After a half day of testimony Tuesday, Novell Inc. and three former employees agreed to work jointly on an out-of-court preliminary injunction that the company says will protect its vital software secrets.
"We want the preliminary injunction to protect our intellectual property," said Harrison Colter, Novell's associate general counsel.Novell filed a lawsuit last week against former employees Jeff V. Merkey, Darren Major and Larry Angus, claiming the three were planning to market through their own new company top-secret clustering technology developed at Novell.
The technology, developed under the code name Wolf Mountain, allows several personal computers to be connected like a mainframe. Novell says it is ahead of competitors in developing clustering technology and considers its intellectual property vital to its growth and ability to compete with rival Microsoft.
"This is pretty hot technology. It is really hot stuff," Colter said.
Merkey, who resigned from Novell April 25, was the main developer of the technology. In its lawsuit, Novell claims Merkey, Major (son of Drew Major, No-vell's chief technology officer) and Angus formed a company in the past month called Wolf Mountain Group Inc. that was seeking investors to market its own clus-tering technology. Wolf Mountain had also established a Web page on the Internet, and Novell claimed the new company was trying to hire Novell employees involved in developing the software.
The three former employees planned to introduce their clustering technology at a conference later this week under the code name Tapestry for Windows.
Novell officials said the three clearly couldn't have developed their own technology since leaving the company. The company said the three were either planning to use Novell's software secrets or defraud investors with technology they did not have.
"How could they conceivably have done this in a month when we've been working on it for a year and a half," Novell attorney Gordon Roberts said.
Novell said the three signed confidentiality contracts and had a fiduciary duty not to use ideas de-veloped at Novell.
"We recognize the defendants have a right to work, but they have agreements signed with us, and we don't want them taking our intellectual property and using it for their own benefit," Colter said.
Bryan Benevento, attorney for the three, said the former Novell workers simply plan on developing their own product and plan to abide by the agreements signed with Novell. He said Novell hasn't finished developing its clustering technology and is simply trying to eliminate new competition.
"They don't have a product. They have a prototype at best," Benevento said.
The attorney also said clustering is not new or secret technology, and was discussed at the Brain-share convention in March.
"This is not a case where Novell has a secret and they are hording it to their advantage," Benevento said.
Fourth District Judge Anthony W. Schofield issued a temporary restraining order last week prohibiting Wolf Mountain from using, marketing or developing the disputed technology. Constables also seized items from the homes of Merkey, Major and Angus that allegedly belong to Novell. A Novell computer that Merkey returned to the company allegedly had the hard drive destroyed.
After the lawsuit was filed, the three former employees agreed to stop using the Wolf Mountain name, drop the Web page and refrain from soliciting Novell employees to work for their new company.
However, Novell wants a preliminary injunction preventing the three from using any ideas they developed while working at Novell. At a hearing Tuesday, the company put on evidence that the ideas of Wolf Mountain came from No-vell and that Merkey made it clear to others that he intended to take the ideas to create his own company.
After a few Novell employees had testified, both sides decided to attempt to draft a preliminary injunction out of court. While attorneys work on terms of the in-junc-tion, both sides agreed to extend the temporary restraining order until May 21.
"This is merely going to block them from using Novell's intellectual property," Colter said.
If a preliminary injunction is not drafted by May 21, the court hearing will resume and Schofield will determine the terms of the preliminary injunction. Attorneys for both sides believe it might be difficult for a judge to understand the technological terms involved in the software dispute.
"This technology is going to be very difficult to understand," Colter said.