bristol Myers Squibb cliff worked exactly as written and paid nothing. Contested terms are where forks go to become other people's decisions, and the cost of drafting precisely is always smaller than the cost of the argument.
What it looks like when this is going wrong
- One option is a contract and the other is a program with a budget.Kodak, 1969.
- The option is defined by what it would cover rather than by what exists.Amgen, 2014.
- A court, regulator or standards body can invalidate the chosen option.Kodak, 1969. Amgen, 2014.
- The chosen option has no end condition.The four reversed forks on record.
- The fork has resolved into a new org chart.Procter & Gamble, 2019.