The opinion of the court was delivered by: ARTHUR D. SPATT
The defendant David W. Bryan ("defendant" or "Bryan"), was employed by the plaintiff Computer Associates International, Inc. ("Computer Associates" or "CA"), for approximately seven years starting in 1982. CA is a Delaware corporation with its principal place of business in Garden City, Long Island, New York. Upon commencing his employment with CA as a sales representative in the Chicago office, Bryan signed an employment agreement, in which he agreed not to use or misappropriate any trade secret or confidential information for his own benefit or for the benefit of any other person or entity. Upon his departure in July, 1989, Bryan also signed a "departing employee agreement", which again reiterated that he would not disclose or use any trade secrets or confidential information gathered during the course of his employment with CA.
In 1981, the plaintiff Howard A. Rubin ("Rubin"), through his wholly-owned corporation Rubin Systems, Inc., began marketing a computer software product that permits users to estimate the time, staff, risks, money required and type of computer hardware it would take to develop new software or modify existing software applications. This system was made up of several products, based loosely on an earlier IBM model, and was called "Quest".
In 1982, by agreement, Rubin granted a license to Management and Computer Services, Inc. ("MACS"), giving MACS exclusive rights to use and sell "Quest" in exchange for royalty payments. By agreement in 1985, Computer Associates acquired all of the MACS rights under the agreement with Rubin. Since that time, CA has used the tradenames "CA-ESTIMACS" and "CA-PLANMACS" for that product. CA alleges that it has invested millions of dollars in improving, designing, enhancing and guarding these programs, and that they contain valuable trade secrets and confidential information.
From mid- to late-1987, Bryan was a member of the CA-ESTIMACS sales force and later became an ESTIMACS product manager responsible for marketing the product. During 1988 and 1989, while in the employ of CA, Bryan worked on software similar to the ESTIMACS system which would also permit a user to estimate the effort, cost and risks in developing software programs. He called this program "HIQ". Bryan demonstrated the HIQ product to various co-employees at CA.
Bryan left the employ of CA in July, 1989 and ultimately formed a corporation known as Application Development Technologies, Inc. ("ADT"), a California corporation located in Dallas, Texas, which is also a defendant in this case. Bryan is the President and the sole shareholder of ADT. While at ADT, Bryan has been testing and marketing the AD/TEC program, which, according to CA, utilizes the trade secrets embodied in CA's programs. CA also contends that the AD/TEC program is actually based on the HIQ product developed by Bryan while in the employ of CA.
The plaintiffs commenced this action against Bryan and ADT, alleging causes of action based on misappropriation of trade secrets, breach of employment agreement, breach of fiduciary duty and unfair competition. The plaintiffs seek compensatory damages, punitive damages and injunctive relief. At this juncture, the plaintiffs move for a preliminary injunction pursuant to Fed. A Civ. P. 65(a), to prevent Bryan and ADT from misappropriating and using CA's trade secrets, specifically the trade secrets combined and contained in the CA-ESTIMACS program, allegedly used to create and develop the defendants' AD/TEC program.
ESTIMACS is a software product which estimates the resources required to develop new software or modify existing software. As good an explanation as any provided to the Court of the purpose of ESTIMACS is set forth in the testimony of Marion Harlow, as follows:
"Q Perhaps you can describe for the Court an example you would give at the seminars that you gave.
A We always used the same example. It was a financial system. In a financial system you have accounts receivable, accounts payable, you have a billing system, you have a general ledger.
A I am sorry. Those are all the different what would be considered sub-systems of a financial system. And what the developers would actually do is to code -- to actually write programs in COBOL or PL-I or whatever the computer language is, to actually allow the computer to compute the billing for the company. That's the best I can do in layman's terms.
Q And Estimacs would be able to tell you what with respect to developing this system?
A How many woman hours or staff hours it would take to build the project. It would also tell you how many people were going to be required, insofar as how many project leaders, how many system analysts, how many programers, how much it was going to cost and how long it was going to take" (Tr. at pp. 1128-29).
On January 18, 1991, this Court signed an Order to Show Cause, scheduling a hearing on the motion for a preliminary injunction for January 25, 1991. At that time, the Court also temporarily sealed the affidavits and exhibits in support of the motion due to the alleged trade secrets and confidential information contained in the papers.
At the request of counsel, the commencement of the hearing was adjourned several times to permit the defendants to file papers in opposition. The Court thereafter began the hearing on the motion for preliminary injunction on February 22, 1991, and intermittently continued the hearing over the course of several months until its conclusion on July 19, 1991. Upon the conclusion of the hearing, in order to assist the Court in its determination, the parties submitted proposed findings of fact and conclusions of law (see Rule 23 of the Civil Rules of the United States District Court for the Eastern District of New York). In the final stage of the hearing, summations were heard by the Court on October 7, 1991.
After the hearing was terminated, the parties continued to submit post-hearing letters, affidavits and memoranda of law. By letter dated November 22, 1991, the Court advised counsel that it would not consider the post-hearing submissions or any issues raised therein, in the absence of a formal motion on notice (cf. United States v. Wallach, 935 F.2d 445, 743 n.1 [2d Cir. 1991] [Altimari, J., concurring] [post-argument submissions on appeal are "looked upon with extreme disfavor"], citing United States v. Bortnovsky, 820 F.2d 572, 575 [2d Cir. 1987] [per curiam]).
In the interim, without waiving any rights, counsel for the plaintiffs consented to the defendants selling and marketing the subject products.
Pursuant to Fed. R. Civ. P. 52(a), set forth below are the Court's required findings of fact and conclusions of law (see Tekkno Laboratories, Inc. v. Perales, 933 F.2d 1093, 1097 [2d Cir. 1991]; Society for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1088 [2d Cir. 1990] see also Weitzman v. Stein, 897 F.2d 653, 658 [2d Cir. 1990] [district court "must" set forth reasons for grant or denial of preliminary injunction]).
Subject matter jurisdiction over this action exists pursuant to 28 U.S.C. § 1332, since the plaintiffs and defendants are of diverse citizenship, and the amount in controversy exceeds $ 50,000.
B. Standard on Preliminary Injunction
The grant of preliminary injunctive relief is considered an "extraordinary" ( Patton v. Dole, 806 F.2d 24, 28 [2d Cir. 1986]), and "drastic" ( Borey v. National Union Fire Ins., 934 F.2d 30, 33 [2d Cir. 1991]) remedy. Accordingly, in order to obtain a preliminary injunction in the Second Circuit, it is now well established that the movant must clearly establish the following required elements:
"(1) irreparable harm or injury, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make "them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the movant" ( Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 [2d Cir. 1979] [per curiam]).
(See also Western Publishing Co. v. Rose Art Indus., Inc., 910 F.2d 57, 59 [2d Cir. 1990]; LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 74 [2d Cir. 1985]; Vera, Inc. v. Tug "Dakota", 769 F. Supp. 451, 454 [E.D.N.Y. 1991]; Ecolab Inc. v. Paolo, 753 F. Supp. 1100, 1109 [E.D.N.Y. 1991]).
A showing of probable irreparable harm is usually considered the single most important requirement (see Reuters Ltd. v. United Press International, Inc., 903 F.2d 904, 907 [2d Cir. 1990]), and an applicant must establish more than a mere "possibility" 'of irreparable harm, namely, "that it is likely to suffer irreparable harm if equitable relief is denied" ( JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 [2d Cir. 1990] [emphasis in original]). Where money damages are adequate compensation, a preliminary injunction will not issue Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., supra, 596 F.2d at p. 72).
Of particular relevance to this action is the recognition by the Second Circuit that the loss of "trade secrets" is not measurable in terms of money damages (see FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 [2d Cir. 1984] [per curiam] ["A trade secret once lost is, of course, lost forever"]), and is thus considered "irreparable harm."
Moreover, the potential loss of an industry leader's present market and loss of the advantage of being the pioneer in the field and the market leader, may constitute irreparable harm. (See, for example, Natural Organics, Inc. v. Proteins Plus, Inc., 724 F. Supp. 50 [E.D.N.Y. 1989]). As to "likelihood of success," the movant "need not show that success is an absolute certainty. It need only be shown that the probability of the movant prevailing is better than fifty percent" ( Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 [2d Cir. 1985]).
The defendants contend that the plaintiffs' delay in seeking this preliminary injunctive relief constituted laches. Even though delay may not rise to the level of "laches", it may nonetheless indicate the absence of irreparable harm (see Majorica, S.A. v. R.H. Macy & Co., 762 F.2d 7, 8 [2d Cir. 1985]). As the Second Circuit noted in another context namely, a trademark infringement action:
"Preliminary injunctions are generally granted under the theory that there is an urgent need for speedy action to protect the plaintiffs' rights. Delay in seeking enforcement of those rights, however, tends to indicate at least a reduced need for such drastic, speedy action. Gillette Co. v. Ed Pinaud, Inc., 178 F. Supp. 618, 622 (S.D.N.Y. 1959). Accord Le Sportsac, Inc. v. Dockside Research, Inc., 478 F. Supp. 602, 609 (S.D.N.Y. 1979)."
( Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 [2d Cir. 1985]).
The Court finds that the plaintiffs did not delay to such an extent that laches is a bar to the preliminary injunctive relief sought. The record demonstrates that in the time period prior to commencing this action, the plaintiffs conducted an extensive investigation in order to gather the necessary facts required to support this complex action. (See, for example, Borey v. National Union Fire Ins. Co., 934 F.2d 30 [2d Cir. 1991] ["undue delay" of three years]; Gilder v. PGA Tour, Inc., 936 F.2d 417 [9th Cir. 1991] [the Court found the plaintiffs had pursued their claim with reasonable diligence in taking five to seven months to file for a preliminary injunction]).
D. Unfair Competition Based on Missappropriation of Trade Secrets
Circuit Judge Altimari recently enunciated the law of misappropriation of trade secrets, also in the context of an action involving computer software, as follows:
"A plaintiff claiming misappropriation of a trade secret must prove: '(1) it possessed a trade secret, and (2) defendant is using that trade secret in breach of an agreement, confidence, or duty, or as a result of discovery by improper means'"
( Integrated Cash Mgt. Servs., Inc. v. Digital Transactions, Inc., 920 F.2d 171, 173 [2d Cir. 1990] [citations omitted]).
The Second Circuit in Integrated Cash, supra, approved the definition of a "trade secret" from the Restatement of Torts § 757, comment b, which has been adopted as the law in New York, and provides:
"'A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it'" (920 F.2d at p. 173 [citations omitted]).
Under New York law, the following factors are considered relevant in determining whether a "trade secret" in fact exists:
"(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others"
( Eagle Comtronics, Inc. v. Pico, Inc., 89 A.D.2d 803, 803-04, 453 N.Y.S.2d 470, 472 [4th Dep't 1982] quoting Restatement of Torts § 757, comment b).
"The most important consideration remains whether the information was secret. . . . (and) Secrecy is a question of fact" ( Lehman v. Dow Jones & Co., 783 F.2d 285, 298 [2d Cir. 1986]).
Chief Judge Platt also recently discussed misappropriation of trade secrets under New York law, as follows:
"An aggrieved plaintiff need not show that the information it seeks to protect is vital to its business, but only that the information would provide the unauthorized user of it with an unfair competitive advantage which it would not otherwise have enjoyed. Greenwich Mills Co., Inc. v. Barrie House Coffee Co., Inc., 91 A.D.2d 398, 405, 459 N.Y.S.2d 454, 459 (2d Dep't 1983). In determining whether matter is protectable as a trade secret, courts frequently examine the method by which defendant acquired it, e.g., such as by stealing or copying. Ferranti Elec., Inc. v. Harwood, 43 Misc.2d 533, 251 N.Y.S.2d 612, 619-620 (Sup.Ct. Nassau County 1964).
Moreover, even where the information would not otherwise qualify as a trade secret, the unauthorized physical taking and exploitation of internal company documents, including detailed customer information by an employee for use in his future business or employment is to be enjoined as unfair competition . . ."
( Ecolab Inc. v. Paolo, supra, 753 F. Supp. at p. 1111 [citations omitted]).
Also, "a former employee can be prohibited from taking trade secrets from his former employer whether or not there exists an employment contract which prohibits competition" (Le Juda, Inc. v. Diversified Recreations, Inc., N.Y.L.J., Nov. 25, 1991, p. 25, col 6 [Sup. Ct. N.Y. County 1991], citing Hecht Foods, Inc. v. Sherman, 43 A.D.2d 850, 351 N.Y.S.2d 711 [2d Dep't 1974]).
Matters of public or general knowledge in an industry are incapable of being designated as a "trade secret" (see Minnesota Mining and Mfg. Co. Inc. v. Technical Tape Corp., 23 Misc. 2d 671, 192 N.Y.S.2d 102 [Sup. Ct. Westchester County 1959], aff'd, 15 A.D.2d 960, 226 N.Y.S.2d 1021 [2d Dep't 1962]). However, trade secrets may nevertheless exist where the information consists of an accumulation or combination of generic computer programs that are in the public domain, but are linked together, share information or form a unique combination in a way not generally known outside the business or industry (see Integrated Cash Mgt., supra, 920 F.2d at p. 174). That is, even though independently each of the "building blocks" may consist of general or public knowledge, collectively the various components may form a "unique whole" (id.).
Further, with regard to an employment agreement restricting the use of confidential information, such as the employment agreements at issue, under New York law, an agreement is enforceable if the restriction is reasonable in scope and duration and necessary to protect against the disclosure of trade secrets or other confidential information (see Business Intelligence Services, Inc. v. Hudson, 580 F. Supp. 1068 [S.D.N.H. 1984]; Continental Group, Inc. v. Kinsley, 422 F. Supp. 838, 843 [D.Conn. 1976]; Reed Roberts Assoc., Inc. v. Strauman, 40 N.Y.2d 303, 308, 386 N.Y.S.2d 677, 680, 353 N.E.2d 590 ; Purchasing Assocs., Inc. v. Weitz, 13 N.Y.2d 267, 272, 246 N.Y.S.2d 600, 604, 196 N.E.2d 245 ). Mindful of these principles of law, the Court turns to the evidence adduced at the hearing.
The following summarizes the testimony and evidence adduced at the hearing, which constitutes the Court's findings and conclusions (see Fed. R. Civ. P. 52 [a]).
Plaintiff HOWARD A. RUBIN, holds a Ph.D. in computer science and is a Professor and Department Chair of Computer Science at Hunter College. Rubin testified that he is the creator of CA-ESTIMACS and CA-PLANMACS. He is retained by Computer Associates as a consultant in product development.
Another dimension to this software system is not only to allow the user to estimate what it takes to do this work, but to allow the user to look at different ways of construction and at the relevant impact, which is called a "life cycle." As explained by Rubin:
"Q At each of these life cycles that you identified, they appear in the Estimacs product and is capable of arriving as an estimate of each of the life cycles?
A Yes. An estimate of the effort in each of the life cycles, the costs associated with each of the life cycles, the kinds of staff that are needed in each of the life cycle, the number of staff people that are needed in each life cycle phase. So Estimacs in fact gives each user a complete picture of all estimate dimensions, plus the staffing and allows it to look with the life cycle to see what the proposed projects look like." (Tr at p. 37).
The clearest definition of a life cycle was given by the defendant Bryan as follows:
"Q Could you describe for the Court what a life cycle is. Slowly, please.
A A life cycle within the context of application development would be the steps and procedures taken from the beginning of a project's conception to the time it is finally installed and approved and all of the steps that it takes to do that" (Tr. at p. 1463)
A key element of ESTIMACS is the use of a dialogue where the user answers a series of questions, which Rubin explained as follows:
"It focuses on effort projection, staff cost and duration projection, risk, financial and a host of other factors.
The way that a user applies Estimacs, is that the Estimacs product interacts with its user through a dialogue in which they are asked a series of questions. Estimacs was designed to ask questions that are available very early in the process of developing systems. This was specifically done to contrast with the way Estimacs tools have worked prior to the existence of Estimacs" (Tr. at p. 38) (emphasis supplied).
The effort model of ESTIMACS allows its users to describe the software system they wish to construct and the life cycle they intend to use. Upon answering questions and running through formulas, "ESTIMACS can then predict the expected effort required both at the total project level and at each life cycle phase."
In addition, ESTIMACS has a staffing and cost model, which predicts the duration of the project, what size team should be deployed to carry out that effort, over what period of time, at what cost and what skilled classification of persons are needed, including managers, analysts and programmers.
Significantly, there are "equations" used in the staffing and cost models and in the maintenance model. These equations have never been published and only appear in the "source code" for the product.
Another term in the computer lexicon is the "architecture," which refers to structure of the product - how its individual components are organized; how they relate together; and how someone interacts with the products.
Asked to describe the architecture of ESTIMACS, Rubin responded:
"Estimacs has an architecture that has models for effort. It has a unique model for predicting the maintenance efforts which is the unique feature of the architecture. Has a model for cost, a model for risk, another model for what we call portfolio impact, another model dealing with financial constraints and considerations, another piece that deals with a technical aspect of computing which is given the name function points spelled as it sounds, function points.
It is a method that scientists at IBM developed to understand the size of the computer system.
It has another model that deals with assessing the value of a computer system to a business organization.
These are what I call the architectural building blocks of Estimacs. The other aspects of the architecture is how those components feed each other or interfaces would be more of a jargon word, but feed each other, and how a person interfaces, works with them would be a better word perhaps.
The other basis of architecture for Estimacs I would sort of classify is look and feel how it works with somebody, where you answer a set of questions and you see the results of answering those questions in terms of graphic feedback. And then you are given some analysis of how your answers influenced the result you got . . ." (Tr. at pp. 42-4).
Rubin testified that until the development of defendants' product (AD/TEC), no other estimation product was available in the market that utilized architecture similar to that of ESTIMACS.
"Estimacs is the only product that allows the user -- until the defendant's products -- that allows the user separate entries to let me look at effort, let me look at maintenance separately and then piece the puzzle together. So it is the architecture which is very, very unique" (Tr. at pp. 44-5).
The software was developed by Rubin beginning in 1978. He developed the hypothesis that there is a way to estimate projects from business based information early in the software development and maintenance life cycle. He then embarked on a "multi-point" research program involving models in universities and in commerce. After this research he concluded that, at that time, there was no research or products specifically addressing the issue of estimating entire life cycles from a business base.
Initially, Rubin entered into a contract with a company named Management In Computer Service, known as MACS; (hence, the origin of the "macs" in ESTIMACS). When MACS assigned his contract to Computer Associates, a one page document was signed stating that the parties would abide by all the trade secrets and confidentiality in the original contract between Rubin and MACS.
Getting to a crucial part of the case, Rubin explained his use of an IBM book which is designated as defendants' exhibit "A". This book was copyrighted by International Business Machines Corp. in 1980. It is part of the "SRA Management Library" and is entitled "Estimating Application Development Projects," a Personal Reference Guide ("The IBM Manual").
A major thrust of the defense in this case is that Rubin obtained important information from the IBM manual and this material, available to anyone who purchased the manual, rather than originally conceived material, was used to create ESTIMACS.
Rubin himself described his use of the IBM manual, as follows:
"Now, in acquiring materials that I got the first step and research is typically to recreate the results of other researchers. And in going through all the material I culled, and this goes from the period of 1978 to 1981, the most promising piece of work I found in the area of effort by work done by IBM that was published in a book by IBM called Estimating the Application Develop Process. In that book IBM had a question set which was used to estimate how long it would take to design a system, not to design and dole the system, just to design the system.
That looked like the most promising piece of work to springboard off of. The limitations of that work had to do with, again, design focus only and only in the context of a traditional life cycle.
The next step, and this was specifically with regard to the IBM model -- and let me describe the IBM model. The IBM model for effort consisted of a list of 25 questions in a specific order, and where each question had what is called a waiting factor associated with it. So you give the answers to the questions, and multiply that answer to the questions by a number and feed that into an equation.
After feeding the numbers into the equations the results would be an estimate of design effort.
IBM had a very, very small sample size. Nor did they have any kind of accurate method in places to go out and estimate full development effort from that.
What I then decided to do was to attempt to use that question set as a basis for estimating full life cycle development. And that this was not an easy task.
Now, the steps that I went through, IBM had 25 questions. Each question had a weight associated with it and a series of questions with respect to design effort. These equations, of course, worked over the IBM sample data. But IBM did not attempt to replicate reliably total system development effort.
I then obtained project data from a number of sources to try to build the model over a broader base.
through other activities I had done through the consulting field through Bell Labs and other sources, I was able to consult data and bring up a total base of several hundred projects in which I then attempted to redo the IBM question set and make it estimate total project development effort.
What this involved was extensive work. And the reason the work is extensive because imagine for a moment you have 25 questions which were part of that set. And the issue in developing an estimation model was to ordering the questions so a user can answer them in a sensible fashion; secondly, determining the appropriate weights for the question; thirdly, developing coefficients to successfully translate the design estimates into a total system estimate within an acceptable tolerance that was reliable" (Tr. at pp. 49-51) (emphasis supplied)
In sum, Rubin testified that he developed ESTIMACS by scanning the existing research, acquiring data from his own source and other sources in the field and selecting the IBM manual question set as a basis for building a total life cycle productive model. Thus, he evolved new life cycles through the addition of new capabilities. This occurred between 1978 and 1981.
In 1981 Rubin marketed his new estimation product under the name of Quest (short for quick estimator). At that point the product consisted primarily of the effort model with traditional life cycle information. He had good marketing success with the product. By 1982 he expanded the product to include a staffing and cost estimation model.
In 1982, gaining feedback from hundreds of users, Rubin continued to improve his product. At that time, he entered into the contractual relationship with MACS. He then added a software maintenance model, which is an estimating system to compute what it takes to change existing software systems. To achieve this result Professor Rubin had to transform the initial question set into a parallel maintenance question set. He developed a new set of weights and created a maintenance model, which he described as follows:
"I would say that this is probably one of the bigger breakthroughs in some sense than the development model because there is no published reference anywhere to using the IBM question set in any literature, IBM or otherwise, to estimate software maintenance" (Tr at p. 58).
The new mathematics developed in connection with the maintenance model have not been published, but the question set was published in an article in 1985. According to Rubin, the new mathematics do not appear anywhere in print.
"Q Have the new weights and coefficients that you have developed in connection with the development of the maintenance model of Estimacs ever been published, Professor Rubin?
A No. The new weights and coefficients has not been. The only thing that has been is through a professional society publication we described what the question set looks like, describing what the questions we asked.
THE COURT: The new weights and what?
MS. STEVENS: Coefficients.
A The details of the model do not appear anywhere in print.
Q If those are also only embodied in the source code?
A Only embodied in the source codes.
Q Is the source code provided to the licensee of the product?
A Definitely not. It is a matter of Computer Associates' policy" (Tr. at p. 62).
As stated previously, a "life cycle" is a way of constructing a system. Life cycles have steps called phases. Rubin developed the coefficient for ESTIMACS by his research and observations. These coefficients did not appear in the IBM literature and they have never been published without prohibition on disclosure or copyright notices.
The target markets of ESTIMACS are large commercial organizations such as banks, insurance companies and manufacturers who develop or maintain internal computer systems. The product is typically acquired by management level executives who are called project managers.
On cross-examination, Rubin testified that ESTIMACS is the only product of its kind that works from a high level question set and does not require lines of code or function point information as its primary input.
Capers Jones is another expert in this field who developed estimation products called SPQR/20 and checkpoint, which are of different architecture and have other features different from ESTIMACS. In the market, ESTIMACS has ten times more users than SPQR, which is its major competitor. Rubin described some of the unique features of ESTIMACS, as follows:
"Q Thank you. Would you say one of the unique qualities of Estimacs is the series of non-technical and general questions?
A I would say the unique aspects of Estimacs is the ability to turn the answers to those non-technical questions into total life cycles. The existence of a set of questions doesn't make it unique. The ability to turn it into an outcome of value to somebody so it would pay for the product is of worth" (Tr. at pp. 84, 85)
Rubin again conceded that the original source of the questions is the IBM manual and that he reproduced the IBM question set in ESTIMACS with changes in the order of the questions and in the weights of several of the questions. He changed the IBM weights because ESTIMACS was designed to estimate "total project estimates or effort" (Tr. at p. 90). He further defined a weight as "a multiplier for another number that adjusts it into a linear equation or non-linear equation" (Tr. at p. 89).
Significantly, Rubin testified that these weights or multipliers were never published. Further he stated that he recast the IBM material "to come up with new weights and new coefficients" (Tr. at p. 92).
Again, Rubin testified about his changing the IBM material, as follows:
A We look at groups of equations. So my mission in this was to use the IBM ingredients as a base and to be able to generate something new from it.
So, we have the IBM question set, the 25 questions, reordered and reweighted in a significant fashion. And the results from that went into a set of equations, the same base set that IBM used, and then modified . . . to be able to use total estimation, and then mapped into the life cycle distribution which we developed" (Tr at p. 93).
This testimony as to changes made by Rubin to the IBM manual material was never refuted.
Rubin defined another highly technical and important part of the ESTIMACS product called the "Source code," as follows:
"Q Give us a layman's definition of what a source code is?
A A course [sic] code for a computer product is the actual programing language listings of the instructions to the computer.
THE COURT: Just one minute now. The actual --
THE WITNESS: Programing language list of the instructions that have been written by the programer to enact the product to make it work. It is readable and it has to be translated into an internal machine language typically to be of use, and it is also ...