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predisposable_nym_01 4852 posts  |  Last Activity: Mar 13, 2014 4:57 PM Member since: Dec 4, 2009
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  • Reply to

    About JVM

    by predisposable_nym_01 Mar 12, 2014 12:24 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 1:20 PM Flag

    Yeah. A dozen years later and has no relevance where the current subject is concerned.

    If you spent more reading and trying to comprehend a post instead of constantly sucking the dlcks of those that actually DO own a FALCON, P.U., You might save yourself some embarrassment.

    Sentiment: Strong Sell

  • predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:52 PM Flag

    Red Hat, Inc. (RHT) -NYSE 58.81 Up 0.14(0.24%) 12:49PM EDT - Nasdaq Real Time Price

    Some "sux" is worth $20 more per share than the truly "suxing" MSFT.

    Maybe MS will catch up a little after they start selling Android phones!


    Still crampy from your flow, Billie Sue...?

    Sentiment: Strong Sell

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:47 PM Flag

    153. This press release was issued only two weeks or so after Merkey left Novell and contains the same feature set which he designed and described in both the Novell Wolf Mountain Architectural Overview and his pirated Tapestry for Windows NT Architectural Overview. Given the extremely short time since he left Novell and the fact he had already pirated the Novell architectural overview, it is clear Merkey was building upon information, designs, and architecture which he developed at Novell and which belonged to Novell.

    154. In an e-mail from Merkey to Balciunas dated May 10. 1997, Merkey asserted that the "court stuff" has only delayed their development of a product by a couple of weeks. He asserted they were still on track to deploy a product by the first or second quarter of 1998 (Ex. 64).

    155. On May 15, 1997, Merkey sent an e-mail to Sharon Fisher, a journalist covering the computer industry, asking that she provide a copy of the "technical document" which he gave to her and other press folks at Brainshare. He told her he had been given permission by the court to use anything that was in the public domain and wanted to obtain a copy to prove that it was given to the press and now was in the public domain (Ex. 164).

    156. In an internal e-mail at Microsoft, Microsoft noted that Merkey was going to provide a draft press release which differentiated between TRG's Tapestry product and the Wolf Mountain technology developed by Novell (Ex. 56).

    157. Merkey never provided such a differentiation to Microsoft (nor, so far as the court is aware, to anyone else).

    158. The depth of Merkey's shift in feelings -- an antipathy for Novell and a commitment to Microsoft -- is reflected in a variety of e-mail messages to Microsoft sent shortly after he left Novell in which he signs off as "Your Loyal Servant."

    Nuff said...

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:46 PM Flag

    149. During the hearing Novell introduced Exhibit 13 which purports to be a memo to Merkey from Vic Langford, the supervisor of the Scalable Server Division. Novell acknowledges that the memo was prepared for Langford's signature but that Langford declined to sign it. Defendants assert this demonstrates dishonesty on the part of Novell. Though each of our business practices sometimes are subject to question, Novell was generally forthright in how it reacted to Merkey and Major and their actions. Certainly Novell was angered at Merkey and spent tremendous sums of money pursuing this litigation against him. But I do not accept the wrongful motives which defendants attribute to Novell.

    150. At a court hearing on May 6, 1997, TRG was criticized for using the name Tapestry, which Novell claimed it had used internally in its Wolf Mountain project. As a result Merkey gave the TRG product a new name: "Replevin" which the press release noted was Latin for "to search". In fact, however, with the new name selected and announced just a week after a writ of replevin had been served upon him and Major, the only fair conclusion is that he chose this new name as a direct affront to Novell.

    151. In a press release dated May 8, 1997, TRG announced that it was developing "a 32/64 bit, massively scalable, clustered, fault tolerant, journaled meta-directory storage and access technology for Windows NT, Unix and other industry platforms." (Ex. 63).

    152. Primary among the other platforms spoken of by TRG is Novell's NetWare and IntranetWare products.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:45 PM Flag

    140. This action by Major evidences an intent to hide from Novell his real purpose with respect to the document. He had no intent to return it. Nor did he even return it when the constables searched his home. Rather, his copy was returned by him through counsel a week or two later.

    141. On April 23, 1997, Angus out processed after terminating his employment with Novell. At that time he certified that he had no Novell property at his home or in his possession (Ex. 184).

    142. This certification was inaccurate as he had a notebook in which he recorded, among other things, notes of problem areas encountered by the Wolf Mountain team in its development and implementation of the Wolf Mountain technology (Ex. 183).

    143. I do not accept Angus' assertion that he simply had forgotten that he had his notebook at home. It was far too sensitive a document and the times were far too charged to accept his claim of forgetfulness.

    144. While I find that Merkey and Major are not fully trustworthy, they claim that neither is Novell. They assert that Novell acted out of improper motivations.

    145. The decision by Novell to put the Scalable Server Division under the direction of Denise Gibson is a management decision which does not reflect any bias or antipathy toward Merkey, Major or the Wolf Mountain team.

    146. Merkey asserts that he did not fit in at Novell because he had a different ethnic or religious background than most of the Novell workers. This claim was not supported by any meaningful evidence.

    147. Merkey asserts that Gibson had a vendetta against him.

    148. The record supports a conclusion that Gibson and Merkey did not get along and that Merkey chaffed while under Gibson's supervision as he felt that being placed under her supervision was the death knell for Wolf Mountain as a project.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:45 PM Flag

    132. Merkey also was dishonest in a number of the e-mail messages which he sent to Balciunas, either exaggerating or deliberately falsifying factual assertions which he made in those e-mails.

    133. There is an acknowledged tendency in the industry for software development companies to float deliberately false or exaggerated statements of prospective product offerings, a practice called "vaporware."

    134. Merkey now alleges that all of his early commitments to Microsoft, which unquestionably were based upon pirated Novell technologies and information, were just vaporware.

    135. Given his penchant for creating a separate reality and for deliberate misrepresentation, I find Merkey's claim that he was simply floating vaporware unreliable. Rather, he wanted to have the benefit of both worlds -- his world actually working on a clustering model based upon the Novell architecture -- but also a world in which he could claim that he was not using or misappropriating Novell confidential technical information.

    136. Major also is not always truthful.

    137. Major resigned on March 7, 1997 and out processed on March 20, 1997. At the time that he resigned he knew that at out processing he would be required to return to Novell all of the Novell documents he had in his possession.

    138. Notwithstanding this understanding, during the two weeks after he resigned and before out processing, Major received a copy of the Wolf Mountain product proposal which was last edited on March 16, 1997. As such it only could have been obtained by him on or after March 16, 1997.

    139. Even though he had received a copy of the product proposal within four days of his out processing, Major did not return it to Novell at out processing. He claimed at court to have forgotten that he received it. This explanation does not wash. He is too bright to have forgotten receipt of such an important document just four days prior to out processing.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:43 PM Flag

    125. Major acknowledges that Merkey does not see boundaries; that if he feels strongly or wants to do something, he does it.

    126. Major has tried to distance his concept of where TRG is going from public statements and other actions taken by Merkey which demonstrate a contrary direction.

    127. All the while that Major made these attempts he was president of TRG.

    128. For example, Major disavowed the business plan which Merkey prepared in September 1997.

    129. In a letter from Merkey to Albert on September 12, 1997, Merkey asserted that the "Utah Judicial Commission contacted me Thursday, and relayed that they had reviewed Judge Schofield in Court over video camera, and have initiated an investigation relative to the Court session of September 8, 1997." (Ex. 107).

    130. While it may be possible that the Utah Judicial Commission (Conduct Commission?) contacted Merkey, that commission has not obtained a copy of any video of the court session of September 8, 1997. That hearing was court-reported and the only video made was made in accord with Rule 4-201(2)(C), Utah Code of Judicial Administration, for the purpose of the judge's private notes. No copy of that sole copy has been viewed by anyone other than the court. In short, this statement is another example of Merkey's penchant for self-serving, separate reality, dishonesty.

    131. While it is human nature for each of us to put our own spin on events which we observe -- indeed the heart of most auto accident cases is the different perceptions of eye-witnesses -- Merkey nonetheless regularly exaggerates or lies in his comments to others about events happening around him. It is as though he is creating his own separate reality. For example, his e-mail message to Balciunas of June 12, 1997, contains several clear misstatements or fabrications of what transpired in court (Ex. 72)

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:42 PM Flag

    116. Merkey has offered no less than four different explanations of how the hard drive came to be smashed, pointing most of the blame to his children.

    117. One of his explanations is that he was so angry at the replevin that he threw the computer at Novell's door when he returned it. This explanation does not fly (like the computer allegedly did) for neither the computer carrying case nor the laptop bear any evidence of physical abuse or damage, though the hard drive, which ordinarily is mounted within the plastic shell of the computer, clearly has been smashed.

    118. Even if documents are deleted from a hard drive, experts often can retrieve material which has been deleted from a hard drive. As an expert in computer science, Merkey knew this.

    119. The only sure way to prevent recovery of deleted material from a hard drive is to physically damage the hard drive. That is what happened here.

    120. The fact that he returned the hard drive damaged while the rest of the computer appears in good shape demonstrates that Merkey intended to prevent the retrieval of any information from the hard drive.

    121. That he would tell different and conflicting stories of how the hard drive came to be damaged demonstrates Merkey did not want the truth of how it came to be damaged known.

    122. In their operation of TRG, Merkey and Major act much as partners.

    123. Major testified that even though he has such a close business relationship with Merkey, he has to filter what Merkey says to find the truth, he is unable to control Merkey, Merkey is able to create his own reality which may have no basis in fact, and Merkey is prone to exaggeration.

    124. In fact, however, Merkey is not just prone to exaggeration, he also is and can be deceptive, not only to his adversaries, but also to his own partners, his business associates and to the court. He deliberately describes his own, separate reality.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:41 PM Flag

    111. At the time that the constables searched his home, Merkey had a copy of the following confidential Wolf Mountain documents at his home: (I) Wolf Mountain: An Invited Analysis/Report; (ii) Wolf Mountain Architecture Overview-Draft-; (iii) IDC Commercial Systems & Servers--Short Report for Novell--Beyond Netware; (iv) Novell Corporate Architecture--Wolf Mountain Summit Summary Review; (iv) Novell Project 2000 Hand-Outs; (v) Novell Project 2000 Technical Information; (vi) IDC Systems Research--Proprietary Novell Report: Strategic Assessment of Wolf Mountain's Market Space; and (vii) Wolf Mountain Architecture Overview. Other than items (iii and vi), each of these documents bore a legend that it was confidential or a Novell company secret. Each contained extended analysis and detailed information about the Wolf Mountain technologies

    112. Merkey explained at hearing that after learning that the constables had searched his home, he did not return to his home until he had returned the laptop computer (which later was discovered to have a smashed hard drive). This contradicts other testimony where he said the laptop was at his home by the docking station when the constables searched his home.

    113. Late in the evening of April 29, 1997, Merkey returned a laptop computer to Novell. Upon inspection Novell discovered that the hard drive in the computer was smashed. That same computer and hard drive were offered as an exhibit and the court has personally inspected the computer.

    114. The hard drive of the laptop is a modular unit, easily removable from the computer.

    115. At trial the hard drive was removed and inspected by the court. It had the appearance of having been smashed with several blows from a hard object like a hammer.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:40 PM Flag

    107. At the time that the constables searched his home, Major had a copy of the following confidential Wolf Mountain documents at his home: (I) Clustered Network Operating System (this is the body of the patent application filed with the U.S. Government); (ii) Product Proposal for Wolf Mountain; (iii) Novell Corporate Architecture--Wolf Mountain Summit Summary Review; (iv) Wolf Mountain NDA briefing with META Group; and (v) Wolf Mountain: An Invited Analysis/Report. (Ex. 47). Other than item (I), each of these documents bore a legend that it was confidential. Each contained extended analysis and detailed information about the Wolf Mountain technologies

    108. While the search was on at Major's home, Major contacted Merkey by cell phone and advised him of the search. At that time Merkey was at Angus' garage working on computer equipment for TRG.

    109. Though he has complained bitterly about the trauma inflicted upon his children by the search, Merkey was not present at his home when his home was searched and has no first hand knowledge of what happened then.

    110. Merkey was aware that he was being looked for and that the Novell computers in his possession were being sought pursuant to the writ of replevin.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:40 PM Flag

    100. In the April 23, 1997 e-mail Merkey told Balciunas that 70 senior architects and developers at Novell had resigned to join TRG. While TRG did hire some former Novell employees, it only hired a handful, not the 70 to which he alluded (Ex. 59).

    101. In that same e-mail Merkey told Balciunas that TRG had "captured clustering mindshare, and shifted it to WolfPack and Windows NT."

    102. This only could have meant that he was claiming to have taken the clustering initiative from Novell's Wolf Mountain group to TRG for use by Microsoft which had a clustering initiative called "Wolfpack."

    103. In a news story on the internet in a service entitled Info World Electric News dated April 28, 1997, Merkey is quoted as claiming to have taken 70 Novell employees with him when he left Novell (Ex. 142).

    104. In that story Merkey describes his Tapestry product as software which works in conjunction with Microsoft's Wolfpack to strengthen scalability and would enable the formation of heterogeneous clusters of Intel-based servers running Windows NT, Intranet Ware, and Unix (Ex. 142).

    105. For a company in which Merkey had been employed for only a week and Major only a month, it is inconceivable that TRG had any product other than the alleged Tapestry product which Merkey described to Microsoft by peddling it a slightly edited copy of the Wolf Mountain architectural overview which he prepared while at Novell.

    106. On April 29, 1997, the court issued a writ of replevin authorizing the constable to search the residences of Merkey, Major and Angus, to retrieve Novell documentation and computer equipment located at the residences.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:39 PM Flag

    93. Because Merkey and Major announced the Tapestry for Microsoft Windows NT product so soon after their resignation from Novell, it is clear they used the negative knowledge learned at Novell.

    94. Merkey also told Balciunas that "all of the information was 'in his head' " and that he hadn't written anything down in years.

    95. In an interview published in Lantimes magazine on May 12, 1997, less than a month after he left Novell, Merkey stated that TRG's product, Tapestry for Microsoft Windows NT, was "fairly far along."

    96. In that same interview he stated that:

    "One of the biggest problems is, when we were doing Wolf Mountain at Novell, we were running real quick and just cranking code out. None of the intellectual property is documented. None of the patents have been filed. The only place the knowledge exists is inside [my head] and [Major's]. None of it has been written down. In terms of Novell attempting to sue us for intellectual property, I'm not sure they know what to sue us for.
    97. This interview was given at a time that Merkey was technically still an employee of Novell as he resigned by a letter dated April 20, 1997, but to be effective two weeks later, on May 4, 1997."

    98. On April 20, 1997, the date of his second resignation from Novell, Merkey sent an e-mail to the members of the Scalable Server Division/Wolf Mountain team at Novell in which he advised them that he and Major had acquired funding for TRG and that the new company was hiring.

    99. On April 23, 1997, Merkey told Balciunas in an e-mail that he was on track for delivery of the Tapestry product by December 1997 (Ex. 59).

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:38 PM Flag

    87. While Merkey asserts that the April 18-19, 1997 meeting was his first with Albert on the subject, that seems highly unlikely as, by the end of a meeting which Merkey asserts was brief and no technical information was disclosed, Albert had agreed to invest several million dollars in the new venture, hardly the prudence which would be expected from a successful businessman.

    88. Following Merkey's meeting with Balciunas on April 17, 1997, Merkey sent Balciunas an e-mail dated April 19, 1997, in which he advised that TRG was focusing on Tapestry and would have a product available for Microsoft to review in its laboratory by late July and would be shipping by December (Ex. 57).

    89. As he had just met with Balciunas and Balciunas had a copy of the Tapestry architectural overview, it is clear Merkey was saying that he was going to build essentially the same product he had been developing while at Novell.

    90. Prior to leaving Novell Merkey told several Novell employees that he had intentionally under documented his work so that it would be in his head and not Novell's. Some quote him as also saying that when he left Novell he would take with him "the crown jewels", which they interpret to be the most sensitive technologies developed in Wolf Mountain.

    91. Having spent considerable time in trial and error experimentation at Novell, Merkey and Major acquired negative knowledge while becoming intimate with what worked and did not work in the process of developing technology. From their experience at Novell, Merkey and Major knew where their starting point was and could thereby avoid "false paths" and "blind alleys" in developing any products for TRG.

    92. This negative knowledge learned at Novell allowed Merkey and Major to cut corners in designing the Tapestry product for TRG. Because as Merkey stated, much of the information about Wolf Mountain was in his head, Merkey was able to save considerable time in testing and design research that was required at Novell.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:38 PM Flag

    78. At the conclusion of the meeting between Merkey, Major and Schmidt, Schmidt asked that Merkey and Major take no further action with respect to TRG for two weeks. Major committed that they would not.

    79. With Schmidt's admonition still ringing in their ears, on April 17, 1997, Merkey and Major met with John Balciunas and other employees of Microsoft at Microsoft's offices in Redmond, Washington.

    80. Merkey told Balciunas that he had created the Tapestry document after he was authorized by Novell to form a new company. Balciunas understood this to be March 18, 1997.

    81. Merkey told Balciunas that the Tapestry document had been prepared "starting from 'a clean piece of paper' ".

    82. Merkey advised Microsoft that he and Major were filing for 14 patents and that he was negotiating a patent cross-license agreement with Novell.

    83. Similarly, in a letter dated April 3, 1997, from Major to David Bradford, Novell's general counsel, Major urged Novell to enter into patent cross-license agreements with TRG (Ex. 86).

    84. During their meetings with Microsoft, Merkey spent two hours describing the Tapestry technology and he explained how Novell had invested $15 million in their new company. All aspects of this presentation were essentially dishonest as the technology was Novell's Wolf Mountain technology not TRG's and Novell had not invested any money in the new company.

    85. Though Major is portrayed in this litigation as an honest individual who has an eccentric and exaggerating partner, in fact, by his quiet during the Microsoft meeting, Major was a direct participant in the dishonesty.

    86. In their meetings with Marty Albert the very next day, directly contrary to what they told Microsoft the day before, Merkey and Major told Albert that Novell had not made any investment in the new company. They looked to Albert to be their financier.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:37 PM Flag

    69. The Tapestry document is virtually identical to a document prepared by Merkey while at Novell entitled Scalable Server Division Wolf Mountain Architecture Overview (Ex. 10).

    70. A close comparison of the two documents reveals that virtually the entire text of the Tapestry document has been lifted verbatim from the Novell Wolf Mountain Architecture Overview document. A few names and acronyms have been changed, but nothing else.

    71. The Tapestry document is not the work of Merkey at TRG, but is the work of Novell which Merkey copied whole cloth.

    72. In an internal e-mail at Microsoft Balciunas noted on April 4, 1997, that it would take a couple of weeks for Microsoft to work out positioning of the Wolf Mountain software. From the face of the e-mail it is obvious he was in contact with Merkey (Ex. 51).

    73. On April 7, 1997, Merkey sent Jim Allchin at Microsoft an e-mail concerning the creation of Wolf Mountain Group, Inc., indicating that Marengi had approved a patent cross license between Novell and Wolf Mountain Group and inviting Microsoft to buy a 30% ownership interest in Wolf Mountain Group, Inc.

    74. In an internal e-mail at Microsoft, Balciunas noted that Merkey was scheduled to meet with him on April 17, 1997, and that Balciunas had a copy of Merkey's architectural overview of his product (Ex. 54).

    75. On April 16, 1997, Merkey met with Schmidt in a lengthy meeting in Schmidt's office. At Merkey's request, Major joined part of that meeting.

    76. During this meeting Merkey advised Schmidt that he was proceeding forward with his company and that he planned to meet with Microsoft officials the next day to discuss areas where Microsoft and TRG could work together.

    77. As Merkey was still an employee of Novell, Schmidt told Merkey that he would prefer that the meeting with Microsoft not take place, that if he went he did not go with Novell's approval or authorization, and that he should respect Novell's proprietary and confidential information.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:37 PM Flag

    59. On March 18, 1997, Novell and Merkey and Major entered into an agreement by which Merkey and Major were allowed to form a new corporation for the purpose of engaging in software development (Ex. 8).

    60. One condition of the March 18 agreement is that Merkey and Major would respect Novell's intellectual property rights.

    61. In the March 18 agreement Merkey and Major also agreed that if the new corporation developed products which compete with Novell products, they would obtain required licenses for any of Novell technologies.

    62. Merkey personally agreed that, since he still was an employee of Novell, he would comply with the existing Novell employee confidentiality procedures.

    63. David Stevenson, Merkey's direct superior and one of Novell's primary witnesses in this proceeding, even invested $500 in the new company.

    64. Stevenson invested in this company on the express assurance from Merkey that the company had the blessing of Novell's management.

    65. This new company originally was named Wolf Mountain Group, Inc. Later, after this action was begun, it changed its name to Timpanogos Research Group, Inc.

    66. Merkey, Major and Stevenson were the original investors in TRG.

    67. Prior to April 17, 1997, Merkey transmitted to John Balciunas, via e-mail, a copy of a document entitled Tapestry for NT Architecture Overview (Ex. 26). This document originally was prepared by Merkey on a Novell computer server.

    68. Also, in a draft press release issued by TRG on or about March 31, 1997, at a time that Merkey still was an employee of Novell, TRG announced plans to develop a product named Tapestry with the feature set described in the Wolf Mountain Architectural Overview (Ex. 49).

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:35 PM Flag

    39. Initially, Merkey sought to take Wolf Mountain from Novell in an amicable fashion, by agreement with Novell that a new spin out company would be formed.

    40. He did this by lobbying Marengi for a spin out of the Wolf Mountain group into a separate, stand alone corporation, owned by Novell.

    41. Marengi entertained these suggestions because he claimed to still believe in the Wolf Mountain technologies and the Wolf Mountain project.

    42. Marengi discussed with Novell's counsel the possibility of creating a spin out company for Wolf Mountain.

    43. There is a kernel of truth in Merkey's claim that he discussed the Wolf Mountain spin out with senior Novell executives.

    44. What is missing is Novell's agreement. Though both discussed the issue with Merkey, neither Marengi, who was president of Novell until early April 1997, nor Eric Schmidt, who was president thereafter, approved the spin out.

    45. Major had no independent knowledge of Merkey's discussions with Novell executives concerning the spin out. Rather, he relied on Merkey for any understanding which he had of those discussions.

    46. By March 7, 1997, Merkey was so frustrated with Gibson's supervision that he and Major each tendered resignations from Novell.

    47. Major believed that the Wolf Mountain project was an industry leading processing system and he did not understand why Novell did not openly and vigorously embrace the new technology. Rather, he believed that Novell was shooting arrows at them rather than encouraging the new technology.

    48. When he resigned, Merkey told Stevenson he felt his dreams of building an industry leading information processing system could be best accomplished outside of Novell.

    49. Each year in the spring Novell hosts a gathering of computer scientists, experts and industry analysts in a symposium called Brainshare.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:34 PM Flag

    29. Part of Merkey's ability to deal with what he felt to be second class treatment of the Wolf Mountain group by Novell was the personal support he felt directly from Novell's presidents.

    30. At the time that the Wolf Mountain project was begun, Bob Frankenburg was president of Novell. Then, for a time, Joseph Marengi served as president of Novell.

    31. While Marengi was president he had close contact with Merkey and assured Merkey of continued support by Novell of the Wolf Mountain project.

    32. In December 1996, Novell did an internal roll-out of its Wolf Mountain technology. This roll-out was for the purpose of disclosing within Novell the nature of the proposed technology so that it could be evaluated by other computer engineers at Novell.

    33. While Merkey and his team felt the roll-out went generally well, they received criticism from the core operating group at Novell.

    34. This criticism was as much evidence of the infighting between the Wolf Mountain group and the core operating group as it was a bona fide critique of the Wolf Mountain project.

    35. After the internal roll-out the level of internal criticism of Wolf Mountain increased.

    36. In early 1997, the Scalable Server Division was placed under the management of Denise Gibson, who also managed the core operating group.

    37. Merkey felt that placing Wolf Mountain under common management with the core operating group was a significant blow, if not the death knell for Wolf Mountain as a separate, distinguishable product to be offered by Novell. He doubted that with both the core operating group and Wolf Mountain under the direction of Gibson, Novell would ever be able to regain its position in the computer industry.

    38. In early 1997, when Merkey realized that Novell was not going to proceed with the Wolf Mountain project in the manner which he wished, he began to devise a plan to take the Wolf Mountain project out of Novell.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:33 PM Flag

    20. Because Novell is or has been the leader in computer networking, where many computers are hooked together to a common server, able to communicate together and share common application systems; clustering seemed to many at Novell as a logical next step for it to take.

    21. Novell began its Wolf Mountain clustering project in March 1995.

    22. The goal of the Wolf Mountain group was to develop a clustering software package either as a stand alone product for sale by Novell or to be incorporated by it into its NetWare network operating system product.

    23. From the inception of the Wolf Mountain project, Merkey was the chief scientist and the head engineer working on this project.

    24. From its birth until October 1996, the Wolf Mountain project was under the direction of Dr. Glen Ricart, the Chief Technology Officer at Novell. In October 1996, it was placed in a newly formed division, the Scalable Server Division, under the direction of Vic Langford.

    25. Throughout all of this time Merkey remained the chief scientist on the project.

    26. By late fall 1996, Merkey envisioned Wolf Mountain as a stand alone operating system to replace the operating system used by Novell in its NetWare and IntranetWare products.

    27. From its inception the Wolf Mountain project had been housed at the Orem campus of Novell while the long established group which developed Novell's NetWare product (hereafter the "core operating group") was housed at the Provo campus.

    28. During all of this time, Merkey felt that the Wolf Mountain group was treated much like a stepchild by the core operating group. He endured this because he felt that Wolf Mountain constituted the first significant innovation at Novell in a long time and constituted a potential product which would return Novell to major importance in the computer industry.

  • Reply to

    Findings of Fact re JVM

    by predisposable_nym_01 Mar 12, 2014 12:30 PM
    predisposable_nym_01 predisposable_nym_01 Mar 12, 2014 12:32 PM Flag

    11. Major signed a similar agreement containing the same terms on February 9, 1988 (Ex. 80).

    12. Angus signed a similar agreement containing the same terms on December 4, 1987 (Ex. 181).

    13. In consequence of his decision to become reemployed by Novell on January 1, 1997, Major signed an Intellectual Property Agreement dated December 30, 1996 (Ex. 83).

    14. In the agreement Major agreed that any breach by him of the agreement will result in "variable, and continuing damage to [Novell], for which there is no adequate remedy at law, and [Novell] will be entitled to injunctive relief. . . ."

    15. This agreement contained provisions preventing his use or disclosure to others of Novell's proprietary information.

    16. On January 3, 1997, Major signed an Individual Confirmation Form (Novell) by which he agreed that Novell had classified the Wolf Mountain project as top secret and that he would not disclose any Wolf Mountain information to any other person, party, or agency within Novell or outside Novell without the express written consent of a Novell Authorized Business Development Authority (Ex. 84).

    17. On June 26, 1996, Angus also signed an Individual Confirmation Form (Ex. 17, 182).

    18. Novell's Wolf Mountain project was engaged in developing computer clustering.

    19. Clustering is the ability to physically connect multiple, independent computers ("nodes") together and for the multiple computers to work together as if one giant computer. The effect is to create a computer system which may have the computing capacity and power of a large main frame computer but to assemble it with off-the- shelf PC computers. It is expected this would provide significant computer power at a greatly reduced cost and with readily replaceable and upgradeable PC computers.

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