isham research
CAUTION - think before pressing PRINT. On most printers this document runs to around 130 pages.
This page contains the text from the scanned-in PDFs filed with the Court. The originals are here:
There is also a motion from T3 Technologies before the Court that should be heard in mid-January 2008, and PSI has filed a complaint with the European Union's Competition Directorate.
In the meantime, it looks like there may be something behind Platform Solutions' 9th amended counterclaim. Early documentation of the proposed PSI system specified a Hewlett-Packard platform, but the latest Platform Solutions pictures seem to show a NEC Express5800/1000 system. There aren't that many Itanium vendors - the choice is limited. Moving from HP to NEC cannot have been voluntary - NEC's support network is a pale shadow of HP's. If Hewlett-Packard got cold feet, who's funding the legal eagles? Perhaps the answer came in the third funding round:
"We believe Platform Solutions, Inc. is uniquely positioned to bridge the gap between legacy mainframe computing and 21st century server technology in today's enterprise environment. We've decided to join the current round of investment funding and enter into a collaborative sales and marketing agreement with PSI because of the benefits we believe PSI offers to enterprise customers trying to manage data in mixed mainframe and server environments." - Microsoft
About 140 lines in IBM's Amended Complaint are blanked out - redacted - but it is usually possible to derive the missing content from the text of PSI's response. Most seem to concern issues with Amdahl's TIDA and TILA agreements with IBM.
IBM's original complaint against PSI was a trifle vague and generalized. The process of discovery seems to have given IBM a little more ammunition, with the focus perhaps shifting to potential abuse of TIDA and TILA agreements between IBM and Amdahl.
This could take several forms - not limited simply to the original documents transferred by IBM. At Amdahl, these documents were maintained in a closed facility with only a handful of people ever authorized to access them. The rules provided for hand-written notes only and an IBM right of inspection at any time. But such information had to be used in different ways, e.g., to construct diagnostic programs for use in the field and to produce architectural validation workloads to test that functions had been correctly implemented. Any product, e.g., PSI's emulator or the Hercules emulator tested against such a validator could be regarded as containing TIDA or TILA information.
The implications of some arguments in this case, if they should be accepted by the Court, are horrendous and far exceed the scope of any action against such a minor player. Platform Solutions has almost no route to market and a product with only derisory support for the IBM mainframe environment - no z/VM, z/VSE or coupling, for instance - and could never have been a major player.
IBM's eighth claim is the most extraordinary and has already had an impact on the software industry. Essentially, IBM is seeking to outlaw emulation using an enormously stretched interpretation of the IBM Customer Agreement Clause 4.1 (page 17, foot). IBM's quite perverse argument is that emulation is translation within the terms of this clause - a clause that was never intended for any such purpose and is here egregiously misapplied. To support this bizarre contention, IBM has had to cause the removal of all quite legal and properly licensed emulations from the market - including Fundamental Software's FLEX-ES and its own Partnerworld system.
Emulation has been an established technique throughout the IT age. IBM itself used emulation to develop System/360 and its customers used 1401 emulation on that platform for many years, as well as System/36 emulation on AS/400. Emulation has reached third levels - PalmPilots emulating HP-12Cs have themselves been emulated under Windows, etc. More recently, IBM has even provided the tools to do this itself - and specifically for its mainframe environment - in the IBM xSeries 430 Enabled for System/390 and granted its customers licenses to run its software this way. How can ICA 4.1 forbid this now when it didn't then? The text has not been changed.
And IBM may well be making a rod for its own back. It has in the past produced emulation of other vendor's architectures, such as ICL's 1900 systems. Closing the door on, e.g., emulation of Windows on future IBM products seems ill-advised.
IBM's fourth claim is also extraordinary. The word "necessarily" in the claim is crucial. In essence IBM is stating quite flatly that it is impossible to run z/OS without licensing one or more IBM patents. But the language IBM uses is telling: ' .. to work as PSI claims, necessarily infringe IBM patents.' [Emphasis added] Note - it doesn't say ".. require an agreement to use IBM patents". The implication of this formulation is that IBM will always refuse to license these patents - a clear and obvious abuse of the intent of patent law. This is essentially counter to many countries' legal positions on software patents, but quite possibly true until this challenge is met. Not previously a problem because IBM has always been willing to license patents for reasonable fees - but it has now changed its long-established policy in support of this suit. Around 21 February 2006 IBM took down the web page (multiply archived - including the day before) that promised it.
Another change prompted by discovery is that the list of patents IBM claims may have been infringed is now slightly different.
The silence from Fundamental Software continues to be complete and therefore deafening, even to the point that their web site hasn't been touched for a year. Since it's obvious from its filings that IBM has not bought the company, this silence must have been obtained in some other way. Funsoft has an impressive patent portfolio - one way to slip this through would be for IBM to license Funsoft's patents on generous terms with a draconian non-disclosure provision and hide the payments in its general R&D expense. It's also of note that very, very few Flex-ES users have gone on record - and those that have have done so from a techie and not suit level. Another deafening silence.
As with the previous tabulation, these are the claims and counterclaims by paragraph, interspersed with a number of comments. IBM's traditional house colour is blue, and PSI claims some descent from Amdahl whose house colour was red (actually a Pantone orange, but let's not quibble) - so these colours are used in each case. In later documents, green is used for T3.
Plaintiff International Business Machines Corporation ("IBM"), by and through its attorneys, Quinn Emanuel Urquhart Oliver & Hedges, LLP, as and for its Amended Complaint against defendant Platform Solutions, Inc. ("PSI"), states as follows:
PSI's response contains a lengthy introduction before the detailed numbered point responses:
Defendant and counterclaimant Platform Solutions, Inc. ("PSI") hereby answers the Amended Complaint of Plaintiff International Business Machines Corporation ("Plaintiff") or "IBM"), admitting, denying, and alleging as follows:
In a spurious effort to call attention away from its own abusive and predatory behaviour by denigrating PSI's reputation, IBM, in its Amended Complaint, has made the sweeping assertion that PSI's business is built on a theft of IBM intellectual property. PSI rejects this assertion and denies IBM's allegations that it has infringed any valid IBM patent, misappropriated any trade secrets, violated any copyright, or breached any contract through the conduct alleged in the Amended Complaint, and denies that IBM is entitled to any of the relief claimed in its Amended Complaint. For the past several decades, IBM has taken a distinct approach to competition law in the mainframe industry. After its monopolistic behaviour drew the scrutiny of antitrust authorities in the 1950s and 1960s, it adopted a position of openness and free competition, inducing programmers, competitors, developers, and customers to adopt IBM's unique architectural platform. By representing that it would license its intellectual property relating to its mainframe products on reasonable and non-discriminatory terms, and by providing customers, business partners, application developers, and competitors - such as Amdahl and Hitachi - with the interoperability information and licenses needed to develop compatible products on a reasonable and non-discriminatory basis for decades, IBM caused the mainframe industry to standardize on the IBM mainframe architecture. Then, when regulatory attention moved elsewhere and IBM acquired an even larger base of customers locked in to IBM's architectural platform, it changed course: retracting promises to license technical information on the same terms as before; delaying requests for formal positions; renouncing a publicly-touted policy of reasonable, non-discriminatory patent licensing; and resuming its policies of tying and bundling that were so unequivocally denounced decades ago.
PSI - which is now marketing the first open architecture mainframe computer, capable of running IBM's mainframe operating systems and other operating systems such as Linux, Unix and Microosoft Windows and stands as the only viable threat to IBM's mainframe monopoly - is the target of IBM's current campaign to eliminate competitions in the world wide market for mainframe computers. Consumers want PSI's product. Trade publications have touted it. Organizations ranging from local governments to large, multi-national companies have either implemented it or are considering its implementation. IBM itself has projected that [One line redacted.] Rather than competing on the merits against PSI by offering better products, better service or lower prices, however, IBM has sought to extinguish the threat posed by PSI by, inter alia: (a) conditioning the license of its mainframe operating systems on the purchase or continued use of an IBM mainframe, (b) taking the novel position that any computer capable of running IBM's operating systems necessarily infringes IBM patents, and (c)attempting to enforce patents that purport to read on architectural standards for making IBM-compatible mainframe products after representing throughout the development of those standards that it would engage in reasonable and non-discriminatory licensing of interoperability information and allegedly applicable patents.
There is no pro-competitive justification for IBM's conduct; it is purely designed to eliminate competition and suppress customer choice. By its Amended Counterclaims, PSI seeks to recover damages based on the harm that IBM's conduct has caused and is causing to PSI's business. Further, PSI seeks the injunctive relief that is necessary to restore free and fair competition in the world wide market for computers and applications running on IBM's architectural platform - a platform that IBM's now-discarded licensing policies made the industry standard.
The bait and switch tactics that IBM is now using to maintain its mainframe monopoly are no only anti-competitive, but hypocritical. Consistent with its long-standing practice of providing customers, business partners, application developers and competitors with reasonable and non-discriminatory access to interoperability information in the mainframe industry, IBM to this day champions open standards when they suit its business interests. As recently as July 2006, an IBM-backed trade group filed a complaint before the European Commission claiming that another dominant firm - Microsoft - had violated the antitrust laws by refusing to supply to IBM the interoperability information necessary to make competitive compatible products "in a timely and adequate manner and thus discriminat[ing] in the supply of such information against third parties and in favour of its own products." IBM cannot have it both ways; it must live by the same principles that it invokes to its own advantage against dominant firms in other markets.
PSI now responds to IBM's individual allegations using the same paragraph numbers that appear in the Amended Complaint. All factual allegations not expressly admitted below are denied.
1.
PSI's entire business model is built on PSI's theft of IBM's intellectual property. Even the limited discovery produced in this case to date confirms that PSI has been engaged in the long-term, systematic theft of IBM's trade secrets, IBM's confidential documents, IBM's copyrighted software, and IBM's patented intellectual property, which continues to this day.
Denied.
2.
PSI has developed and is offering for sale emulators that seek to imitate IBM's computers. PSI sells its emulators to consumers by telling them expressly that their PSI emulator will run IBM's operating systems and other copyrighted IBM software and will act as if it is an IBM machine. Not surprisingly, in order to create emulators that mimic IBM's computer systems, PSI has relied on the wholesale theft of IBM's intellectual property. Without IBM's intellectual property, PSI's emulators could simply not exist.
PSI admits that it has developed and is bringing to market and offering for sale computer systems that are compatible with and will run IBM's copyrighted operating systems, other software programs written for IBM's operating systems, and other operating systems and software programs, and that it has informed customers and potential customers of this compatibility. PSI denies that its products are "emulator systems" that merely seek to "imitate" IBM's computers; PSI's products are open mainframe servers that are compatible with the broadest set of datacenter environments and operating systems, including IBM z/OS, Linux, Windows and HP-UX. PSI developed its products to provide mainframe computer customers with choice in the mainframe computer and operating systems markets in which IBM wields monopoly power. PSI denies the remaining allegations of paragraph 2.
The idea of a single system that can run multiple diverse operating systems is unsurprisingly not new. Both Amdahl and Hitachi Data Systems presented the concept to their "customer councils" in the 1990s. The response was never more than lukewarm because of hardware price/performance differences - customers would not pay mainframe-like prices to run small platform OSes. Sequent, IBM and Fundamental Software's partners all sold systems that would run IBM mainframe workloads and either UNIX or Linux workloads at very little if any additional cost - but no one bothered.
3.
IBM has invested billions of dollars of time, effort, know-how, creativity and money to develop its computers, the architectures for those computers, and the operating systems and other software programs that are compatible with and run on those architectures. IBM has developed combinations of computer hardware and software specifically tailored to meet the most demanding customer requirements. As a result of IBM's massive and multi-decade investment, IBM's computer systems provide unparalleled performance, reliability, availability, serviceability, and security and are widely used where accuracy, data integrity, and reliability are critically important. PSI now seeks to usurp the value of IBM's investment by stealing and misusing IBM's intellectual property.
PSI admits that IBM's efforts have included the development of computer hardware and software products tailored to meet demanding customer requirements, but denies that all of IBM's efforts were directed to those goals and denies the remaining allegations of the second sentence of paragraph 3. PSI admits the allegations of the third sentence of paragraph 3 except that PSI denies that IBM's computer systems provide "unparalleled performance, reliability, availability, serviceability, and security," and further denies that customer acceptance of IBM's computer systems and programs has resulted solely from IBM's investments. PSI denies the remaining allegations of paragraph 3.
4.
PSI's emulators, to work as PSI claims, necessarily infringe IBM patents - a fact that has been confirmed by IBM's analysis of a PSI emulator, the source code for the PSI emulators, and other materials produced by PSI in this litigation. As predicted in IBM's original Complaint, analysis of PSI's technology has confirmed broad and systematic infringement of important IBM patents, including patents covering significant aspects of IBM's computer architectures and the very emulation techniques that PSI has used to mimic those architectures.
Denied.
5.
The documents produced also show that PSI knew it needed a patent license from IBM for its emulators to work, yet when IBM refused to license its patents to PSI, PSI knowingly and willfully chose to use the IBM patents it needs without IBM's consent.
PSI admits that it expected IBM to grant PSI a patent license based on its publicly-advertised policy of reasonable, non-discriminatory patent licensing and its express statements to PSI. PSI denies the remaining allegations of paragraph 5.
6.
Discovery has also revealed that - contrary to PSI's flat-out denials over a number of years and continuing until today - PSI has misappropriated and used IBM trade secrets that it admitted it was not authorized to have. PSI simply took those trade secrets without IBM's consent and used them to design and test its emulators in an effort to make them compatible with IBM's architectures.
Denied.
7.
In addition, PSI has actually produced back to IBM in discovery IBM's own confidential and proprietary documents, dated as recently as 2007 and labeled "This document is classified IBM Confidential Information and is for the exclusive use of IBM sales personnel and authorized IBM Business Partners sales personnel. Any other use or distribution is prohibited." Ignoring IBM's requests, PSI and its counsel have refused to explain how PSI obtained IBM's confidential documents, how many other such documents are in its possession, or to return or certify destruction of all copies in its possession.
PSI admits that after the commencement of this litigation one of its officers received, unsolicited, documents labeled "IBM Confidential Materials" from a source outside of PSI, that these materials were promptly turned over to trial counsel, and that PSI has produced those documents in discovery to IBM. PSI admits that its counsel is unwilling to engage in informal discovery by answering requests for information not made through the discovery process. PSI denies that these documents were ever circulated within PSI, that they were used in any way, that they are of any value to PSI, and PSI denies the remaining allegations of paragraph 7.
This happens all the time. The IBM mainframe market is small with a limited number of players, and often such materials arrive unsolicited. IBM insists that such materials should be either destroyed immediately or returned to it, but this is often not a rewarding practice. In early 2004 thirteen instances of this were notified to various contact points within IBM, and the ultimate response was an insulting and threatening letter. There are almost 6,000 hits for the quoted string "IBM Confidential" on Google.
8.
The IBM intellectual property at issue here also includes IBM's copyrighted operating system and other software. PSI's emulators "translate" that software to enable it to run on computers that do nt implement IBM's proprietary architectures. By making such translations, PSI has breached its contracts with IBM and has encouraged its customers to do the same. PSI PSI has also violated the copyright laws by copying, or participated int he copying of, copyrighted IBM software.
PSI admits that IBM's intellectual property includes copyrighted materials. PSI admits that its firmware enables its products to execute instructions written for IBM's ESA/390 Architecture and z/Architecture. PSI denies that this enablement constitutes "translating" within the meaning of ICA. PSI denies the remaining allegations of paragraph 8.
This is pure pedantry. Would this claim have been made if either party has used "convert" instead of "translate"?
9.
By this action, IBM seeks, among other things, (a) an injunction precluding PSI from making, using, offering for sale, and selling emulators that infringe IBM's patents; (b) further injunctions to prevent ongoing irreparable harm to IBM from PSI's misappropriation of IBM's trade secrets, tortious interference with IBM's contracts, and copyright infringement; (c) damages; and (d) a declaration that IBM is authorized to terminate PSI's software licenses based on PSI's breach of contract and PSI's active encouragement of similar breaches by its customers.
PSI admits that IBM seeks the remedies set forth in paragraph 9, but denies that it is entitled to any of them.
10.
IBM also seeks declaratory relief from threatened antitrust claims. At the same time PSI was infringing IBM's patents and copyrights, misappropriating IBM's trade secrets, tortiously interfering with contracts relating to those trade secrets, and breaching IBM's software license agreements, PSI insisted that IBM agree to license (a) PSI to use IBM's patents and (b) PSI and third parties to use IBM's copyrighted operating systems and other software on PSI's emulators. When IBM declined to grant the requested licenses because, among other reasons, PSI was infringing IBM's patents, PSI responded by threatening baseless antitrust litigation seeking substantial alleged damages. And PSI has now filed antitrust Counterclaims in this action. IBM therefore seeks a declaration that its refusal to license IBM's patents to PSI and IBM's copyrighted operating systems and other software for use on PSI's emulators does not violate the antitrust laws - a declaration for which IBM relies, in part, on the same evidence of patent infringement that forms the basis for IBM's claims for affirmative relief under the patent laws.
PSI admits that IBM seeks declaratory relief set forth in paragraph 10. PSI admits that it requested, out of an abundance of caution, that IBM license any patents that might arguably be necessary for PSI to develop and market its products. PSI admits that it has demanded that IBM not tie its mainframe computers to its operating systems, and license its operating systems to PSI and to its customers. PSI admits that prior to this suit it notified IBM that its conduct violates the antitrust laws, and that PSI has filed antitrust counterclaims in this action. PSI admits that IBM has raised its patent rights as a post hoc justification for its anti-competitive conduct, but denies that its allegations justify its conduct. PSI denies the remaining allegation of paragraph 10.
11.
Plaintiff IBM is a corporation organized and existing under the laws of New York, having its principal place of business at New Orchard Road, Armonk, New York 10504. IBM's business activities, including research and development, manufacturing, marketing, and service are primarily in the field of information processing products and services. IBM develops, manufactures, markets and services computers, computer equipment, and software on a worldwide basis in competition with a large number of firms both inside and outside of the United States.
PSI denies the allegation that IBM faces competition from a large number of firms both inside and outside the United States with respect to the mainframe computer systems and operating systems at issue in this action, and admits the remaining allegations of paragraph 11.
12.
Defendant PSI is a corporation organized and existing under the laws of Californis, having its principal place of business at 501 Macara Avenue, Suite 101, Sunnyvale, California 94085.
Admitted.
13.
IBM's claims arise under the patent, antitrust, and copyright laws of the United States, 35 U.S.C §§ 1 et seq., 15 U.S.C §§ 1 et seq., 17 U.S.C §§ 101 et seq. This court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C §§ 1331 and 1338(a).
Admitted.
14.
This court has jurisdiction over IBM's claims for misappropriation of trade secrets, tortious interference with contract, and breach of contract pursuant to 28 U.S.C §§ 1332 and 1367. There is complete diversity of citizenship, and the amount in controversy exceeds $75,000, exclusive of interest and costs.
Admitted.
15.
This court has authority to grant declaratory relief pursuant to the Declaratory Judgement Act, 28 U.S.C. §§ 2201 et seq.
Admitted.
16.
PSI has admitted in its Answer to IBM's original Complaint in this action that this Court has personal jurisdiction over PSI.
Admitted.
17.
Venue is proper in this judicial district pursuant to 28 U.S.C §§ 1391(b), 1391(c), and 1400(b). PSI has admitted in its Answer to IBM's original Complaint in this Action that venue is proper in this District.
Admitted.
18.
For over forty years, IBM has invested massive amounts of time, effort, know-how, and creativity, and money, in developing its computer architectures and the computer systems that implement those architectures.
PSI denies that IBM has invested the time, effort, money, know-how, and creativity that it would have under competitive conditions, and avers that "massive" is too vague an adjective to permit a response and therefore denies that allegation. PSI otherwise admits the allegations of paragraph 18.
19.
As a result of its investments over time, IBM has developed System z. System z is the brand name for IBM's current mainframe computer systems. System z evolved from IBM computer systems dating back to 1964. Its predecessors include IBM's System/390® ("S/390®"), which was introduced in 1990. System z is an umbrella term for: IBM zSeries® servers (introduced in 2000), IBM System z9 servers (introduced in 2005), and IBM operating systems and other IBM software that run on zSeries® or z9 servers.
PSI admits that System z is the brand name that IBM uses for its current mainframe computers, mainframe operating systems, and software applications for mainframe computers, and that System z is an umbrella term IBM uses for those products. PSI further admits that IBM's current mainframe computers and operating systems evolved from products dating back to 1964, and that the S/390, introduced in 1990, is among the predecessors to IBM's current mainframe computers. PSI admits that the System z products include zSeries servers and z9 servers and IBM mainframe operating systems and products that run on those computers or other IBM-compatible mainframe computers. PSI denies that he development of System z or the System z products resulted solely from IBM's investments, and denies any remaining allegations of paragraph 19.
20.
zSeries® servers and their predecessors have been the backbone of commercial computing for decades - renowned for their reliability, scalability, availability, serviceability and other industrial-strength attributes. The zSeries® server and z/OS® were designed for environments requiring very high performance, reliability, accuracy, and security. many z/OS customers have business requirements for continuous system availability. System down time or unplanned outages, even of short duration, can cause millions of dollars in lost revenue or other significant business impact. IBM has a strong interest in ensuring the excellent and well-deserved reputation of its System z.
Admitted, except that PSI denies the allegation of the first sentence of paragraphh 20 that zSeries servers and their predecessors have been the backbone of commercial computing for decades on the ground that he allegation is too vague to permit a response. To the extent the allegation is meant to suggest that IBM mainframes are the only mainframe computers that have been renowned for their reliability, scalability, availability, serviceability and industrial-strength attributes, PSI denies the allegation; to the extent that IBM has a dominant position in the market for mainframe computers, PSI admits this allegation.
At least IBM managed to avoid the dreaded "synergy" word - but the rest is fatuous nonsense worthy of a 1970s hardware salesman. The fact is that z/OS is indeed one of the world's most reliable and secure operating systems - if not indeed the very best overall - but IBM's zSeries hardware platforms are quite ordinary in terms of current technology. The first hardware platform to run MVS uninterrupted for a calendar year (in 1978) was a Hitachi processor - the S6 installed at Eternit in Berlin. Perhaps PSI will seek to subpoena IBM's own records, especially the power-on resets caused by mandatory microcode patches to the early z900s? There are many other examples, and very, very few examples of outages to IBM's own xSeries running Fundamental Software's Flex-ES emulation. Perhaps even none. An even simpler question - today, right now - how many MCMs in IBM mainframes world wide are "maxed out" having used all available on-board spare processors? That number might frighten a few big users.
21.
A computer's architecture defines the logical structure and functional operations of the computer. System z computers implement IBM's current 64-bit z/Architecture®. IBM's z/Architecture® evolved over time from predecessor architectures, including IBM's 31-bit Enterprise Systems Architecture/390® ("ESA/390"), Enterprise Systems Architecture/370 ("ESA/370"), and several earlier architectures.
Admitted.
22.
Operating systems comprise the fundamental software that controls the execution of programs on the computer and provides [sic] basic services such as resource allocation, scheduling, input/output control, and data management. IBM's operating systems, like its architectures and computer systems, are the product of massive investments over time.
PSI admits the first sentence of paragraph 22. PSI denies the second sentence inasmuch as the word "massive" is too vague to permit a response.
23.
Particular operating systems are designed to run on computers that implement a particular architecture on the features and characteristics of that architecture. IBM's copyrighted OS/390®, for example, was designed to run on IBM's S/390® computers, which implement IBM's ESA/390 Architecture. IBM's copyrighted z/OS® is the successor operating system to OS/390® and is designed to run on IBM's System z computers, which implement IBM's z/Architecture®. The relationship between IBM's computer architectures and the operating systems designed to run on those architectures is one of the important factors contributing to the accuracy and reliability of IBM's computer systems, to customer acceptance of those systems for mission-critical applications, and to the ability of IBM's computer system to compete with alternative computer systems offers by IBM's many competitors.
PSI admits that particular operating systems are designed to capitalize on the features and characteristics of compatible architectures, that IBM's OS/390 operating system is compatible with its S/390 computers, that its z/OS operating is compatible with its Series Z computers, and that the compatibility between IBM's operating systems and the architectures of its mainframe computer systems is an important factor contributing to the accuracy and reliabilityy of those systems for mission-critical applications. PSI denies the remaining allegations of paragraph 23.
24.
In addition to mainframe operating systems, architectures, and computers that implement those architectures, IBM has invested huge amounts of time, effort, creativity, and money in developing other software programs that work in conjunction with those operating systems and computers. Examples of such other IBM software programs include IBM's Customer Information Control System ("CICS®") and IBM's Database 2 ("DB2®"). Like IBM's operating systems, these programs are designed to operate in conjunction with IBM's computer architectures and to capitalize on the features and characteristics of IBM's architectures.
PSI admits the allegations of the first two sentences of paragraph 24. With respect to the third sentence of paragraph 24 PSI admits that the software programs referenced in the second sentence of paragraph 24 will operate in conjunction with IBM computer architectures, but notes that such programs also will operate in conjunction with IBM-compatible architectures such as those previously marketed by Amdahl and Hitachi and now marketed by PSI.
25.
IBM holds a large portfolio of patents relating to System z and predecessor computer systems. IBM's patents are directed, among other things, to aspects of its z/Architecture® and its predecessor ESA/390 Architecture, and to emulation technology, including the very technology that PSI is using to mimic IBM's architectures. IBM has further sought to protect its investment in computer intellectual property by maintaining certain aspects of its z/Architecture®, ESA/390 Architecture, and predecessor architectures as IBM trade secrets, by copyrighting its mainframe operating systems and other software, and by imposing reasonable contractual restrictions on the manner in which customers may use those IBM computer programs.
PSI is without information or knowledge sufficient to form a belief as to the allegations regarding IBM's patent portfolio, and therefore denies those allegations. PSI admits that that IBM has sought to copyright its mainframe operating system and other software products, but denies that all its intellectual property is copyrighted and denies that IBM's contractual restrictions are reasonable. The statement that IBM has maintained "certain aspects of its z/Architecture®, ESA/390 Architecture, and predecessor architectures as IBM trade secrets" is too vague to permit a response, and PSI is further without information or knowledge sufficient to form a belief as to this allegation. PSI denies the remaining allegations of paragraph 25.
26.
Recognizing the value of IBM's intellectual property, PSI has developed and is now implementing a business model that seeks to usurp IBM's massive long-term investment for PSI's own benefit.
Denied.
27.
PSI is free-riding on IBM's efforts by stealing and misusing IBM's intellectual property to develop, make and sell emulator systems that mimic IBM's computer architectures. An emulator is a combination of software, firmware and/or hardware added to a computer that implements one architecture (e.g., the Itanium® Architecture developed by PSI's investor and business partner Intel Corporation ("Intel") for the purpose of translating computer programs written for a different architecture (e.g., the IBM z/Architecture®) and enabling those programs to be run on the computer to which the emulator has been added. An emulator is intended to allow the computer to which it has been added to accept the same data and the same instructions, run the same programs. and achieve the same results as does the computer whose architecture is being emulated. According to PSI, PSI's emulator systems accomplish this by translating IBM's copyrighted software into a set of instructions that can be executed by an Intel processor that is not capable of executing the original IBM software instructions.
PSI admits that PSI's products run on Intel Itanium chips and are capable of executing the instructions of IBM's OS/390 and z/OS operating systems and other IBM computer programs that run in conjunction with those operating systems, such as IBM's CICS and DB2. PSI admits that Intel is an investor in and business partner of PSI. PSI otherwise denies the allegations of paragraph 27.
28.
The PSI emulator systems run on servers supplied by PSI's business partner Hewlett-Packard Corporation ("H-P"), which use Itanium® microprocessors supplied by PSI's investor and business partner Intel. Acording to PSI, its emulator systems are capable of running IBM's OS/390® and z/OS® and other IBM computer programs that run on those operating systems, such as IBM's CICS® and DB2®.
PSI admits that its products run on Intel Itanium-based servers, admits that its products are compatible with certain standards and specifications of IBM's ESA/390 architecture and z/Architecture computer systems, admits they are capable of running IBM's OS/390 and z/OS operating systemms and other IBM programs that run in conjunction with those operating systems, such as IBM's CICS and DB2. PSI further admits that certain Hewlett Packard servers use Itanium chips, and that certain of PSI's products incorporate Hewlett Packard servers. PSI denied the remaining allegations of paragraph 28.
29.
As PSI's public statements acknowledge, a complete emulator of an IBM computer architecture must, by definition, fully and exactly mimic the relevant IBM architecture. IBM's z/Architecture is defined, in part, in an approximately 1000-page Principles of Operation ("PoP"), the sixth edition of which was published in April 2007. If the PoP indicates that a facility is present or if a required facility is present in the architecture despite lack of definition in the PoP), and PSI's emulator does not exactly mimic it, software that attempts to make use of the facility will not work properly. To be a viable emulator, PSI's emulator systems would have to be able to accurately run z/OS® and at least any additional System z software required by the customers that PSI is targeting.
PSI admits the allegations of the second sentence of paragraph 29, admits that compatibility with any particular facility supported by IBM's z/Architecture requires the ability to support that facility, and admits that the viability of PSI's IBM-compatible products depends in part on the ability to run z/OS and other System Z software required of licensed by its customers. PSI denies the remaining allegations of paragraph 29.
30.
PSI has asserted that its emulator systems are in fact able to execute "the 1200+ instructions from the z/OS and S/390 instruction set," and that its emulator systems are compatible with - i.e., capable of running - IBM's OS/390® and z/OS®, other software intended to run on OS/390® and z/OS®, and vendor and customer application software that runs on those operating systems. PSI (through one of its licensees and marketing partners) has elaborated on this statement, asserting that PSI's emulator systems will run IBM's "latest" z/OS® operating system. PSI has further asserted that z/OS® workloads will run "identically" on PSI's emulator systems as on IBM mainframe computers.
PSI admits that it has stated that its products are designed to execute the instructions in the z/Architecture and S/390 instruction sets required by its intended customers and that its products are compatible with the OS/390 and z/OS operating systems and other IBM, vendor and customer application software that runs on those operating systems. PSI further admits that it has confirmed that its products will run IBM's latest version of its z/OS operating system and will perform many z/OS workloads as if they were operating on an IBM mainframe. PSI denies the remaining allegations of paragraph 30.
31.
PSI has repeatedly sought to trace its roots to Amdahl Corporation ("Amdahl"), a company that formerly made IBM-compatible computers. PSI has built its business using emulation software, diagnostic tools, and other information obtained from Amdahl around the time of PSI's formation. [Five redacted lines.] By so doing, PSI has wrongfully misappropriated IBM's trade secrets.
PSI admits that it was founded by employees of Amdahl, admits that it acquired rights to use Amdahl-created software and diagnostics; and admits that IBM had entered into certain agreements with Amdahl under which IBM disclosed technical information to it. PSI otherwise denies the allegations of paragraph 31.
32.
Amdahl licensed from IBM, and used with IBM's consent, (a) IBM patents and (b) IBM trade secrets relating to important non-public aspects of IBM's computer architectures.
PSI admits the allegations of paragraph 32, but further states that IBM licensed the basic interoperability information to Amdahl only after it was threatened with antitrust enforcement proceedings and in order to avoid such proceedings.
33.
Certain aspects of the IBM architectures are not published in the PoP and are instead maintained by IBM as trade secrets. For this reason, Amdahl entered into various agreements with IBM byy which it requested and received IBM trade secrets relating to various non-public aspects of IBM's OS/390® and predecessor architectures.
PSI admits that certain aspects of the IBM architectures are not published in the public PoP and that Amdahl received information regarding some of these aspects pursuant to certain agreements with IBM. PSI otherwise denies the allegations of paragraph 33.
34.
In 1986, IBM entered into an IBM Technical Information Disclosure Agreement (the "TIDA") with Amdahl. In 1996, IBM entered into an IBM Technical Information License Agreement (the "TILA") with Amdahl. The TIDA and TILA set forth terms and conditions governing Amdahl's treatment and use of the trade secrets ("Technical Information") that IBM chose to license to Amdahl in specific negotiated transactions in response to Amdahl's requests for information to be used by Amdahl as permitted by the TIDA and TILA.
PSI admits that IBM and Amdahl entered into the TIDA agreement in 1986, and subsequently entered into the TILA agreement in 1996, and that those agreements were specifically negotiated and set forth terms and conditions governing technical information that IBM provided to Amdahl pursuant to those agreements, and avers that the TIDA agreement was entered into pursuant to IBM's commitment to the European antitrust authorities to make interoperability information available to competing undertakings, such as Amdahl, on a timely basis. PSI denies that all the technical information disclosed to Amdahl then constituted or now constitute "trade secrets", and avers that much of it is available from multiple sources, including, inter alia, Hercules' open source emulation program and IBM's United States and foreign patent applications. PSI denies the remaining allegations of paragraph 34.
And now that z/Linux contains no OCO modules, it may be that some information is published there.
35.
The TIDA and TILA required Amdahl to hold in confidence all IBM Technical Information and not to disclose, publish, or disseminate it without IBM's written consent. The TIDA and TILA also strictly limited the uses to which Amdahl could put technology that Amdahl developed with the aid of IBM Technical Information. Specifically, Amdahl was permitted to use, sell, transfer, or license such technology only in and/or with an Amdahl product. The TIDA and TILA did not permit Amdahl to use or disclose IBM Technical Information to develop materials, tools, or products that could then be used to develop or manufacture a non-Amdahl product, such as PSI emulator systems.
PSI admits that the TIDA/TILA agreements prohibited Admahl from disclosing, publishing or disseminating TIDA/TILA information except as provided by the TILA/TIDA agreement. PSI denies the remaining allegations of paragraph 35.
It was reasonably obvious that such a prohibition must exist. Now it has been stated unequivocally by IBM and confirmed by PSI. Hercules, UMX and PSI are or were of course not Amdahl products.
36.
IBM also entered into TIDA and TILA agreements with Fujitsu Computer Systems Corporation ("Fujitsu"), which at relevant times had a substantial ownership interest in Amdahl and completed the acquisition of Amdahl in 1998. The Fujitsu TIDA and TILA were in all material respects identical to the Amdahl TIDA and TILA, except that Fujitsu - rather than Amdahl- was the designated "Licensee" of IBM Technical Information. References to Amdahl in this Amended Complaint are intended to include both Amdahl and Fujitsu.
Admitted, except that PSI is without knowledge sufficient to admit or deny that the Amdahl and Fujitsu TILAs and TIDAs were in all respects identical.
37.
IBM licensed important IBM trade secrets to Amdahl under the TIDA and TILA. The IBM Technical Information licensed to Amdahl defined certain non-public aspects of IBM's ESA/390 Architecture (and predecessor IBM architectures).
PSI admits that the technical information disclosed to Amdahl and Fujitsu defined certain standards and specifications for IBM's ESA/390 and predecessor architectures that were not disclosed in the publicly-available PoP at the time. PSI otherwise denies the allegations of paragraph 37.
38.
Amdahl used IBM Technical Information licensed to it under the TIDA and TILA in various ways, [Five redacted lines.].
PSI admits that technical information provided to Amdahl under the TILA and TIDA was used in Amdahl's development of diagnostic tools, but denies that such tools were based entirely or principally on such information and avers that the tools were based principally and substantially on Amdahl's own innovatios and publicly available information, and denies that the principal use of the TILA and TIDA information was in the creation of diagnostic tools rather than the development of Amdahl's IBM-compatible processors. PSI further admits that Amdahl diagnostic tools were used to test whether Amdahl processors were compatible with IBM's architectures and would produce the same results as IBM processors. PSI further admits that Amdahl's diagnostic tools can be used to assist in the testing of S/390 compatible processors, including an Intel Itanium processor overlaid with PSI-developed firmware and microcode. PSI otherwise denies the allegations of paragraph 38.
39.
[Two lines redacted.]
PSI admits that IBM technical information was used by Amdahl in developing diagnostic tools, including DIRT, HOT, ALPHA and 8E7, as well as various "bring up programs" or "BUPs". PSI denies that those Amdahl diagnostic tools were based entirely or principally on IBM technical information, and on information and belief avers that substantially less than 10% of the code in those programs was based on any IBM technical information disclosed under the TIDA or TILA agreements, and the development of those programs was based on Amdahl's own innovative efforts.
40.
[Two lines redacted.]
Admitted.
41.
[Two lines redacted.]
PSI admits that some of Amdahl's diagnostic tools contains code derived from IBM technical information, but denies that any of the tools were laced with such information or based principally on such information. On information and belief PSI avers that far less than 10% of the code contained in Amdahl's diagnostic tools was derived from IBM technical information that IBM claimed was confidential, and much of that information has subsequently become publicly available and thus non-confidential.
42.
The development of what became PSI's emulator systems originated at Amdahl in or about 1995. According to PSI, this emulator development program continued at Amdahl until 1999, during which time Amdahl spent hundreds of millions of dollars and developed several versions of S/390*® emulation software called "Manta," "Merlin," and "Stingray."
Admitted.
43.
In the latter part of the 1990s, Amdahl and its parent, Fujitsu, determined that they did not wish to make further investments in developing IBM-compatible computers because their analysis of "trends in the industry" led them to conclude that "S/390 [was] in a declining market" and that "[c]ustomers are choosing to migrate to open systems and open source platforms."
PSI admits that Amdahl decided to stop marketing IBM-compatible computers around 1999. PSI denies the remaining allegations of paragraph 43.
44.
At that point, Ronald N. Hilton, then an Amdahl employee who was heavily involved in Amdahl's emulator development program, formed PSI as a separate corporation and arranged for PSI to license various materials from Amdahl. [Three lines redacted.]
Admitted, except PSI avers that it was the understanding of both parties that the emulation software, diagnostic tools and related materials would not contain IBM confidential information or materials from which such information could be readily discerned.
45.
Mr. Hilton is now the Chief Technology Officer of PSI, and in that capacity is responsible for the overall design of PSI's emulator systems. On information and belief, Amdahl's interests in the negotiations concerning the PSI/Amdahl License were represented by Gregory Handschuh, who later joined PSI's Board of Directors and became its Vice President and General Counsel. Messrs. Hilton and Handschuh were fully aware of the terms of the TIDA and TILA.
PSI admits the first two sentences of paragraph 45, except that it avers that Amdahl's interests in the negotiations were negotiated by a member of Mr. Handschuh's staff. PSI admits that Mr. Handschuh and Mr. Hilton, to varying degrees, were aware that the TILA and TIDA agreements contained restrictions on disclosure. PSI otherwise denies the allegations of paragraph 45.
46.
IBM never authorized Amdahl to provide, and never authorized PSI to receive, TIDA/TILA Technical Information. PSI and its personnel recognized at all relevant times that the TIDA and TILA did not permit PSI to obtain any IBM Technical Information in Amdahl's possession.
Admitted, except to the extent that IBM considers TILA/TIDA information to be "provide[d]" or "receive[d]" when object code diagnostic tools are transferred, or to include non-confidential information, which PSI denies.
47.
[Five lines redacted.]
PSI admits that it unknowingly or inadvertently received certain diagnostic program listings that may have contained some TIDA-derived information from Amdahl/Fujitsu after both parties agreed that PSI should not receive such listings, and that it subsequently learned it had received such information and took steps to ensure that it made no improper use of such information. PSI denies that it ever used IBM trade secrets, and denies the remaining allegations of paragraph 47.
48.
[Four lines redacted.]
Denied.
49.
[Seven lines redacted.]
PSI admits that, prior to this suit, it maintained that it did not receive IBM confidential information. PSI admits that Mr. Hilton did unknowingly receive and retain BUP source listings in electronic form that Fujitsu had produced to PSI. PSI admits that it subsequently received diagnostic binary modules and source code listings for HOT and Alpha. PSI denies that it received source code listings for all programs, and specifically denies that it received them for HOT and 8E7. PSI further denies that it has ever used, or is using, source code listings to discern IBM's confidential information for the purpose of designing its products or that its products are derived from such information.
50.
Thus PSI has stated that, "We have successfully run Amdahl's system-level diagnostic such as HOT and DIRT to ascertain full compatibility."
Admitted.
51.
[Two lines redacted.]
Denied.
52.
In December 2000, PSI proposed that IBM join with PSI in a program to develop emulation software capable of running OS/390® and z/OS®. One of PSI's proposed terms and conditions was that IBM provide PSI with "TILA specifications of all IBM proprietary features and capabilities of the S/390 architecture, z//Architecture, and any future extensions thereto." IBM declined.
Admitted.
53.
In March 2001, PSI presented IBM with a grandiose vision, which included "negat[ing] any need of further S/390 custom chip design" by IBM, and having IBM "fully replace custom S/390 development" with PSI emulation software. In support of this proposal, PSI requested that IBM "provide PSI with TIDA, TILA and 64-bit (z/Architecture) specifications in exchange for equity in PSI. IBM again declined.
PSI admits the first sentence of paragraph 53 except for the "grandiose vision" characterization, which is too vague and conclusory to require a response. PSI admits the second sentence of paragraph 53. PSI admits that IBM refused to license its S/390 architectures and system designs in return for equity, but avers that it did so because of its own "similar business plans" and that it was at all times willing to license the interfaces and architectures "that have already been made available to others on comparable terms." PSI otherwise denies the allegations of paragraph 53.
54.
Also in March 2001, PSI inquired of IBM whether PSI could gain access to TIDA/TILA Technical Information by acquiring Amdahl's business. IBM responded by informing PSI that it could not do so: "Basically, Amdahl is licensed to use solely and does not own the documents, additionally Amdahl is prohibited from passing along either the material or the license in all cases. In essence it is not an asset of Amdahl's." PSI did not dispute IBM's response.
PSI admits that it inquired as to the implications of acquiring Amdahl's S/390 business on the TIDA/TILA information that Amdahl had licensed from IBM. PSI admits that IBM told PSI that Amdahl could not transfer the information. PSI admits that it did not dispute this assertion with IBM. PSI otherwise denies the allegations of paragraph 54.
55.
Among other options considered by PSI at that time was whether to try to license IBM's trade secrets directly, as Amdahl had done. PSI rejected this option because it recognized that IBM's trade secrets would command a "high fee," which PSI was unwilling to pay. [Two lines redacted.]
PSI admits that it considered licensing the TIDA/TILA information directly from IBM, and admits that its decision not to do so was in part guided by a cost-benefit analysis of whether it was worthwhile to purchase the information from IBM at a relatively high cost. PSI denies the remaining allegations of paragraph 55.
56.
On November 11, 2003, PSI sent IBM a letter advising that, "we have acquired the rights to the former Amdahl patents and all of their technology that doesn't include TIDA or TILA." [Several words redacted.]
PSI admits the first sentence of paragraph 56. PSI is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 56, but denies the alleged falsity of the statement.
57.
In April 2005, responding to IBM's request for information that would allow IBM to determine whether PSI was using IBM's intellectual property, PSI's Vice President and General Counsel, Gregory Handschuh, denied IBM's request and wrote: "Let me categorically state that PSI has not misappropriated any IBM trade secret.
PSI admits the first sentence of paragraph 57. PSI denies that the quoted statement is false. PSI avers that in the same letter Mr. Handschuh requested IBM to advise if it had any basis for suspecting that PSI was using IBM intellectual property, and that PSI received no response. PSI further avers that it had advised IBM in 2001 that PSI possessed Amdahl diagnostic tools. PSI is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 57, and therefore denies those allegations.
58.
Until discovery was permitted in this lawsuit, and despite repeated requests by IBM, PSI did not permit IBM to inspect a PSI emulator system. In June 2007, as PSI began producing its emulation software for inspection by IBM in this action, PSI suddenly advised IBM that, "PSI believes it may have inadvertently received IBM confidential information" from Amdahl "in the form of source code listings for test and diagnostic programs which were originally licensed to PSI in object code form by Amdahl ... when PSI was formed." [Five lines redacted.]
PSI admits that it refused IBM's unprecedented request that PSI allow it to inspect PSI's machine prior to it going to market. PSI admits that it notified IBM of the presence of diagnostics source code listings with TIDA tags, and admits the language quoted in paragraph 58. PSI further admits that, as set forth in the quoted language, PSI acknowledged that it received source code listings in addition to the object code versions of certain of Amdahl's test and diagnostic programs. PSI otherwise denies the allegations of paragraph 58.
59.
[Ten lines redacted.]
PSI admits the first sentence of paragraph 59. PSI admits the quoted portion of the second sentence of paragraph 59. PSI denies the remaining allegations of paragraph 59.
60.
[Seven lines redacted.]
PSI admits the first sentence of paragraph 60. PSI admits that after IBM sent a letter containing dozens of demand for detailed information, essentially asking for a written narrative of the creation of PSI's product, PSI informed IBM that it would not engage in extensive informal discovery. PSI lacks sufficient knowledge and information to respond to the third sentence of paragraph 60, and therefore denies the allegations contained therein. All remaining allegations of paragraph 60 are denied.
61.
[Twelve lines redacted.]
PSI admits that various versions of diagnostics have been transferred to and created by PSI over time and that they exist in different locations. PSI further admits that it inadvertently received some listings that contain source code related to functions that may have been initially disclosed to Amdahl pursuant to the TILA/TIDA agreements. PSI denies the remaining allegations of paragraph 61.
62.
[Five lines redacted.]
PSI admits that the listings reflected in the letter to IBM were the result of a preliminary and that PSI's investigation of IBM's allegations has been an is continuing. PSI is without knowledge or information sufficient to form a belief as to the remaining allegations of paragraph 62, and therefore denies them.
63.
[Seven lines redacted.]
PSI admits that the scan results do not reflect other diagnostic tools licensed by Amdahl that do not contain TILA/TIDA-derived source code, may not pick up all potential TILA/TIDA information, and may pick up source code that may be derived from TILA/TIDA information that is now in the public domain. PSI denies that all Amdahl diagnostic tools - and specifically executable versions of ALPHA and DIRT - illegally contain or reveal TIDA/TILA information, and avers that IBM has been aware since March 5, 2001 that PSI received DIRT, HOT and BUPs from Amdahl and that IBM has never - prior to its Amended Complaint - asserted that PSI's use of such diagnostics is improper or violates any agreement. PSI denies the remaining allegations of paragraph 63.
64.
[Eleven lines redacted.]
PSI admits that it inadvertently obtained assembly listings, some of which potentially disclose TILA/TIDA information, from Fujitsu, and avers that no IBM trade secrets were used in the development of its products. PSI denies the allegations of paragraph 64.
65.
[One line redacted.]
Denied.
66.
[Four lines redacted.]
Denied.
67.
[One line redacted.] PSI has also acquired confidential IBM business documents setting forth IBM pricing strategies and other IBM confidential business information. These documents are plainly labeled as IBM "confidential" information and contain proprietary business information that should never get into the hands of competitors like PSI.
PSI admits that one of its officers received, unsolicited, documents labeled as IBM confidential from a source outside of PSI, which he promptly turned over to trial counsel,and that these documents contain IBM pricing information and business information. PSI promptly produced those documents to IBM, and has maintained their confidentiality. PSI denies that these documents were ever circulated within PSI, that they were used in any way, that they are of any value to PSI, and PSI denies the remaining allegations of paragraph 67.
68.
When asked, PSI refused to explain how it obtained IBM's confidential documents, to identify how many other such documents are in its possession, and to return or certify destruction of its copies of these documents. Discovery to date has not yet disclosed the circumstances under which PSI acquired these IBM, but given the nature of the documents, PSI plainly knew that it was not authorized to possess them.
PSI admits that its counsel informed IBM that it was unwilling to engage in informal discovery by answering requests for information not made through the discovery process. PSI admits that it knew the documents were labeled IBM Confidential and it therefore promptly turned them over to trial counsel. PSI otherwise denies the allegations of paragraph 68.
69.
On February 7, 2003, PSI wrote to IBM concerning PSI's request for software licenses and advised IBM of its plans to emulate IBM's z/Architecture®: "We realize that some of this functionality may be covered by IBM patents ..." [Three lines redacted.]
PSI admits the used of the language quoted in paragraph 69, the dates of the correspondence, and the authors of the correspondence. PSI denies the remaining allegations of paragraph 69, including the characterization of the quoted language.
70.
Based on (a) the purpose and nature of PSI's emulator systems, as stated by PSI, (b) IBM's knowledge of emulator technology, (c) IBM's analysis of the source code for PSI's emulation software or firmware; and (d) IBM's inspection of a PSI emulator system purchased from PSI as part of the discovery process in this case, IBM has determined that the making, using, selling, or offering for sale of PSI emulator systems necessarily infringes IBM patents, and/or will contribute to or induce infringement of those patents by users of PSI's emulator systems.
PSI is without knowledge or information sufficient to form a belief as to IBM's subjective beliefs, and therefore denies the allegations of paragraph 70 concerning what IBM believes. PSI denies the remaining allegations of paragraph 70.
71.
The patents that are infringed by PSI include the following:
In the Amended Complaint, IBM dropped its allegations regarding U.S. Patent 6,801,993 entitled "Table Offset For Shortening Translation Tables From Their Beginnings". Additions are in italics.
Denied.
72.
IBM is the owner of all right, title, and interest in and to the '261, '520, '709, '678, '106, '495, '789, '851, '002, and '812 patents by assignment, with full and exclusive right to bring suit to enforce each of these patents, including the right to recover for past infringement.
PSI admits that IBM is designated on the face of the patents as the assignee. PSI is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 72, and therefore denies those allegations.
73.
[Four lines redacted.]
PSI denies the first sentence of Paragraph 73. The second sentence of paragraph 3 is both a statement of intent and a legal conclusion, neither of which require a response.
74.
In March 2004, PSI executed an IBM Customer Agreement ("ICA") with IBM. A true and correct copy of that ICA is attached hereto as Exhibit 11. The ICA expressly prohibits PSI from, among other things, "translating" licensed ICA programs, including z/OS®. After executing the ICA, PSI licensed copies of z/OS® and other IBM software pursuant to the terms of the ICA.
PSI admits that it has, at various times, licensed copies of z/OS and other IBM software pursuant to the terms of the ICA. PSI admits that, among other things, the ICA requires the user to agree not to "reverse assemble, reverse compile, or otherwise translate the ICA program unless expressly permitted by applicable law without the possibility of contractual waiver." PSI otherwise denies that [sic] allegations in paragraph 74.
75.
PSI's emulator systems use software, which PSI refers to as firmware, to mimic IBM's ESA/390 Architecture and z/Architecture® by translating IBM software (written for computer systems using those architectures) into instructions that can be executed by the Intel processors contained in the emulator systems. PSI's translated Itanium® instructions are then executed by the Itanium® processor, with the intent of producing the same result as if the IBM software had been executed on an IBM zSeries® server.
PSI admits that its firmware enables its products to execute instructions written for IBM's ESA/390 Architecture and z/Architecture, admits that it has described z/OS and other zSeries software as having the capability to be run on top of the firmware layer in PSI's products, admits that its firmware works in conjunction with Intel Itanium processors to execute the z/Architecture and ESA/390 Architecture and admits that its products are intended, in part, to ensure that z/OS and other zSeries software run on a PSI system will produce the same results as they would when run on an IBM zSeries mainframe computer. PSI denies the remaining allegations of paragraph 75.
76.
According to PSI, PSI's emulator systems translate what PSI calls "legacy instructions" contained in IBM's copyrighted software into what PSI calls "translated" instructions". PSI's emulator systems sue what PSI calls dynamic just-in-time translation, in which IBM's operating system instructions are translated, the translated instructions are stored or "cached" in the memory of the PSI emulator, and the translated instructions stored in memory are then executed by the emulator.
PSI admits that its products execute the "legacy instructions" included in the current version of IBM's mainframe operating, that it has referred to its product's ability to execute the instructions contained in IBM's operating systems as "just in time translation," and that the instructions are stored in cache in the computer's memory. PSI denies the remaining allegations of paragraph 76.
77.
U.S. Patent No. 7,092,869 ("the '869 patent") issued to Ronald N. Hilton, PSI's founder and Chief Technology Officer, sets out the manner in which PSI translates IBM software so that such software can be run on a computer not based on IBM's architectures.
PSI admits that its founder and Chief Technology Officer Ronald N. Hilton was the inventor of the inventions claimed in U.S. Patent 7,092,869 ("the '869 patent"), and that its products practice the invention claimed by the '869 patent. PSI denies the remaining allegations of paragraph 77.
78.
PSI's public presentations on its emulator systems have confirmed that those systems translate IBM software so that the software can be run on a computer using an Itanium® processor. Such translation is expressly prohibited by the ICA.
PSI admits that it has stated in public presentations that its products execute the instructions of IBM's mainframe operating systems and that it has referred to this function as "just in time translation." PSI denies the remaining allegations of paragraph 78.
79.
In addition to breaching its own ICA, PSI has encouraged its customers to translate IBM software using PSI's emulator systems and otherwise to violate the terms of their ICAs, and has even offered to indemnify customers against claims arising from their use of PSI's emulator systems.
PSI admits that it has offered to indemnify and agreed to indemnify certain of its customers for patent infringement claims, and further avers that IBM indemnifies its own customers from claims of infringement related to its products. PSI denies the remaining allegations of paragraph 79.
80.
PSI and IBM have met and corresponded concerning PSI's activities. Before commencing this litigation, IBM advised PSI that PSI's emulator systems infringe various IBM patents, and offered PSI the opportunity to prove that this was not so. PSI declined IBM's offer, as well as IBM's requests for information about, and access to, PSI's emulator systems.
PSI admits that it has met with and corresponded with IBM regarding PSI's efforts to market IBM-compatible mainframe products. PSI denies the remaining allegations of paragraph 80.
81.
IBM and PSI have also met and corresponded concerning PSI's demands that IBM agree to license its patents to PSI and its copyrighted operating systems and other software for use on PSI's emulator systems. IBM has declined to provide the patent and software licenses demanded by PSI.
PSI admits that it has met and corresponded with IBM regarding PSI's reuests that IBM provide licenses for any patents that IBM believes are necessary to develop, sell and distribute IBM-compatible mainframes and that IBM make its operating system and other software available to PSI and customers of PSI's products. PSI further admits that IBM has refused to provide PSI or its customers with access to IBM's operating systems and software. PSI denies the remaining allegations of paragraph 81.
82.
Before the commencement of this litigation, PSI repeatedly asserted, in words or substance, that IBM's refusal to license IBM's patents to PSI and IBM's software for use on PSI's emulator systems is both unlawful under the antitrust laws and damaging to PSI.
PSI admits that, prior to the commencement of this litigation, it informed IBM that IBM's conduct is unlawful under the antitrust laws and is damaging to PSI. PSI denies the remaining allegations of paragraph 82.
83.
As early as March 16, 2001, PSI stated in correspondence to IBM that its "major concern" was "IBM's stated decision not to license the z/Architecture at all at this point," and that PSI assumed IBM would "continue to reevaluate that position, given the potential antitrust issues that could be raised." On October 29, 2002, PSI wrote to IBM and (a) asserted that IBM's decision not to license its software for use on PSI's systems is "not consistent with the long term IBM practice of licensing its software regardless of the implementation of the computing platform"; (b) requested licensing terms for commercial operation of IBM's software on PSI's emulator systems; and (c) stated that "each day that goes by is directly impacting our development schedule." On December 23, 2002, at a time when PSI said it was preparing "for the commercial introduction of our product line early next year," PSI wrote to IBM's President and CEO (a) criticizing IBM's decision not to license IBM's software for use on PSI's emulator systems; (b) arguing that IBM's refusal conflicts with historical "precedent" and is "discriminatory" and "purely arbitrary"; and (c) claiming that the effect of IBM's decision is "historically anti-competitive" and that "our survival as a company has ben placed in immediate jeopardy as a result." On February 7, 2003, PSI wrote to IBM seeking a letter of intent from IBM confirming IBM's willingness to license its software for use on PSI's emulator systems and asserting that "[t]he unexpected uncertainty on this point has severely hampered the execution of our business plans, jeopardizing the entire venture." On November 10, 2003, PSI wrote to IBM and stated that IBM's licensing position with regard to z/OS® "has severely impacted our ability to deliver a 64-bit machine" and requested reconsideration of that position. On October 5, 2005, PSI wrote to IBM (a) again criticizing IBM's refusal to license IBM's software to be run on PSI's emulator systems; (b) arguing that IBM's licensing policy is inconsistent with IBM's "prior practices and precedents"; and (c) asserting that IBM's licensing position is "causing confusion - both to us and to our end user customers" and "is not just causing confusion in the market" but "is causing harm to our business."
PSI admits that [sic] the allegations contained in paragraph 83 except insofar as the allegations refer to PSI's products as "emulator systems". PSI denies the remaining allegations of paragraph 83..
84.
At a meeting in February 2006, PSI requested that IBM reconsider PSI's request that IBM grant PSI a patent license for PSI's emulator systems and agree to license z/OS® and other IBM software for use on PSI's emulator systems. On May 24, 2006, IBM declined PSI's request. IBM stated at that time that "IBM continues to believe that PSI's products infringe IBM's intellectual property rights" and that "we continue to see indications that PSI is engaged in infringing activity .. IBM has clearly articulated to PSI its belief that by developing and/or offering for sale a product that can run IBM's z/OS operating system, PSI is infringing a number of IBM patents, including IBM's z/Architecture patents. A non-exhaustive list of IBM U.S. patents potentially infringed by PSI was provided to you on August 18, 2005. PSI provided IBM with no substantive response. Instead, PSI continued its development and marketing efforts notwithstanding IBM's rights and interests."
With respect to the first sentence of paragraph 84, PSI admits that it met with IBM in New York in February 2006 to discuss the licensing of any patents that IBM believed were relevant to PSI's products, but denies the remaining allegations of that sentence. PSI admits the allegations of the second sentence of paragraph 84, and that IBM's correspondence dated May 24, 2006 contained the language quoted in the remainder of paragraph 84.
85.
On June 8, 2006, PSI asserted that IBM's decision not to license its patents to PSI and not to license z/OS® to run on PSI systems was "completely unjustified". PSI asserted that IBM's position "will undoubtedly result in significant harm to both PSI and its customers" and "strongly urge[d]" IBM to reconsider its decision. In light of the history of communications between the parties, IBM reasonably construed this letter as threatening antitrust litigation if IBM continued to decline to license its patents to PSI and its operating systems and other software for use on PSI's emulator systems.
PSI admits the content of the June 8, 2006 correspondence alleged in paragraph 85, but denies that IBM did or could reasonably construe this as threatening antitrust litigation.
86.
On August 3, 2006, IBM declined PSI's request for reconsideration of IBM's decisions not to grant PSI a patent license and not to license z/OS® and other operating systems to run on PSI's emulator systems: "As we have explained, we believe that a PSI emulator that runs IBM's z/OS® operating system infringes a number of patents. We have repeatedly expressed this view to PSI, and you have acknowledged that PSI believes it requires patent licenses from IBM. In asking us to reconsider our decision, PSI has provided no new information. IBM would welcome the opportunity to examine one of PSI's systems and, following such an examination, would be willing to discuss PSI's infringements in greater detail." At the same time, IBM advised PSI that, "We are very concerned that, despite the fact that PSI is unlicensed to IBM's patents and has been informed that IBM will not license z/OS on PSI systems, PSI continues to make public statements that it intends to offer systems that run z/OS. IBM is extremely concerned that these statements will induce potential users of PSI systems to infringe IBM's intellectual property rights. Please ensure that PSI does not in any way represent or imply that PSI systems are authorized or eligible for a license to run the IBM z/OS operating system."
PSI admits that IBM declined PSI's request for reconsideration of IBM's decision not to grant PSI a patent license and not to license its software to run on PSI's products using the language quoted in paragraph 86. PSI denies the remaining allegations of paragraph 86.
87.
On August 9, 2006, PSI asserted that "PSI does not believe its systems infringe any patents that IBM may hold" in the fields of z/Architecture® and coupling; admitted that PSI "has not undertaken the lengthy effort and expense of a detailed infringement analysis" with respect to other IBM patents; and stated that it "was most surprised and disappointed" by IBM's position that it would not grant PSI a patent license. PSI further stated that, "PSI believes that IBM's current posture in dealing with PSI to be unwarranted and calculated to cause it substantial harm. It is for this reason that PSI urged IBM to reconsider its position, and does so again here." IBM reasonably construed this correspondence as threatening antitrust litigation if IBM continued to decline to license its patents to PSI and its operating systems and other software for use on PSI's emulator systems.
PSI admits the content of the communications alleged in paragraph 41 [sic - should be 87?] and avers that the letter also indicated that PSI has relied on IBM's representations that it would license the S/390 patents. PSI denies that IBM did or could reasonably construe this correspondence as threatening antitrust litigation.
88.
In response to IBM's Complaint in this action, PSI asserted various antitrust Counterclaims seeking substantial alleged damages. PSI's Counterclaims demonstrate that IBM's perception that PSI was threatening groundless antitrust litigation was well-founded and that there is an actual and justiciable controversy between the parties.
PSI admits that it has filed counterclaims alleging antitrust violations and claims substantial damaged as a result of IBM's antitrust violations and other unlawful conduct. PSI otherwise denies the allegations in paragraph 89.
89.
In March 2006, PSI announced that it was demonstrating and "delivering to customers today around the world" emulator systems that run IBM's z/OS® operating system. In March 2006, PSI also publicly announced that its z/Architecture® emulator system would be "generally available" in the second half of 2006. In June 2006, PSI publicly described its then-current activities as involving beta-test customer placements and initial early ship program shipments, as well as establishing a "direct and channel sales force," and "ISV relationships". In July 2006, PSI issued a press release stating that, "Later this year, PSI expects to deliver z/OS® compatible servers that use dual-core processor technology to address the performance requirements of more than 90 percent of the z/OS® installed base." In the Fall of 2006, PSI publicly demonstrated its infringing emulator systems in, among other places, Baltimore, Maryland; Houston, Texas; and San Jose and San Francisco, California; identified beta customers; and stated that its emulator systems would be generally available in the fourth quarter of 2006. During that same period, PSI actively marketed and offered for sale its emulator systems to potential customers, and publicly stated that a PSI system is installed and in use at a customer location in New York. IBM remains unwilling to license its patents to PSI or its software for use on PSI's emulator systems.. Accordingly, the parties' dispute is now ripe.
PSI denies that its products infringe the asserted IBM patents and denies that the parties' dispute was ripe as of the filing of IBM's complaint. PSI otherwise admits the allegations in paragraph 89.
90.
In addition to PSI's own activities, beginning in November 2006, one of PSI's licensees and marketing partners launched a new web site trumpeting the availability of one PSI emulator and the imminent availability of another. PSI's emulator systems are now being effectively marketed and offered for sale to potential customers, including potential customers in New York.
PSI admits that a distributor began marketing IBM-compatible mainframes containing PSI firmware in November 2006, that the distributor's web site announced the availability of those products and the imminent availability of additional open system mainframes containing PSI technology, and that the distributor is actively marketing those products and offering them for sale in New York and elsewhere. PSI denies the remaining allegations of paragraph 90.
91.
PSI (directly and/or through its licensees and marketing partners) has expressly and impliedly advised potential customers that they will be able to license IBM's mainframe operating systems and other software for use on PSI's emulator systems; has offered to indemnify customers against claims based on their use of PSI emulator systems, and has falsely stated, among other things, that (a) PSI's systems "will run" the "latest" IBM operating systems; (b) IBM software will be available for licensing for use on PSI's systems; (c) IBM will license its operating systems for use on PSI's emulator systems in a "business as usual" manner; (d) licensing of 64-bit software from IBM is available for PSI's systems but not for a competing emulator; (e) PSI is in discussion with IBM concerning software pricing for PSI systems and PSI will take care of software licensing issues with IBM; (f) software pricing for z/OS® will be the same as the price of that software when licensed on certain IBM machines; (g) PSI's systems have what PSI describes as "advanced partitioning capabilities that allow customers to control z/OS-based software licensing fees by isolation of individual workloads or logical server"; (h) PSI's systems will involve the use of a "[r]educed z/OS image"and therefore "qualify" for lower IBM software licensing rates for z/OS® and other IBM software; and has further stated that (i) their lawyers are "ready for anything" and are prepared to sue IBM over a refusal to license IBM software for use on PSI's emulator systems or the imposition by IBM of higher licensing fees for software used on PSI's systems than for software licensed for use on allegedly comparable IBM mainframe systems. As PSI reasonable expected, these statements and threats were communicated to IBM.
PSI admits that its products will run the latest IBM operating system and that its products have advanced partitioning capabilities that allow customers to control z/OS based software licensing fees by isolation of individual workloads on logical servers, but not in any way contrary to IBM's licensing rules. PSI has no knowledge as to whether the alleged "statement and threats" have been communicated to IBM. PSI otherwise denies the allegations of paragraph 91.
92.
As a result of these and other activities, an article appeared in a trade publication on September 26, 2006 entitled "A Joint Assault on the Mainframe Hardware Market." The article, which was subsequently posted on PSI's web site, described PSI as having a series of computers "that can load and run software written for the [IBM] System z9 and its antecedents" and that are compatible with "IBM's current 64-bit processor architecture." The article asserted that PSI has "rights to obtain IBM software licenses, and the legal know-how required to preserve and extend these rights," and suggested that with the "commercial marketing of PSI systems." IBM "will supply and support its full range of mainframe software products."
PSI admits that the references article appeared in a trade publication on September 26, 2006 and contained the quoted passages, but denies the allegation that the publication of the article resulted from "these and other activities" on the ground that it is too vague to permit a response.
93.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 92 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-92 of the Amended Complaint.
94.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '261 patent by practicing one or more claims in the '261 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
95.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '261 patent by contributing to or actively inducing the infringement by others of the '261 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
96.
PSI has willfully infringed the '261 patent.
Denied.
97.
PSI's infringement of the '261 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
98.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
99.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
100.
Unless PSI is enjoined by this Court from continuing its infringement of the '261 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
101.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 100 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-100 of the Amended Complaint.
102.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '520 patent by practicing one or more claims in the '520 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
103.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '520 patent by contributing to or actively inducing the infringement by others of the '520 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
104.
PSI has willfully infringed the '520 patent.
Denied.
105.
PSI's infringement of the '520 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
106.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
107.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
108.
Unless PSI is enjoined by this Court from continuing its infringement of the '520 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
109.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 108 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-108 of the Amended Complaint.
110.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '709 patent by practicing one or more claims in the '709 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
111.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '709 patent by contributing to or actively inducing the infringement by others of the '709 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
112.
PSI has willfully infringed the '709 patent.
Denied.
113.
PSI's infringement of the '709 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
114.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
115.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
116.
Unless PSI is enjoined by this Court from continuing its infringement of the '709 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
117.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 116 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-116 of the Amended Complaint.
118.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '678 patent by practicing one or more claims in the '678 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
119.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '679 patent by contributing to or actively inducing the infringement by others of the '678 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
120.
PSI has willfully infringed the '678 patent.
Denied.
121.
PSI's infringement of the '678 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
122.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
123.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
124.
Unless PSI is enjoined by this Court from continuing its infringement of the '678 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
125.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 124 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-124 of the Amended Complaint.
126.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '106 patent by practicing one or more claims in the '106 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
127.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '106 patent by contributing to or actively inducing the infringement by others of the '106 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
128.
PSI has willfully infringed the '106 patent.
Denied.
129.
PSI's infringement of the '106 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
130.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
131.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
132.
Unless PSI is enjoined by this Court from continuing its infringement of the '106 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
133.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 132 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-132 of the Amended Complaint.
134.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '495 patent by practicing one or more claims in the '495 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
135.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '495 patent by contributing to or actively inducing the infringement by others of the '495 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
136.
PSI has willfully infringed the '495 patent.
Denied.
137.
PSI's infringement of the '495 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
138.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
139.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
140.
Unless PSI is enjoined by this Court from continuing its infringement of the '495 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
141.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 140 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-140 of the Amended Complaint.
142.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '789 patent by practicing one or more claims in the '789 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
143.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '789 patent by contributing to or actively inducing the infringement by others of the '789 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
144.
PSI has willfully infringed the '789 patent.
Denied.
145.
PSI's infringement of the '789 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
146.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
147.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
148.
Unless PSI is enjoined by this Court from continuing its infringement of the '789 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
149.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 148 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-148 of the Amended Complaint.
150.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '851 patent by practicing one or more claims in the '851 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
151.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '851 patent by contributing to or actively inducing the infringement by others of the '851 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
152.
PSI has willfully infringed the '851 patent.
Denied.
153.
PSI's infringement of the '851 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
154.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
155.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
156.
Unless PSI is enjoined by this Court from continuing its infringement of the '851 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
157.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 156 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-156 of the Amended Complaint.
Denied.
158.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '002 patent by practicing one or more claims in the '002 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
159.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '002 patent by contributing to or actively inducing the infringement by others of the '002 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
160.
PSI has willfully infringed the '002 patent.
Denied.
161.
PSI's infringement of the '002 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
162.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
163.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
164.
Unless PSI is enjoined by this Court from continuing its infringement of the '002 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
165.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 164 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-164 of the Amended Complaint.
166.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe, literally and/or under the doctrine of equivalents, the '812 patent by practicing one or more claims in the '812 patent in the manufacture, use, offering for sale, and sale of PSI's emulator systems.
Denied.
167.
In violation of 35 U.S.C. § 271, PSI has infringed and is continuing to infringe the '812 patent by contributing to or actively inducing the infringement by others of the '812 patent by providing PSI's emulator systems and offering to indemnify customers against claims based on the use of those emulator systems.
Denied.
168.
PSI has willfully infringed the '812 patent.
Denied.
169.
PSI's infringement of the '812 patent will continue after the service of this Amended Complaint unless enjoined by the Court.
Denied.
170.
As a result of PSI's infringement, IBM has suffered and will suffer damages.
Denied.
171.
IBM is entitled to recover from PSI the damages sustained by IBM as a result of PSI's wrongful acts in an amount subject to proof at trial.
Denied.
172.
Unless PSI is enjoined by this Court from continuing its infringement of the '812 patent, IBM will suffer additional irreparable harm and impairment of the value of its patent rights. Thus, IBM is entitled to an injunction against further infringement.
Denied.
173.
IBM realleges and incorporates herein the allegations of paragraphs 1 through 172 of this Amended Complaint as if fully set forth herein.
PSI incorporates by reference its responses to paragraphs 1-172 of the Amended Complaint.
174.
IBM owns trade secrets with respect to its computer architectures. Certain of these trade secrets - including information that disclosed various features of IBM's architectures not described in the PoP and IBM's actual implementation of those features - were licensed to Amdahl as Technical Information pursuant to the TIDA and TILA.
PSI is without knowledge or information sufficient to form a belief as to the first sentence of paragraph 174, and therefore denies those allegation [sic]. PSI admits that IBM licensed to Amdahl certain information that was not disclosed in the PoP. PSI otherwise denies the allegations of paragraph 174.
175.
IBM's trade secrets derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from their disclosure and use. These IBM trade secrets give IBM a significant advantage over its existing and would-be competitors, including PSI, and the advantage would be lost if companies like PSI were able to gain access to and use them, and to benefit from their use in product development programs, without IBM's consent.
Denied inasmuch as this paragraph relates to the purported trade secrets alleged to have been misappropriated by PSI. To the extent the allegations relate to other purported trade secrets that may be owned or created by IBM, PSI is without knowledge or information sufficient to form a belief, and therefore denies those allegations.
176.
The Technical Information that IBM disclosed to Amdahl under the TIDA and TILA generally was derived from a confidential version of the PoP and from other confidential architecture documents. Confidential aspects of IBM's architecture disclosed to Amdahl are still maintained today in a confidential version of the PoP and in other confidential documents.
PSI admits that the technical information disclosed to Amdahl may have initially been derived from a version of the PoP that was different from the public version of the PoP. PSI denies the remaining allegations of paragraph 176.
177.
IBM has made reasonable efforts to maintain the confidentiality of its Technical Information.
Denied inasmuch as this allegation relates to the purport