Novell/Merkey injunctions

Message ID: 275989
Posted By: al_petrofsky
Posted On: 2005-06-23 16:00:00
Subject: Novell/Merkey injunctions

Regarding the Novell/Merkey settlement
agreement found in the last ten pages of:

scofacts.org/Merkey-Perens-1_1.pdf

I wrote in the parent post that:

> the settlement calls for the
> preliminary injunction to be made
> permanent

That's incorrect. The settlement calls
for a permanent injunction to go into
effect upon the expiration of the
preliminary injunction, but it does not
say that these injunctions are
identical.

I haven't seen the actual text of the
preliminary nor the permanent
injunctions, but it appears that they
are significantly different.

According to the settlement, the
preliminary injunction was entered on
1998-04-01. I assume this injunction
was the one prepared pursuant to Judge
Schofield's 1998-01-30 ruling, which,
according to the version found at
groklaw.net/article.php?story=20041021131512626&mode=print
says:

> I therefore conclude that for nine
> more months defendants must be
> restrained from using any of Novell's
> trade secrets or confidential
> technical information and from
> engaging in any software development
> in the areas of clustering; file
> management, directory, storage and
> routing systems; or clustering
> interconnect communications system.
> ... Novell's counsel is directed to
> prepare an appropriate order.

The permanent injunction, however,
appears to have solely addressed the use
of some specific source code, and to
have been silent on the architectures,
protocols, formats, and methods that
were identified as trade secrets in
Judge Schofield's ruling. According to
the settlement agreement, the permanent
injunction merely enjoins the
defendants:

> (1) from using, disclosing,
> transferring, possessing, copying,
> modifying, or in any way utilizing
> Novell's Wolf Mountain Source Code, as
> hereinafter defined, comprising any
> feature or component of the Wolf
> Mountain technologies; and (2) from
> using, disclosing, transferring,
> possessing, copying, modifying, or in
> any way utilizing Novell's NetWare
> Source Code, as hereinafter defined.

The lack of any mention of trade secrets
in the settlement agreement's
description of the permanent injunction
seems to be at odds with Novell's press
release:

novell.com/news/press/archive/1998/08/pr98100.html

> The settlement includes ... a
> permanent injunction against use or
> disclosure of Novell's trade secrets

Message ID: 276053
Posted By: al_petrofsky
Posted On: 2005-06-23 20:57:00
Subject: Novell/Merkey settlement disappearance

For anyone wondering why one of the
links in the parent message no longer
works, see below. (See also the order
found at
scofacts.org/Merkey-Perens-2.pdf )

Date: Thu, 23 Jun 2005 17:35:22 -0700
From: Alan P Petrofsky< ...@petrofsky.org>
To: Jim F Lundberg< ...@novell.com>, Jeff Merkey <...@utah-nac.org>
CC: Susie Hindley <...@utd.uscourts.gov>
Subject: Re: Belatedly sealed document in Merkey v. Perens

Gentlemen,

In consideration of the apparent desire
by Novell, Darren Major, and Larry Angus
that the terms of the agreement not
become widely known, I have ceased
distributing the settlement agreement
that was entered into between and among
them and Jeffrey Merkey and Timpanogas
Research Group on August 18, 1998, and
was attached as Exhibit 2 to the
Complaint filed on June 21, 2005 in
Merkey v. Perens, 2:05-cv-00521 in the
District of Utah.

While it was available at
http: //scofacts.org/Merkey-Perens-1_1.pdf,
it was retrieved by visitors from
approximately 140 different internet
addresses. Obviously, any one of those
visitors could possibly redistribute the
document to thousands of other readers.
The same goes for all the other people
who, as I did, obtained the document
directly from the court's website before
it was sealed. Like the court, all I
can do is cease my own distribution.

Yours truly,

Alan P. Petrofsky

Message ID: 277198
Posted By: doughnuts_hmm
Posted On: 2005-06-28 18:37:00
Subject: Merkey - Novell settlement agreement

Some people had asked where to find that Merkey - Novell settlement agreement from 1998...

[REDACTED]

Message ID: 277210
Posted By: ranterjmc
Posted On: 2005-06-28 18:58:00
Subject: Re: Merkey - Novell settlement agreemen

It's also on [REDACTED]

Sorry it vanished but the disk drive on my web server crashed shortly after the last time I posted that - it's now on a brand new drive out of the box this morning.

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