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This page presents a personal history of the case as captured in a series of e-mail messages sent by Evan Brown to his friends and colleagues. New messages will be added as the case unfolds.
Index - History Via E-mails
Page last updated 3 November 2003
Monday, October 27, 2003
DSC/Alcatel .vs. Evan Brown, the saga continues
I filed my Appellant's Brief
Tuesday, September 16, 2003
DSC/Alcatel .vs. Evan Brown, the saga continues
I appealed the final judgement to the Court of Appeals
Tuesday, September 17, 2002
DSC/Alcatel .vs. Evan Brown, the saga continues
Alcatel Optronics Cuts Jobs to Offset Revenue Drop (Associated Press)
Monday, August 26, 2002
DSC/Alcatel .vs. Evan Brown, the saga continues
I filed my First Amended Motion for New Trial last Monday
Tuesday, July 30, 2002
DSC/Alcatel .vs. Evan Brown, the saga continues
Article in the Dallas Morning News - "Alcatel can keep rights to software"
Saturday, July 27, 2002
DSC/Alcatel .vs. Evan Brown, the saga continues
Judge Henderson's FINAL JUDGEMENT
Sunday, June 30, 2002
DSC/Alcatel .vs. Evan Brown, the saga continues
Judge Marshall Denies Motion to Recuse (Judge Henderson)
Friday, June 21, 2002
DSC/Alcatel .vs. Evan Brown, the saga continues
Judge Henderson violated Texas Rules of Civil Procedures (Rule 215.2(b)
Monday, May 20, 2002
DSC/Alcatel .vs. Evan Brown, the saga continues
Judge Henderson issues a ruling which in effect makes all employees servants of their employers 24 hours a day, 7 days a week.
Tuesday, March 19, 2002
DSC/Alcatel .vs. Evan Brown, the saga continues
DSC files their "Second Amended Original Petition" (their lawsuit against me) and I filed my "Defendants Original Counterclaims" (my lawsuit against DSC)
Sunday, March 3, 2002
DSC/Alcatel .vs. Evan Brown, the saga continues
DSC filed a Motion for Summary Judgement last year and it appears that I was able to (through DSC's reply to my response) clearly raise a fact issue in dispute with regards to DSC's Motion for Summary Judgement. - IEEE magazine has an article on intellectual property which mentions this lawsuit
Thursday, November 8, 2001
DSC/Alcatel .vs. Evan Brown, the saga continues - First message this day
Thursday, November 8, 2001
DSC/Alcatel .vs. Evan Brown, the saga continues - Second message this day
Wednesday, July 18, 2001
DSC/Alcatel .vs. Evan Brown, the saga continues
Saturday, May 26, 2001
DSC/Alcatel .vs. Evan Brown, the saga continues
Wednesday, September 27, 2000
DSC/Alcatel .vs. Evan Brown, the saga continues
Friday, June 23, 2000
DSC/Alcatel .vs. Evan Brown, the saga continues
Thursday, January 20, 2000
DSC/Alcatel .vs. Evan Brown, the saga continues
Judge Henderson issued an ORDER - January 19, 2000
Thursday, January 13, 2000
DSC/Alcatel .vs. Evan Brown, the saga continues
Alcatel USA to Dismiss Suit Against Samsung
Tuesday, November 16,1999
DSC/Alcatel .vs. Evan Brown, the saga continues
Monday, June 21,1999
DSC/Alcatel .vs. Evan Brown, the saga continues
Friday, June 11,1999
DSC/Alcatel .vs. Evan Brown, the saga continues
Thursday, May 13,1999
DSC/Alcatel .vs. Evan Brown, the saga continues
Thursday, Apr 29,1999
DSC .vs. Evan Brown, the saga continues
Saturday, Jan 9,1999
DSC .vs. Evan Brown, the saga continues
Monday, Dec 7,1998
DSC .vs. Evan Brown, the saga continues
Friday, Aug 28,1998
DSC .vs. Evan Brown, update
Friday, Apr 20,1998
DSC .vs. Evan Brown, the saga continues (about round 20)
Friday, Feb 20,1998
DSC .vs. Evan Brown, the saga continues (about round 19)
Monday, Feb 16, 1998
DSC .vs. Evan Brown, the saga continues (about round 18)
Tuesday, Jan 13,1998
DSC .vs. Evan Brown, the saga continues (about round 17)
Wednesday, Jan 7,1998
DSC .vs. Evan Brown, the saga continues (about round 16)
Monday, Dec 29, 1997
DSC .vs. Evan Brown, goes onto the Internet
Thursday, Dec 11, 1997
DSC .vs. Evan Brown, the saga continues
Wednesday, Dec 10, 1997
DSC .vs. Evan Brown, the saga continues (about round 15)
Tuesday, Nov 18,1997
DSC .vs. Evan Brown, the saga continues (about round 14)
Friday, Nov 14,1997
DSC .vs. Evan Brown, the saga continues (about round 13)
Friday, Oct 24,1997
DSC .vs. Evan Brown, the saga continues (about round 12)
Thursday, Oct 23,1997
DSC .vs. Evan Brown, the saga continues (about round 11)
Monday, Oct 20,1997
DSC .vs. Evan Brown, the saga continues (about round 10)
Friday, Sep 26,1997
DSC .vs. Evan Brown, the saga continues (about round 9)
Thursday, Sep 25,1997
DSC .vs. Evan Brown (story published in Germany)
Thursday, August 25,1997
DSC .vs. Evan Brown, the saga continues (about round 8)
Tuesday, August 5,1997
DSC .vs. Evan Brown, the saga continues (about round 7)
Friday, July 18,1997
DSC .vs. Evan Brown, motion for contempt denied
Monday, July 14,1997
DSC .vs. Evan Brown, Wall Street Journal article
Thursday, July 10,1997
DSC .vs. Evan Brown, media day
Monday, June 30,1997
DSC .vs. Evan Brown, the saga continues (about round 6)
Friday, June 27, 1997
DSC .vs. Evan Brown, the saga continues
Monday, June 23, 1997
DSC .vs. Evan Brown, the ongoing saga, 6/23/97 update
Monday, June 16, 1997
DSC .vs. Evan Brown, the ongoing saga
Saturday, May 3, 1997
DSC .vs. Evan Brown, round 1
Friday, May 2, 1997
My 15 minutes of fame :->
DSC/Alcatel .vs. Evan Brown, the saga continues
I appealed the final judgement to the Texas Court of Appeals at Dallas: cause number 05-02-01678-CV.
The Court of Appeals ruled that the final judgement did not meet the requirements for a final judgement and abated and remanded the case back to Judge Henderson. DSC then filed a motion to non-suit all the claims in the suit except the breach of contract and declaratory judgement claims, and a motion to amend the final judgement. Judge Henderson granted DSC's motions and issued an amended final judgement in April 2003. I then filed a motion with the court of appeals to reinstate his appeal which was granted.
My Appellants Brief was filed October 13, 2003 and the Appellants Amended Brief was filed October 24, 2003. DSC's Appellee's Brief is due by November 26.
The Spring 2003 issue (Volume 21.3) of "The John Marshall Journal of Computer & Information Law" contains an article on this lawsuit "Alcatel USA, Inc. v. Brown: Does Your Boss Own Your Brain?" written by Jim C. Lai. If you have an interest in this litigation, I highly recommend you take a few minutes and read this article.
- Evan
DSC/Alcatel .vs. Evan Brown, the saga continues
I appealed the final judgement to the Court of Appeals at Dallas cause number 05-02-01678-CV. The Court of Appeals ruled that the final judgement did not meet the requirements for a final judgement and abated and remanded the case back to Judge Henderson. DSC then filed a motion to non-suit all the claims in the suit except the breach of contract and declaratory judgement claims, and a motion to amend the final judgement. Judge Henderson granted DSC's motions and issued an amended final judgement in April 2003. I then filed a motion with the court of appeals to reinstate his appeal which was granted.
I am waiting on the Collin County District Clerk to file a Supplemental Clerks Record so I can complete the Appellant's Brief.
The Court of Appeals approved my Motion to Extend the Time to File the Brief until Oct 12, 2003 to allow the court clerk time to file documents.
If anyone wants a copy of the brief, let me know and I'll have extra copies made. The brief with appendix hopefully will be under 100 pages and cost about $10 each.
Evan-
DSC/Alcatel .vs. Evan Brown, the saga continues
Looks like DSC/Alcatel in Plano is closing shop. I received the following Associated Press news release announcing the closings.
This won't end the lawsuit but it does appear the lawsuit will out last DSC's lawyers that sought steal my thoughts.
- Evan
Associated Press news release
Alcatel Optronics Cuts Jobs to Offset Revenue Drop
The Associated Press
PARIS (Dow Jones/AP) - The fiber-optics components unit of France's Alcatel Tuesday said it will cut its work force by two-thirds to offset a drop in revenue.Alcatel Optronics will go from 1,550 workers to around 1,000 by year-end, and to less than 500 by the end of 2003.
The cuts, and resulting decrease in fixed costs, should allow Alcatel Optronics to have a revenue break-even point of 40 million euros, or about $39 million, by the end of 2003, the company said.
Tuesday's restructuring plan follows several other moves by Alcatel Optronics to restructure its operations and adjust to the collapse in the optical network component market.
In June, it said it will close or sell several of its production sites, including one in Plano, Texas.
The company, once the fastest-growing division of French telecom-equipment maker Alcatel SA, now expects third-quarter revenue to fall 50 percent from the second quarter.
It had previously anticipated a 20 percent to 30 percent drop.
American Depositary Receipts of Alcatel Optronics tracking stock were at $2.47 in early trading Tuesday on the Nasdaq Stock Market, up 7 cents, or 2.9 percent.
DSC/Alcatel .vs. Evan Brown, the saga continues
I filed my First Amended Motion for New Trial last Monday http://www.unixguru.com/filings/Def_First_Amended_M_New_Trial.pdf
I filed my Notice of Appeal last Friday and I'm waiting for the court to schedule a hearing for my Motion for New Trial.
I have filed a Request for Findings of Fact and Conclusions of Law with the court which is due back to me in three weeks.
As a result of the news posting on www.law.com, www.theregister.co.uk, and www.slashdot.org, I have received contributions to my legal defense fund totaling almost $500.
On the fun side, see: http://www.dilbert.com/comics/dilbert/archive/dilbert-20020819.html
- Evan Brown
DSC/Alcatel .vs. Evan Brown, the saga continues
There is an article in the Dallas Morning News today regarding the lawsuit ("Alcatel can keep rights to software").
See http://www.dallasnews.com/business/stories/073002dnbusalcatel.819ae.html
The story left out lots of significant facts like:
-
Judge Henderson ruled on the facts in dispute, not a Jury as requested
Judge Henderson ruled that DSC had the rights to determine how the
ambiguities in the Agreement were interpreted, not the signing party
as required by contract law
Judge Henderson decided that my mental thoughts were along DSC's line of
business, work or investigations despite the fact DSC produced no
evidence that any such project existed, no one ever work on any such
project, former CEO Jim Donald even stated that DSC wasn't in that
business.
Judge Henderson denied me my Constitutional Civil Rights under the 13th
and 14th Amendments. Judge Henderson violated my 14th Amendment
rights to Equal Justice and Due Process by violating the Status Quo
of my "idea" which should have been protected by law. Judge Henderson
violated my 13th Amendment rights (Servitude/Slavery) by ordering
me to work for DSC's behalf without compensation for 100 days.
Judge Henderson receives significant campaign contributions from DSC.
Justice is for sale in Texas
Alcatel can keep rights to software
Judge rules company's intellectual property contract is legal
07/30/2002By VIKAS BAJAJ / The Dallas Morning News
Alcatel has won the legal rights to a former employee's software idea in a long-running lawsuit dealing with the scope of employment contracts and ownership of ideas and inventions.State District Judge Curt B. Henderson ruled Friday that Evan Brown's contract with the French telecommunications giant with U.S. headquarters in Plano gave it legal rights to his work.
Mr. Brown was also ordered to pay Alcatel's legal fees totaling $332,000.
Mr. Brown, who has been defending himself for the last year, said he will seek a new trial or an appeal.
"I had an idea that was only in my head," he said. "It did not exist. ... This is an extortion of an employee's idea."
DSC Communications, which Alcatel bought in 1998, sued Mr. Brown in 1997 for withholding an idea for software that can translate computer programs written in older languages to new languages.
At the time, experts said that if it worked, the idea could be worth millions of dollars.
An attorney who represented Alcatel said the decision reaffirms the validity of employment contracts.
"It's another indication that those agreements are appropriate," said Michael Lynn of Lynn Tillotson & Pinker LLP.
Mr. Brown has argued that he was working on his idea for 12 years before he worked for DSC and didn't spend company time on it.
The case may have important ramifications for the technology companies where workers largely deal in ideas, said Richard Mason, an information professor and director of the Maguire Center for Ethics and Public Responsibility at SMU.
"It's potentially a pivotal case for the information economy," Dr. Mason said. "It's certainly a cautionary case that raises the question of who owns the idea."
In January 2000, Judge Henderson ordered Mr. Brown to flesh out and disclose the idea so Alcatel could evaluate it. He finished the work in September 2000.
"Our scientists looked at it and found that there remains gaps in his disclosure," Alcatel spokesman Brian Murphy said. "It's not complete."
Mr. Brown said he ran into technical hurdles when transcribing the idea but was forbidden from working on it further by Judge Henderson.
Since the lawsuit began, Mr. Brown has declared bankruptcy, sold his Plano house and moved to a farm in Hamilton County. It's unclear how he will pay the $332,000 in legal fees.
"I have no assets," Mr. Brown said. "I am indigent, but I am still fighting."
Alcatel couldn't say if it will be able to collect the fees.
The case is one of several high-profile suits that Alcatel has waged against former employees and, in some instances, their new employers who it says stole and profited from the company's trade secrets.
It remains embroiled in a suit with networking giant Cisco Systems Inc., which acquired Richardson-based Monterey Networks in 1999. Alcatel says the start-up hired a team of engineers to gain Alcatel secrets and expertise. Cisco countersued Alcatel last year, saying the French company sabotaged its effort to develop a new product.
E-mail vbajaj@dallasnews.com
Copyright 2002 Belo Interactive
DSC/Alcatel .vs. Evan Brown, the saga continues
Thought you would be interested in the latest court developments.
Despite the fact that I requested a jury trial, Judge Henderson chose to try this case by deposition and affidavit. Judge Henderson granted DSC (Alcatel) all the relief they requested. I feel that I've been railroaded by Judge Henderson and his court staff.
The results are that Judge Henderson issued an ORDER granting DSC full legal right and title to the thoughts in my brain and ordered me to pay DSC's legal expenses.
The effect of this ruling is that employers in Texas can claim ownership of thoughts in their employees brains. Texas courts can and will uphold these employer claims. Texas courts can order an employee that has been fired to work for the former employer without compensation for time or expenses. What ever you have accomplished prior to going to work for your employer can become property of your your current employer. DSC has also sued numerous ex-employees for "Inevitable Disclosure" claiming that an ex-employee can not keep from disclosing DSC's proprietary information. This finds you guilty before you have disclosed anything, that is, you can be found guilty before you do anything wrong.
If you work for any company that contributes to election campaigns or lobbies any governmental agency, look out, you may be next.
Justice is for sale in Texas.
See:
-
http://www.pbs.org/wgbh/pages/frontline/shows/justice/howshould/
http://www.tpj.org/ (Texans for Public Justice )
I have filed a Motion for New Trial and if that is denied, I will file an appeal.
Despite the fact that I couldn't afford an attorney for myself, the court issued a judgement against me for $332,000 for DSC's attorney fees even though I am still in bankruptcy.
- Evan Brown
In the 219th Judicial District Court
of the State of Texas
Curt B. Henderson, Judge Presiding
No. 199-596-97
ALCATEL USA, INC. f/k/a DSC COMMUNICATIONS CORPORATION
vs.
EVAN BROWN
vs.
EVAN BROWN
FINAL JUDGEMENT
On October 10, 2001, Plaintiff filed its Motion for Summary Judgment on its Breach of Contract and Declaratory Judgment Claims ("Plaintiff's Summary Judgment Motion"). On December 21, 2001, the Court held a hearing on Plaintiff's Summary Judgment Motion, as well as other discovery matters. Proper and sufficient notice of this hearing was given to all parties of record, and both parties were present and announced ready to proceed. After hearing oral argument from both parties at the December 21, 2002 hearing, and in the interest of justice, the Court withheld ruling on Plaintiff's Summary Judgment Motion, and granted Defendant additional time to file addition responses, including additional evidence, in opposition to Plaintiff's Summary Judgment Motion. In accordance with this directive, Defendant filed his Amended Response to Plaintiff's First Motion on February 20, 2002, and each party filed additional briefing as well. In addition, at the December 21, 2001 hearing the Court also issued certain discovery directives to Plaintiff related to Defendant's Motion to Compel and Motion for Continuance, and Plaintiff fully complied with those directives and produced additional information responsive to Defendant's discovery requests, some of which was included in Defendant's February 20, 2002 Amended Response.
After carefully considering Plaintiff's Summary Judgment Motion, Defendant's written Response, Defendant's Amended Response, all supplemental briefing, and the arguments of counsel, the Court concluded that the Plaintiff's Summary Judgment Motion had merit and should be granted. Accordingly, by order dated May 16, 2002, the Court:
ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion for Summary Judgment on its Breach of Contract and Declaratory Judgment claims should be and was GRANTED. Specifically, the Court found and concluded that:
-
1. Plaintiff is entitled to judgment on its breach of contract claim;
- The April 27,1987 Employee Patent, Copyright and Proprietary Information Agreement between Evan Brown and DSC Communications Corp. n/k/a Alcatel USA, Inc. (the "Employment Agreement") is a valid and enforceable contract;
- Pursuant to the Employment Agreement, DSC Communications Corp. n/k/a Alcatel USA, Inc. ("Alcatel") owns full legal right, title and interest to the process and/or method developed by Evan Brown for 1) converting machine executable binary code into a high level source code using logic and data abstractions, 2) taking existing executable programs and reverse engineering the intelligence from those programs and re-coding the intelligence into portable high level language, and 3) converting executable Z8000 machine code into C language source (all collectively describing what shall hereinafter be referred to as the "Solution");
- Pursuant to the Employment Agreement, Evan Brown is obligated to fully disclose the Solution to Alcatel;
- Evan Brown cannot disclose, sell, assign or transfer the Solution to anyone other than Alcatel;
- Evan Brown cannot negotiate the disclosure, sale, assignment or transfer of the Solution to anyone other than Alcatel; and
- Evan Brown cannot further develop or market the solution to anyone other than Alcatel.
2. Plaintiff is entitled to judgment on its Declaratory Judgment claim. Specifically, the Court enters the following declarations:
3. Pursuant to Texas Civil Practice and Remedies Code $$37.001 and 38.001 et. seq., Plaintiff is entitled to recover its attorneys fees.
4. Plaintiff's Objections to Defendant's Evidence in Opposition to Plaintiff's First Motion, filed December 21, 2001, are sustained with respect to Exhibits 4 and 5.
5. Plaintiff's Objection to a hearing on Defendant's Motion for Summary Judgment is sustained as a consequence of sanction imposed earlier in this litigation. (See Note 1)
On June 3, 2002, consistent with the instructions set forth by the Court in its May 16, 2002 Order, Plaintiff filed its Motion for Summary Judgment on Defendant's Counterclaims ("Plaintiff's Counterclaim Motion") and Motion for Summary Judgment for its Attorneys' Fees ("Plaintiff's Attorneys' Fees Motion"). These two motions for summary judgment were properly scheduled for hearing before the Court on June 28, 2002.
Shortly before the scheduled June 28, 2002 hearing, Defendant filed a Motion to Recuse. The Court declined to recuse itself, and properly forwarded Defendant's Motion to recuse, as well as Plaintiff's Response, to the presiding judge of the administrative judicial district in accordance with the Texas rules of Civil Procedure, and the presiding judge of the administrative judicial district thereafter assigned that motion to Judge Marvin Marshall for determination. Judge Marshall, after hearing the arguments of counsel and the evidence introduced at that hearing, DENIED Defendant's Motion to Recuse at 12:14 p.m. on June 28, 2002.
Following Judge Marshal's denial of Defendant's Motion to Recuse, the Court conducted a hearing on Plaintiff's Counterclaim Motion and Plaintiff's Attorneys' Fees Motion. The Court finds and concludes that it was authorized to conduct the June 28, 2002 hearing on Plaintiff's two motions for summary judgment given Judge Marshal's prior denial of the Motion to Recuse. The Court further finds and concludes that Proper and sufficient notice of this June 28, 2002 hearing was given to all parties of record. Both parties were present at the hearing and announced ready to proceed on the two Motions.
After considering the Plaintiff's two Motions, Defendant's Response, and the arguments of counsel, the Court is of the opinion that the two Motions have merit and should both be GRANTED. Accordingly, by Memorandum entered on June 28, 2002, the Court:
ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion for Summary Judgment on Defendant's Counterclaims shall be and hereby is GRANTED. Defendant's Counterclaims shall be and hereby are dismissed with prejudice. It is further,
ORDERED, ADJUDGED AND DECREED that Plaintiff's objections to Exhibits 3, 17, 18 and 22 of Defendant's Counterclaims shall be and hereby are sustained as follows:
-
i. Exhibit 3 - Plaintiff's attorney-client privilege and Rule 408 objection are sustained except as to the heading (addressees) and first full paragraph;
ii. Exhibit 17 - Plaintiff's hearsay objection sustained;
iii. Exhibit 18 - Plaintiff's relevance objection is sustained; and
iv. Exhibit 22 - Plaintiff's relevance and hearsay objections are sustained. It is further,
ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion for summary Judgment for its Attorneys' Fees shall be and hereby is GRANTED. Plaintiff Alcatel USA, Inc. f/k/a DSC Communications Corp. is awarded reasonable and necessary attorneys' fees in the amount of $332,000. It is further,
ORDERED, ADJUDGED AND DECREED that Plaintiff Alcatel USA, Inc. f/k/a DSC Communications Corp. shall be entitled to interest on the above award of attorneys' fees in the amount of 10% per annum until such fees are recovered in full. It is further,
ORDERED, ADJUDGED AND DECREED that all court costs are taxed against Defendant Evan Brown. Plaintiff is allowed all writs and processes as may be necessary for the enforcement and collection of the costs of court.
All other relief not expressly granted herein is DENIED.
SIGNED this 26 day of July, 2002.
(signature)
Curt B. Henderson
Judge Presiding
Note 1: The Court observes that the same arguments contained in Defendant's Motion for Summary Judgement were also argued in opposition to Plaintiff's First Motion. As such, the Court's entry of its Order granting Plaintiff's First Motion is effectively a denial of Defendant's Motion.
DSC/Alcatel .vs. Evan Brown, the saga continues
Thought you would be interested in the latest court developments.
Again, the courts violated my rights to due process. I appeared in court last Friday to hear DSC's motions for Summary Judgement. While sitting in the court room, I learned that a judge had been assigned to hear my Motion to Recuse. The book of rules (Texas Rules of Civil Procedure) require notice to be given to the parties before the Motion to Recuse can be heard (TRCP Rule 18a(d)). I was never notified that a judge had been assigned or that a date had been set for the hearing. I informed Judge Marvin Marshall that I had not been notified as required and that I was not prepared to present my Motion to Recuse. Judge Marshall told me that my motion was going to be heard whether I was ready or not.
After the hearing on my Motion to Recuse, Judge Marshall signed an order DENYING my motion and he then notified Judge Henderson that Henderson could hear DSC's motions for Summary Judgement. About an hour after hearing DSC's motions, Judge Henderson issued a MEMORANDUM in which he granted both of DSC's motions for Summary Judgement. DSC's first motion for Summary Judgement attacked all my Counterclaims and DSC's second motion for Summary Judgement was for attorney fees in the amount of $332,000.
Judge Henderson directed counsel to prepare a draft of final judgement that incorporates all necessary rulings and findings of the Court and submit it in electronic form to the court administrator.
Judge Henderson has tried this case by depositions and affidavits where he has personally ruled on the evidence and denied my right to trial by jury.
I've been railroaded!
I don't know how much money DSC has contributed to Judge Henderson's re-election campaign, but I believe they got their moneys worth. I truly believe that justice is for sale in Texas and our Civil Rights aren't worth the paper they are printed on.
I have filed a Motion for New Trial and am working on my appeal.
- Evan Brown
DSC/Alcatel .vs. Evan Brown, the saga continues
Thought you would be interested in the latest court developments.
Again, Judge Henderson has violated my rights to due process. Judge Henderson violated Texas Rules of Civil Procedures (Rule 215.2(b)
- "Sanctions by court in which action is pending."
If a party fails to comply with proper discovery
request or to obey an order to provide or permit
discovery, the court in which the action is pending
may, AFTER NOTICE AND HEARING, make such orders in
regard to the failure as are just.
I have made two (2) disclosures of my "idea" to DSC and the court granted DSC a sanction on my first disclosure because it did not contain enough detail to satisfy DSC. Judge Henderson's order on Jan 19, 2001 granted DSC a 20 percent ownership in my "idea" but mentions nothing of denying my Motion for Summary judgement. DSC hasn't filed any further motions to compel since my disclosure on Sep 27, 2000.
On May 16, 2002, Judge Henderson issued a memorandum which granted DSC a sanction against me without notice or hearing. The specific text is:
- "The Court has also sustained Plaintiff's objection to granting
a hearing on Defendant's Motion for Summary Judgement, as a
consequence of sanctions imposed earlier in this litigation."
My Motion for Summary Judgement was set for today. DSC's attorneys had the court remove my motion yesterday, without notice or hearing.
Below is my "Motion to Recuse" Judge Henderson for violating my Civil Rights and for denying me Due Process.
- Evan Brown
No. 199-00596-97
|
DSC Communications Corporation n/k/a Alcatel Marketing USA, Inc., Plaintiff, V. Evan Brown Defendant. |
| | | | | | | | |
IN THE DISTRICT COURT OF COLLIN COUNTY, TEXAS 219TH JUDICIAL DISTRICT |
DEFENDANT'S MOTION TO RECUSE
Defendant asks the judge of the court to recuse himself.
A. Introduction
- Plaintiff is DSC Communications Corporation n/k/a Alcatel
Marketing USA, Inc.; defendant is Evan Brown.
- Plaintiff sued defendant for Breach of Contract, Promissory Estoppel, Misappropriation of Trade Secrets, Unfair Competition, Breach of Fiduciary Duty or Confidential Relationship and for a Declaratory Judgement
B. Facts
- Defendant files this motion at least ten days before this case
is set for trial.
- On May 16, 2002, Judge Henderson issued a MEMORANDUM (Exhibit 11)
which states in part:
- "The Court has also sustained Plaintiff's objection to granting
a hearing on Defendant's Motion for Summary Judgement, as a
consequence of sanctions imposed earlier in this litigation."
TRCP Rule 166a(b) states:
- "For Defending Party. A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory
judgement is sought may, at any time, move with or without
supporting affidavits for a summary judgement in his favor
as to all or any part thereof."
Defendant filed his first Motion for Summary Judgement on July 3, 1997 and Plaintiff amended their pleadings. On September 29, 1997, Defendant filed his second Motion for Summary Judgement and Plaintiff brought a Motion for Continuance before the court on Oct 7, 1997 which was granted. The continuance delayed the hearing on Defendant's Motion for Summary Judgement until Defendant disclosed his "idea." Defendant disclosed his "idea" under seal to the court on January 22,1999. Plaintiff complained that the disclosure was not detailed enough and the court order Defendant to make another disclosure describing in detail the Defendant's "idea." The court ordered Defendant to disclose his "idea" showing how to convert Zilog Z8000 machine executable code into the K&R C programming language using the BSDI/486 UNIX platform (Exhibits 2,3). Defendant has made a full and complete disclosure of his "idea" in the form of ANSI C programs, Makefile, test data and Z8000 instruction set details (Exhibit 4 on CD-ROM under seal).
The transcripts of the hearing regarding Defendant's Motion for Summary Judgement from December 21, 2001 do not mention sanctions and clearly state the court agreed to hear Defendant's Motion for Summary Judgement (Exhibit 8, pg 37).
Judge Curt Henderson violated Defendant's right to a fair and impartial trial by personally judging facts in dispute and denying Defendant a hearing on his Motion for Summary Judgement.
- Defendant filed his second request for production to Plaintiff
(Exhibit 5) on August 17, 2001 and Plaintiff's response was due by
September 17, 2001. Plaintiff did not respond to Request 1 until
December 20, 2001. Defendant specifically stated in (REQUEST 1) that Plaintiff:
- "Produce computer files representing all the files contained
in the home directory and sub-directories of the Defendant
Evan Brown that existed at the time Defendant's termination.
At the time of his termination, the Defendant had home
directories on the Switching Products Division network, the
Motorola Cellular testbed network and the VAX development
cluster network. Defendant requests that these computer
files be copied to CD-ROM disk in such a way as to preserve
the original time and date of all these computer files."
On December 21, 2001, Judge Curt Henderson heard Defendant's Motion to Compel and for Sanctions. Contained in the transcript of the hearing (Exhibit 8), the witness Kevin Fisher stated under oath that on page 16 lines 14-18 that he had received the request to Defendant's home directory "Probably three to four weeks ago." That would have been no earlier than November 16, 2001, almost two months after the response was due to Defendant. Plaintiff did not produce the files from the VAX system until well after the December 21 hearing. Plaintiff clearly violated TRCP Rule 196.2(a)(Response to Request for Production and Inspection).
Judge Henderson denied Defendant's Motion to Compel and for Sanctions. Judge Henderson has demonstrated his personal interest and bias of the court. Judge Henderson will deprive Defendant of a fair trial in violation of the due process clauses of both the Texas and the United States Constitutions and in violation of Texas Rule of Civil Procedure 18b because the judge's impartiality might reasonably be questioned.
- Judge Henderson requested Plaintiff to produce a Scheduling Order
in this case even though scheduling order are only required for cases filed
after Jan 1, 1999. Defendant objected to having a scheduling order because as
a Pro Se Defendant, the scheduling order is extremely detrimental as Defendant
has no prior legal experience. At the hearing of Plaintiff's Motion for
Scheduling Order, Judge Henderson stated that the scheduling order would be
used as a guide. Defendant was severely damaged when Judge Henderson granted
Plaintiff's April 29, 2002 Motion for Protective Order, denying Defendant
discovery of the following evidence (Exhibit 10):
- Plaintiff's written policies
- DSC's Employee Handbook
- DSC's Business and Ethics Handbook
- Defendant's payroll records
- Defendant's time sheets
- All non-disclosure agreements signed by Defendant
- Defendant's complete personnel file
- DSC's publication "DSC Today" for August 1997
- identify all computer systems and computer networks which
individuals of DSC's Disclosure Team or any other person
acting on DSC's behalf, used to load, copy, read, modify,
compile, test, evaluate or alter in any way, Defendant's
court order disclosures.
- Identify all trade secrets provided to Defendant while
employed at DSC.
- Identify all persons responsible for backing up the
computers used by members of DSC's Disclosure Team members
or any other person having access to Defendant's disclosure
material.
- Identify all persons having administrative privilege or
"root" access to the computers or networks.
- Identify the procedures that members of DSC's Disclosure Team used to secure the Defendant's disclosures.
"TRCP 190.5 Modification of Discovery Control Plan" states that the court MUST modify the discovery control plan when the interest of justice requires.
- Judge Henderson violated Defendant's rights to due process.
- Plaintiff's written policies
- On Mar 18, 2002, Defendant filed his Counterclaims. On April 8,
Defendant filed his discovery requests (Exhibit 9). On April 18, Plaintiff
filed their Motion for Protective Order. On April 29, 2002, parties appeared
at hearing (Exhibit 10, transcript of hearings) where DSC's Motion for
Protective Order was granted despite the fact that "TRCP 190.5 Modification
of Discovery Control Plan" states that the court MUST modify the discovery
control plan when the interest of justice requires. "The court must allow
additional discovery: (a) related to new, amended or supplemental pleadings,
or in an amended or supplemental response, if: (1) the pleadings or responses
were made after the deadline for completion of discovery or so nearly before
that deadline that an adverse party does not have an adequate opportunity to
conduct discovery related to the new matters, and (2) the adverse party
would be unfairly prejudiced without such additional discovery;"
- Judge Henderson violated Defendant's rights to due process.
- On June 30, 1997, Judge Henderson issued a Temporary Injunction
Order which violated Status Quo (Exhibit 1). The Defendant had an "idea" that
only existed in his mind and Judge Henderson violated Status Quo by ordering
Defendant to disclose his "idea" to Plaintiff.
- On June 30, 1997, Judge Henderson's Temporary Injunction again
violated Status Quo when he granted Plaintiff rights to patent Defendant's
"idea" before ownership of the "idea" was determined at trial. Judge Henderson
denied Defendant his right keep his "idea" a secret until ownership is
determined at trial.
- Judge Henderson's Temporary Injunction violated Defendant's
right to due process by granting Plaintiff ownership rights in Defendant's
"idea" before ownership is determined at trial.
- Judge Henderson's Temporary Injunction violated Defendant's
Civil Rights when he issued the Temporary Injunction ordering Defendant to
be at Plaintiff's place of business from 9am to 5pm every business day. The
United States Bill of Rights (13th Amendment) abolished servitude except in
the case imprisonment for punishment for a crime.
- On June 19, 2002, Defendant received a FAX from Plaintiff's
counsel (Exhibit 12) where it appears Plaintiff's counsel requested Ms Brenda
Shepperd, Court Coordinator for the 219th District Court, remove Defendant's
Motion for Summary Judgement set for hearing on June 21, 2002. The FAX
communicates that Ms Shepperd has removed Defendant's MSJ from the docket.
Counsel for Plaintiff is working with Judge Henderson's staff to deny Defendant due process.
- Defendant attaches affidavits to this motion to establish facts not apparent from the record and incorporates them by reference.
-
The due process clauses of both the Texas and the United States
Constitutions guarantees a party an impartial and disinterested tribunal in
civil cases. Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610,
1613 (1980); Metzger v. Sebek, 892 S.W.2d 20, 37 (Tex. App. Houston [1st Dist.]
1994, writ denied).
- In this case, the personal interest and bias of the judge of the court will deprive Defendant of a fair trial in violation of the due process clauses of both the Texas and the United States Constitutions and in violation of Texas Rule of Civil Procedure 18b because the judge's impartiality might reasonably be questioned. Tex. R. Civ. P. 18b(2)(a); Dunn v. County of Dallas, 794 S.W.2d 560, 562 (Tex. App. Dallas 1990, no writ). In this case, it is reasonable to question the impartiality of Judge Curt Henderson because Judge Henderson has ruled on issues of fact on a trial by jury case, denied Defendant due process by granting Plaintiff ownership rights in "idea" before trial, failed to preserve Status Quo of Defendant's "idea", ordered Defendant to be at Plaintiff's place of business from 9am to 5pm every business day, refused to abide by "TRCP 190.5 Modification of Discovery Control Plan".
- A copy of this motion is served on the other parties on the same day this motion is filed. Defendant expects this motion to be presented to Judge Curt Henderson three days after it is filed, unless the Administrative Judge for the judicial district orders otherwise. Tex. R. Civ. P. 18a(b).
- Judge Curt Henderson has demonstrated prejudice against Defendant and must be removed from this case. Judge Henderson's orders must be ruled void and a new trial ordered, otherwise the court will deprive Defendant of a fair trial in violation of the due process clauses of both the Texas and the United States Constitutions and in violation of Texas Rule of Civil Procedure 18b.
- For these reasons, Defendant asks the judge of the court to recuse himself and request that the presiding judge of this administrative judicial district assign another judge to this case or refer this motion to the presiding judge of this administrative district for a hearing on this motion.
C. Argument & Authorities
D. Notice to Other Parties
E. Conclusion
F. Prayer
-
Respectfully submitted,
By:_______________________________
Evan Brown
PO Box 31
Cranfills Gap, Texas 76637
Tel. (254) 796-2416
EXHIBITS
- June 30, 1997 Judge Henderson's Temporary Injunction Order
- Jan 19, 2000 Judge Henderson's ORDER specifying sanctions
- July 11, 2000 Agreed Order (reset date for Defendant's disclosure)
- Sept 25, 2000 Defendant's disclosure (on CD-ROM under seal)
- Aug 17, 2001 Defendant's 2nd Request for Production
- Mar 12, 2001 Transcript of "Defendant's Hearing on Motion for Compensation"
- Mar 18, 2001 Plaintiff's Second Amended Original Petition and Application for Injunctive Relief
- Dec 21, 2001 Transcript of hearings (MSJ, Motion to Compel)
- Apr 8, 2002 Defendant's 3rd Request for Production, 2nd Request for Interrogatories
- Apr 29, 2002 Transcript of hearings (Special Exceptions, Protective Order)
- May 16, 2002 Judge Henderson's MEMORANDUM
- June 19, 2002 FAX from Plaintiff's counsel (removal of Defendant's MSJ)
DSC/Alcatel .vs. Evan Brown, the saga continues
I received a FAX from Judge Henderson's court last Thursday (see attached).
It's a sad day in Texas history. Judge Henderson has issued a ruling which in effect makes all employees servants of their employers 24 hours a day, 7 days a week. Now all your thoughts and ideas now belong to your employer. The thoughts and ideas you had before you took this job, now belong to your employer.
Even though I have been working on my "idea" since 1976, thats 11 years before I even went to work for DSC, Judge Henderson has ruled that my "idea" now belongs to DSC and has given them full legal title and ownership. This, dispute the fact that DSC never paid me a single penny to work on my "idea".
It's my opinion that someone for or on behalf of DSC (Alcatel) is influencing Judge Henderson and his decisions.
With respect to these orders and DSC's Motion for Summary Judgement, there are several material disputes with the fact issues in DSC's Motion for Summary Judgement which have been raised before the court. Judge Henderson apparently has chosen to ignore the rule of law where a jury makes decisions on facts in dispute, Judge Henderson has ignored the facts in dispute and issue a judgement in favor of DSC.
Facts in dispute:
- Is the "Agreement" is a unilateral or bilateral contract?
- Is the "Agreement" supported with valid consideration?
- Is a mere "idea" an invention, made or conceived?
- Is the "idea" along DSC's line of business?
- Is the "idea" along DSC's line of work?
- Is the "idea" along DSC's line of investigation?
- Is the "Agreement" even a valid contract?
- If I came up with my "idea" on my own time, does the "Agreement" even apply?
Judge Henderson has declared DSC's "Agreement" to be a valid contract which affects every person that has signed the "Agreement" form that I signed. Judge Henderson has ignored the legal rights of everyone else that has ever signed this Agreement this form.
Judge Henderson's orders have also extended the time for dispositive motions (motions to dispose of this lawsuit) to June 28th. I guess Judge Henderson is hoping DSC will give him something so he can get rid of this lawsuit altogether.
The term "railroaded" comes to mind. It's my opinion that will be no equal justice in Judge Henderson's court room over this case.
I'm working on a "Motion for New Trial" and my appeal. I only have 30 days from the date when Judge Henderson issues a final judgement in this case to file my appeal. My guess is that Judge Henderson's final judgement will include at lease 30 days of jail time for contempt or whatever DSC can come up with, to try to prevent me from filing my appeal.
I did file counter-claims against DSC for conversion (theft), abuse of process and for civil rights violations (US Constitution 13th and 14th amendments).
Looks like this is going to drag on for at least several more years.
- Evan Brown
In the 219th Judicial District Court
of the State of Texas
Curt B. Henderson, Judge Presiding
No. 199-00596-97
DSC Communications Corporation. n/k/a Alcatel USA, Inc.
vs.
Evan Brown
MEMORANDUM
On October 10, 2001, Plaintiff filed their Motion for Summary Judgment On Its Breach Of Contract And Declaratory Judgment Claims. The Motion was argued on December 21, 2001. In the interest of justice, the Court withheld ruling on the motion and granted Defendant additional time to file additional responses to the summary judgment motion. The Court also issued certain discovery directives to Plaintiff related to Defendant's Motion to Compel and Motion for Continuance and Plaintiff has complied.
The Court has also sustained Plaintiff's objection to granting a hearing on Defendant's Motion for Summary Judgment, as a consequence of sanctions imposed earlier in this litigation.
Defendant filed his amended response on February 20, 2002. Each party has also filed additional replies and responses for the Court's consideration.
Plaintiff's Objections to Defendant's Evidence in Opposition to DSC's Motion for Summary Judgment, filed December 21, 2001, are sustained and Exhibits 4 and 5 are struck from the record.
Plaintiff's Motion for Summary Judgment is granted as follows:
- Plaintiff is entitled to summary judgment on its breach of contract claim, and
- Plaintiff is entitled to a Declaratory Judgment as follows:
- The Employment Agreement is a valid and enforceable contract,
- Pursuant to the Employment Agreement, Plaintiff owns full legal right, title and interest to the Solution.
- Brown is obligated by the Employment Agreement to fully disclose the Solution to Plaintiff,
- Brown cannot disclose, sell, assign, or transfer the Solution to anyone other than Plaintiff,
- Brown cannot negotiate the disclosure, sale, assignment, or transfer of the Solution to anyone other than the Plaintiff, and
- Brown cannot further develop or market the Solution to anyone other than the Plaintiff.
- Plaintiff is entitled to attorney fees.
The Court extends the deadline for the filing and presentation of further dispositive motions to June 28, 2002, and the Court will designate and set aside some time for hearings on June 28,2002. No other extensions to the October 10, 2001 Scheduling Order are affected by this extension.
Signed on Thursday, May 16, 2002.
(signature)
Curt B. Henderson
Judge Presiding
DSC/Alcatel .vs. Evan Brown, the saga continues
Yesterday was the last day (according to the scheduling order) to amend pleadings so DSC filed their "Second Amended Original Petition" (their lawsuit against me) and I filed my "Defendants Original Counterclaims" (my lawsuit against DSC).
I'm suing DSC for "Conversion" (theft) of my disclosure of my idea, "Malicious Prosecution", "Abuse of Process" and requesting a "Declaratory Judgement". My counterclaim does contains provisions for monitory damages.
DSC has scheduled me for my second deposition this Friday at their attorneys office in Dallas.
The lawsuit is scheduled for trial this summer starting on August 5.
- Evan Brown
DSC/Alcatel .vs. Evan Brown, the saga continues
DSC filed a Motion for Summary Judgement last year and it appears that I was able to (through DSC's reply to my response) clearly raise a fact issue in dispute with regards to DSC's Motion for Summary Judgement.
Looks like we are proceeding to trial this August.
The IEEE magazine has an article on intellectual property this month which mentions this lawsuit.
- Evan Brown
PS. The picture in the article is NOT by head. I still have a little hair left. :-)
Thursday, November 8, 2001 - First message this day
DSC/Alcatel .vs. Evan Brown, the saga continues
We have a level 3 scheduling order in place that sets the trial for August 5, 2002.
DSC filed their "Plaintiff's Motion for Summary Judgement on its Breach of Contract and Declaratory Judgement Claims" on October 10th.
I filed my response to DSC's motion for summary judgement and filed these motions:
- Motion to Reset Date for Summary Judgement DSC failed to provide proper notice of hearing.
- Motion for Continuance DSC refused to provide requested documents
- Motion to Compel and for Sanctions DSC is withholding key evidence
The hearing for all these motions is set for tomorrow (Friday, Nov 9).
I hope to have all these documents on
I am still looking for legal representation if you know someone that
can help.
- Evan Brown
Thursday, November 8, 2001 - Second message this day
DSC has offered to delay the hearings for several weeks and to
provide me with the documents and computer files I had requested.
I had filed a motion to reset and a motion for continuance so
this agreed request was also in my interest.
So, the hearings for tomorrow morning are being re-scheduled.
- Evan Brown
Wednesday, July 18, 2001
The law firm (Sayles & Lidji) representing me for the past 4 years has resigned from the case.
Now I'm busy looking for legal representation.
If you know of a very good legal team that would like to represent me and take on the DSC/Alcatel legal team, I sure would like to talk with them. I would really hate to loose this lawsuit and have Alcatel own parts of my brain.
- Evan Brown
We're in the news again.
Otherwise, Judge Henderson is tied up in a capitol murder case and we don't have anything scheduled before the court.
We had a hearing back on March 12th for our Motion for Compensation so I could be compensated for the 3 months I spent disclosing my "idea." Judge Henderson took the arguments presented under advisement and said that these issues should be raised at trial. DSC/Alcatel said something to the effect that I shouldn't be paid and that any payment would be a windfall to me.
I requested a transcript of the hearing from the court reporter but she hasn't gotten around to my transcripts yet. I want to share DSC/Alcatel's statements made to the court with you as well as get the statements exactly as stated to Judge Henderson. I'll send out another update as soon as the transcripts arrive and I'll also update the front page story on my web site www.unixguru.com.
- Evan Brown
The following article is from the June 2001 addition of D Magazine.
The article can be read online at http://www.dmagazine.com/june01/street0601.shtml
Tech giant Alcatel's legal crusade to safeguard intellectual property have made it the bully of the Telecom Corridor.
The "eureka!" moment that would change Evan Brown's life hit during a weekend drive in his Mercedes. He had finally solved a problem he had been contemplating for 20 years, a coding scheme to easily convert software run on old mainframes to more modern languages. If it worked, the idea was worth at least a billion dollars.
That was on a sunny day in April 1996, when Brown was a computer programmer earning $96,000 a year. Today he lives in a steel barn in an unincorporated nook of central Texas-unemployed, bankrupt, and, he says, beaten down. He had to sell his Plano micromansion and the Mercedes, along with his prized Cessna airplane and his gun and stamp collections, to fight an ongoing legal battle against France-based Alcatel USA. The telecom giant insists that Brown's idea, which court documents call "The Solution," belongs to the company. And to prove it, Alcatel is moving forward with a lawsuit, even though the defendant has no material assets left to sue for.
"They've shackled me in the employment arena and removed me from the intellectual side of society," says Brown, who now spends his days chopping cedar, milking cows, and writing e-mail. "Plenty of [tech firms] want to talk to me, but not until my lawsuit with [Alcatel] is over."
Brown is hardly Alcatel's only defendant. The company has filed more than a dozen lawsuits-against everyone from individual engineers and startups to Cisco-all alleging stolen trade secrets and patent infringements. With Alcatel generating more headlines from courtrooms than from clean rooms, no wonder the Wall Street Journal labeled it "the most litigious company in" Telecom Corridor." In a series of cases set to go to trial in state and federal courts this year and next, Alcatel stands to win billions in damages.
"We're not after windfall," says George Brunt, Alcatel's senior vice president and general counsel. "We're just trying to protect our intellectual property."
Still, intellectual property is a high-stakes legal frontier, and Alcatel's critics charge that the company is using strong-arm legal tactics to stymie competition, shore up its bottom line, and intimidate employees who might contemplate jumping ship to build a better mousetrap. Brunt disagrees, pointing out that Alcatel sues less than one percent of employees who leave.
"We don't bring cases unless there's a clear theft," he says. Though Alcatel's legal team has lost a few preliminary hearings, it has yet to lose at trial under Brunt's aegis and usually ends up with a large settlement before a case even gets that far.
But little is clear in Evan Brown's case. What he allegedly stole from his former employer was an intangible thought. He never wrote anything on paper, and court-approved searches of his house and hard drives turned up no scraps suggesting this brainchild was ever born. Yet Alcatel is demanding custody.
In Europe, Alcatel's orange triangle is as ubiquitous as a little bell in a circle here. Its business has become telecom infrastructure almost exclusively-building, running, and maintaining networks that transport chunks of information through the Internet, phone lines, digital subscriber lines, fiber optics, and satellite beams. In 1996, Alcatel launched a concerted effort to expand its presence in the United States. Now, after $17 billion worth of acquisitions, U.S. sales have increased from $500 million five years ago to $6.6 billion, and Alcatel's information pathways are spreading across America like St. Augustine in a cul de sac.
Alcatel is snapping together the latest additions to its U.S. headquarters along Plano Parkway, where super-sized slabs of concrete dangle from multiple cranes. On the surface, security is tight at the compound, but not much more so than any other corporation with cameras in its parking lots and door locks that read employees' plastic ID badges.
Of course, Alcatel's concern isn't really pilfered fiber and chipboards. The highest-dollar treasures are the plans for upcoming innovations. And that's why its employees must sign a contract acknowledging that all inventions developed in the course of their duties belong to the company.
When Plano-based Chiaro Networks opened for business in November 2000, they were hit with an Alcatel suit that same day. Nearly a third of Chiaro's start-up staff came from Alcatel, including a senior vice president and the chief technology officer. Alcatel sought a federal court injunction to halt operations at Chiaro, which was developing a new optical router, and to prevent them from hiring any other Alcatel employees. But the judge denied Alcatel's request, in part because Alcatel couldn't define what Chiaro's executives allegedly stole.
Alcatel filed a similar suit against Monterey Networks in August 1999, just days after telecom giant Cisco, one of Alcatel's chief competitors, announced plans to buy Monterey for $500 million. Monterey, like Chiaro, was trying to develop an optical router, which most tech firms believe is the future of high-speed data transfer, and several top brass were Alcatel alums. In fact, Brunt would argue that these companies have stolen Alcatel's entire optical routing team, and for that reason have cheated Alcatel out of potentially billions of dollars. "In many of these cases, [companies] have stolen whole teams from us. So even if we get a huge verdict, we're getting back only some of what was stolen," says Brunt, explaining that a half-billion-dollar ruling is a small, one-time token of what Alcatel would have been able to generate had the competitor not vaporized Alcatel's potential for an ongoing revenue stream from a certain product.
While Alcatel's lawsuits draw on elements of copyright, contract, and patent law, the primary issue the courts must decide is "inevitable disclosure," the notion that certain employees, if they go to work for a potential competitor in a similar department, will inevitably reveal trade secrets. Several legal experts expect this issue-weighing the rights of a company to protect its intellectual property against the rights of an employee to move freely from job to job in a right-to-work state-to ultimately be settled in the Texas Supreme Court.
After the federal motion against Chiaro failed, Brunt pushed for a second suit in January, this time in state court. The one-two punch was hardly surprising for those who say Alcatel hits new enterprises with costly litigation as soon as they pop up. But what made the state court lawsuit different from other intellectual property cases was a new batch of defendants: venture capitalists.
Alcatel is claiming that Dallas-based Centerpoint Ventures not only financed a dirty deal, but also encouraged Alcatel employees to commit fraud. "We consider [the suit] frivolous," says Bob Paluck, Centerpoint's managing general partner. "Alcatel's focus is on litigation, not innovation. They'll sue anybody. We don't have this problem with anyone else."
Alcatel, which got its start peddling electricity more than 100 years ago, hasn't always been so litigious. It was only after setting up homestead on the Silicon Prairie that the French company began slinging its legal guns.
Evan Brown wasn't even working for Alcatel when he came up with The Solution. His employer was Plano-based DSC Communications. He asked DSC to release him from a contract so he could start his own venture. DSC refused and instead offered him up to $2 million of any money he saved DSC customers, along with 50 percent of the profits from third-party sales. Brown countered with a $5 million, 50-percent offer. He believed he and DSC were nearing a deal when he took off to Paris for a week of vacation in April 1997. When he returned, he was fired and served with a lawsuit claiming DSC owned his idea.
DSC reminded Brown of a contract that he signed in 1987, promising to disclose any inventions related to his job as a software designer. Brown contended that he had begun work (in his head) on this 11 years before even joining DSC; that his job had nothing to do with software reverse engineering, which was the foundation of his idea; and that he never used DSC equipment or time to develop it. Furthermore, it was just an idea, not an invention.
But DSC's position was that he worked in the software-tools group, and this was a software tool. And they believed that while in France, he was breaching his employment contract by trying to sell the idea to a competitor: Paris-based Alcatel.
Brown vehemently denies the charge. But DSC claims otherwise because they had been engaged in buyout talks with Alcatel, which announced its plans to absorb DSC just weeks after Brown's return to the United States.
DSC's general counsel at the time was none other than George Brunt, who would assume the same position at Alcatel after the acquisition was finalized in April 1998. At DSC Brunt developed his reputation for being hawkish about intellectual property and for turning a corporate legal department into a company profit center. Conservative estimates say Brunt generated at least $2 billion during his DSC tenure. Total settlements in 1997, for example, were at least $161.5 million-enough to bring the company back into the black after a loss in 1996. He won't reveal the numbers since joining Alcatel, and most of the trade-secret settlements have been sealed. But they are huge. Alcatel dropped a $1.2 billion intellectual property suit against Samsung last year, for example, for a settlement that was likely nine figures.
Evan Brown did eventually reveal his idea, but only after the court refused to let the case proceed without the disclosure. "I was in a Catch-22," he says. "If I didn't do it, I'd get a default judgment against me and I would lose the ability to make a living off the only thing I had left: my idea."
So from June to September of last year, Brown drove 160 miles each workday to Alcatel's headquarters, where he churned out 400 pages of computer code without pay. Alcatel representatives, however, said they couldn't get the program to work, and Brown must be holding something back. Brown insists he gave up everything and has proved that his idea works. But for now the judge has sided with Alcatel, awarding the telecom firm 20 percent ownership of The Solution as a default judgment in December.
Both sides believe a settlement is unlikely, so the case will probably go to trial by the end of this year. If that happens, a jury will decide not only if Alcatel is entitled to any future revenues The Solution may generate, but also if a person's synapse firings constitute an employer's intellectual property. Brown says the notion is absurd: "They want to claim part of my brain!"
Whether or not that is true, or at least an acceptable business practice, will be left to the courts to decide. So far they have sided with Alcatel. "We're not going to let society erode," says Brunt. "We have to make sure some people respect intellectual property [or] we're going to see the total breakdown of our economy."
Dan Michalski is a frequent contributor to D.
I have disclosed my "idea" to the court so now DSC has my "idea."
I worked at DSC facilities (PB-6 building, Plano, TX) from June 26th until Sept 6th. DSC provided a small conference room with computer equipment and a security guard (to watch over my shoulder as I worked and keep track of potty breaks etc.). Since Sep 6th, I've worked on the disclosure from here at the farm.
DSC is very creative. Back on Aug 23rd, DSC brought in a new security guard (Christina) to click her pen, shuffle her jacket and rattle papers while I tried to concentrate. Christina was also very sick with a cold/flu. I asked her to stay outside the room but Kay Gregory (secretary for Chris Cole, assistant general council for DSC) ordered Christina to stay in the room with me.
Guess what? I caught the cold and have been sick ever since. I went to the medical clinic in Hamilton about 10 days ago because I was only getting worse. I learned that I had developed a form of pneumonia and the medication was $8.44 per pill. I'm doing better but at least I finished my disclosure.
I thought a lot about how to "fully and completely" disclose my "idea" such that my disclosure would satisfy the court. I'm a technical computer programmer, not a writer. It occurred to me that if I gave them a working computer program that implemented my "idea", that would certainly constitute a full and complete disclosure. A working computer program would show that, not only was all the logic there, but it would also show that my "idea" does work.
My "idea" does work in principle.
- Evan Brown
PS. This article in the Bloomberg News just came out today
---------------------------------------------------------------
Evan, here's the wire version of the story. The magazine version should be out in a week or so, and I will mail you a copy when I get it. Please keep me posted on events as they unfold. I may check back with you from time to time. Thanks again,
Loren
Farm-to-Market Road 219, outside Fairy, Texas, Sept. 27 (Bloomberg) -- For 14 weeks starting in June, Evan Brown climbed into his dust-covered Ford pickup and drove 160 miles from central Texas to Alcatel SA's U.S. headquarters near Dallas, compelled by a state judge's order to divulge one of his few remaining assets: his thoughts. DSC Communications Corp., now owned by Paris-based Alcatel, fired Brown in 1997 after he refused to divulge his idea for software that would modernize DSC's telephone switches, which route calls over the world's phone networks. Then DSC sued Brown, charging that he'd breached a contract that required him to turn over inventions to the company.
Out of a job and out of money, Brown, 48, has had little choice but to shed the trappings of his former success. He sold his Cessna 210 single-engine plane and used the cash to build a metal barn on 300 hardscrabble acres northwest of Waco, where he weathered months of 100-degree days before installing air- conditioning. He brings in about $2,000 a year by leasing his land to farmers -- in stark contrast to his $100,000 annual salary at DSC. Long gone are his single-story brick home on a tree-lined cul-de-sac in the Dallas suburb of Plano, his Mercedes 300 SD sedan, and his prized gun collection: rifles, shotguns, and pistols he'd acquired since college.
--Loren Steffy in Dallas (214) 740-0870 or at steffy@Bloomberg.net with reporting by Daniel Tilles in Paris through the Princeton newsroom (609) 279-4000/gcr.
Story illustration: To compare the performance of Alcatel's American depositary receipts with the Standard & Poor's 500 Index, see {ALA US
Life is good out here on the farm but, ...
The January 19th ORDER issued by Judge Henderson expired back on April 28th while the DSC .vs. Evan Brown lawsuit was out of his jurisdiction (Federal Court systems had temporary jurisdiction due to my bankruptcy filing and
related motions).
The DSC .vs. Evan Brown lawsuit now is back in Judge Henderson's court and I'm headed to Plano to further document my "idea."
As per a temporary agreement between all parties, I'll be in Plano at DSC/Alcatel's PB-6 facility beginning June 26th at 9am. DSC/Alcatel wants to wait until after I appear in Plano before going to Judge Henderson to have the January 19th ORDER modified as the parties have agreed.
The January 19th ORDER also required DSC/Alcatel to provide specific hardware and software so I could complete my
disclosure.
I was notified that as of last Wednesday (6/21) DSC/Alcatel had finally acquired and setup the equipment I need to complete the disclosure.
- Evan Brown
Judge Henderson issued an ORDER yesterday on my 48th birthday. :-(
I have read the order several times and don't understand fully
all what Judge Henderson has ordered.
Over the past 33 months, I have sold everything but the farm where I live. I delayed filing bankruptcy as long as possible in hopes that this lawsuit would be settled but my money didn't hold out. I'm financially broke but this lawsuit continues.
I have been working with Bankruptcy attorneys in Waco for the past 6 months and I signed the legal documents last Monday. The Chapter 13 bankruptcy was scheduled to have been filed last Wednesday but when I checked a few moments ago, they had not been filed. The law office said that they would file my bankruptcy case tomorrow (Friday).
Judge Henderson has now ORDER'ed me to work at DSC's PB-6 building in Plano without compensation for time, travel or expenses until I have more throughly documented my "idea." I live in Hamilton County which is about a 3 hour drive and over 130 miles one way from Plano.
I have also been ORDER'ed to use DSC's product hardware (Zilog Z8000) as the "machine executable binary code" instead of the Intel 8080 that I choose to use.
- Evan Brown
In the 219th Judicial District Court
=====================================================================
On June 10, 1999, the Court heard Plaintiff DSC's Second Motion to Compel Interrogatory Responses and For Sanctions (the "Motion"). The parties appeared through their attorneys of record and announced ready to proceed on the Motion. In the Second Motion, DSC demonstrated that the Court ordered that Defendant fully and completely disclose the Solution in its June 30, 1997 Temporary Injunction Order. In connection with entering the Temporary Injunction Order, the Court entered orders (1) requiring strict confidentiality of the Solution once it had been disclosed; and (2) requiring DSC to compensate Defendant for the time he spent making the disclosure. Defendant willfully refused to comply with the terms of the Temporary Injunction Order.
In this Second Motion now before the Court, DSC further demonstrated that DSC served interrogatory requests seeking for Defendant to fully and completely disclose the Solution. Defendant refused to provide any substantive response to that Interrogatory, forcing DSC to file its First Motion to Compel and for Sanctions (the "First Motion"). After a hearing concerning DSC's First Motion, the Court granted that Motion and ordered (for the second time) that Defendant Brown fully and completely disclose the Solution to DSC. In connection with granting that First Motion, the Court entered orders (1) requiring strict confidentiality of the Solution once it had been disclosed; (2) allowing Defendant to apply to the Court for compensation in connection with the time spent making the disclosure; and (3) warning Defendant that any failure to fully and completely disclose the Solution might result in sanctions, including the striking of Defendant's pleadings and the entry of default judgment against Defendant. Again, Brown willfully refused to fully and completely disclose the Solution to DSC as required by the Court's Order. Now, two and one-half (21/2) years later, there has been no disclosure of the Solution. At each stage of these proceedings, the Court has entertained new justifications why compliance has not been forthcoming. In good faith, the Court will again afford Defendant all benefit of the doubt and accommodate his latest explanation in hopes that Defendant will finally acquit himself of his failure to obey the directive of the Court. Such accommodation, however, comes with a price.
Based on the facts of this case, the Court concludes it has on two
prior occasions ordered Defendant to provide to DSC a full and complete
disclosure of the Solution. These two orders, one of which have been in
place since June 30, 1997, provided Defendant with ample opportunity to
fully and completely disclose the Solution to DSC. Defendant's failure
to fully and completely disclose the Solution in compliance with these
orders is in willful violation of the Court's orders and constitutes bad
faith and an abuse of the discovery process. Moreover, in connection
with the Court's Order on DSC's First Motion, the Court sanctioned
Defendant and advised Defendant that any further violation of the
court's Order would result in additional sanctions, including the
dismissal of his pleadings and the entry of a default judgement against
him. Notwithstanding this order, Defendant failed and refused to fully
and completely disclose the Solution. Defendant's conduct demonstrates a
willful and continuing refusal to comply with the Court's orders and the
discovery process in general.
Following oral argument on the Motion, the Court advised the
parties that it intended to enter an order granting the Motion in part.
The Court finds that the Defendant has failed to disclose the Solution.
The Court engaged counsel in discussion and argument in an effort to
give Defendant another opportunity to disclose the Solution. 's excuses
and requiring Defendant to disclose the Solution in greater detail than
he had previously disclosed the Solution. Accordingly, the Court
solicited supplemental briefing and comments from the parties concerning
the specific manner in which Defendant should be required to disclose
the Solution.
On July 12, 1999, the parties submitted to the Court letter briefs
outlining the manner in which Defendant should be required to disclose
the Solution. The Court evaluated those letter briefs and thereafter
heard further argument concerning the manner in which Defendant would be
required to further disclose the Solution. Following that second oral
argument, the Court solicited supplemental briefing from the parties
concerning the differences between the two manners for disclose proposed
by the parties. On September 14, 1999, the parties submitted a second
letter brief outlining the differences between the proposed manners for
disclosure of the Solution.
Based on the foregoing arguments and filings with the Court, as
well as the Court's general familiarity with the case, the Court is
thoroughly familiar with the parties' positions concerning Defendant's
required disclosure of the Solution. On October 14, 1999, the Court
entered a Memorandum providing that Plaintiff had the option of
selecting one of two methods by which Defendant would be required to
disclose the Solution. Plaintiff advised the Court and Defendant's
counsel that it had selected the second option for the disclosure
required by Defendant. The Court's file shall reflect the relevant
follow-up correspondence between the Court and parties and the Court's
efforts to structure a final resolution to this issue.
Based on these facts, as well as consideration of the pleadings on
file in this case, the arguments of counsel at the June 10, 1999
hearing, the follow-up discussion with counsel, and the Court's long-
standing and detailed familiarity with the factual and procedural
background of this case, the Court is of the opinion that the DSC's
Second Motion should be GRANTED, and that the Court must impose some
sanctions, as well as structure another opportunity for Defendant to
comply with the disclosure.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Plaintiff DSC's
Motion shall be and is hereby GRANTED as follows:
Signed on Wednesday, January 19, 2000.
Nothing new in my lawsuit. We are still waiting for Judge Henderson to rule on DSC's June 10th hearing. (Second Motion to Compel and for Sanctions)
I thought you would like to know that DSC/Alcatel v. Samsung settled their lawsuit out of court.
DALLAS, January 12, 2000 - Alcatel USA, Inc. (NYSE: ALA), plaintiff, and Samsung Electronics Co., Ltd., defendant, jointly announced today that they have decided to dismiss the trade secret litigation now pending in the 193rd District Court in Dallas County, Texas. Both companies decided that it is in their mutual best interest to do so, and that this sets the stage for future cooperation.
In addition, there has been a mutual dismissal of claims between Alcatel and the former DSC employees, Jim Bunch, Mike Bray, Kevin Gallagher, Bhushan Gupta, Nancy Korman, Jim Olivier, Leo Putchinski, and Martin Wu.
Nothing new in my lawsuit. We are still waiting for Judge Henderson to rule on DSC's June 10th hearing. (Second Motion to Compel and for Sanctions)
I thought you would also be interested the DSC .vs. Samsung lawsuit which is now in the Dallas County State District Court, Judge Evans presiding. Opening arguments are scheduled to begin Monday, Nov 29th.
My interest in this lawsuit is that it is probably a good indicator of what I can expect when my lawsuit goes to trial.
The following article was in the Nov 16th Dallas Morning News business section.
A state judge in Dallas on Monday barred spectators from portions of a high-stakes telecommunications trial unless they promise not to disclose some information discussed in the courtroom.
The order, signed Monday by state District Judge David Evans, is intended to protect trade secrets at the heart of the 3-year-old lawsuit between Alcatel USA Inc. and Samsung Electronics Co. Media experts said it could limit the ability of news organizations to cover the case. The Dallas Morning News said the newspaper plans to seek appellate review.
"The theory of the law is you don't stop speech; you punish if it's misused," said Terence M. Murphy, a partner with Jones, Day, Reavis & Pogue in Dallas, who is representing The News. "This is in a sense a gag order," Mr. Murphy said. "If you sign the agreement, you are effectively gagged. If you don't sign the order, you can't go to court and these things are kept confidential and you are again gagged."
The lawsuit was filed in 1996, after Samsung hired nine engineers from DSC Communications Inc., a Plano-based company that Alcatel bought.
DSC alleged that Samsung had hired the employees to steal some of its digital switching technology, which operates telecommunications networks. Alcatel took over the case after buying DSC. The Paris-based company, with U.S. headquarters in Plano, is seeking $425 million in actual damages, plus punitive damages.
Alcatel and an attorney for the company declined to comment.
Technology companies hire away each other's employees all the time, and it's fairly common for companies to sue.
Such lawsuits have increased as North Texas' technology job market tightens, said Ron Robinson, president of Richardson's Technology Business Council. "We never heard anything like this prior to three or four years ago.
"It is a doubled-edged sword that we think is unfortunate in the marketplace. You can sue today and be sued tomorrow."
This case is unusual because the former DSC workers never signed noncompete contracts, said R. Laurence Macon, who is representing Samsung, based in Seoul, South Korea. The company's main U.S. office is in Richardson.
"This lawsuit is totally contrary to the climate of mobility that exists in these high-tech companies," said Mr. Macon, a partner with the San Antonio office of Akin, Gump, Strauss, Hauer & Feld.
DSC had a history of fighting hard to protect its trade secrets, Mr. Robinson said.
The company won some previous Texas lawsuits that hinged on the concept of "inevitable disclosure," he said. "Inevitable disclosure says if you leave and go to another company, there's just no way you can't take the knowledge you gained ... and give your new company some advantage," Mr. Robinson said.
In fact, Alcatel made the motion to seal the record in the case, which in turn spawned the gag order, Mr. Murphy said.
The confidentiality order is intended "to prevent the unauthorized use or disclosure of the alleged trade secrets and proprietary information," according to the agreement that spectators would be asked to sign.
It won't affect the entire trial, but spectators couldn't stay in the courtroom during discussions of exhibits that have been sealed without promising not to reveal them.
Lawyers and witnesses can't let the jury know about the confidentiality order or make "any statement that would indicate that courtroom access is being limited or that any exhibit or testimony is or is not maintained under seal," according to the order.
"There is precedent for having spectators sign such agreements," said Charles L. Babcock, a lawyer for the Jackson Walker law firm in Dallas. "Having members of the media sign such an agreement is a very serious matter," said Mr. Babcock, who added he does not know of such a precedent.
Such an order could essentially require reporters "to attend a trial on the condition that they not report on it," Mr. Babcock said.
Copyright © 1999 The Dallas Morning News
Judge Henderson issued a FAX (attached) issuing pre-ruling
instructions to both parties in regard to DSC/Alcatel's
"Motion to Compel and for Sanctions".
I finished scanning and OCR'ing the legal filing from the hearing and hopefully the filings can get converted to HTML and placed on www.unixguru.com
by the end of the week.
I'll let everyone know what the ORDER is when it is issued.
It you want me to e-mail you these filings, let me know.
- Evan Brown
Board Certified - Criminal Law
June 16, 1999
Eric Pinker
Eric Pearson
Re. DSC Communications Corporation v Evan Brown, No. 199-00596-97
Dear Counsel:
I trust you have had same opportunity to consider the issues raised by the Court at the motion hearing. In an effort to explore these matters further, I Issue the following marching orders:
Because Brown's response to this latest directive may have a bearing on
any sanctions imposed by the Court, I request that Counsel for Brown
acknowledge receipt of this letter by returning a signed copy of this letter
indicating his receipt.
Thank you for your attention to this matter.
Judge Henderson of the 219th State District Court
heard DSC/Alcatel's "Motion to Compel and for Sanctions"
about 9:30am yesterday.
The judge listened to both parties and then stated that
he would review the filings and arguments then confer
with the parties via conference call within the next few
days before ruling on DSC's motion.
I'll let everyone know what the order is when it is issued.
As soon as I receive copies of all the filings for yesterdays
hearing, I'll post them to the WWW site.
- Evan Brown
DSC filed an expedited "Motion to Enforce Continuation
of Defendant Evan Brown's Motion for Summary Judgement"
with the court and after a phone conference with the
parties, Judge Henderson granted DSC's motion.
Our "Summary Judgement" hearing scheduled for next week
has been canceled and the court has scheduled DSC's
"Motion to Compel and for Sanctions" for June 10th.
Our "Motion for Summary Judgement and Brief in Support"
has been posted to www.unixguru.com. I'm still working
on OCR corrections to the exhibits.
The following documents have been scanned, OCR'ed,
edited for correctness and will be put on the WWW page
as time permits.
Affidavit of Robert D. McMurray
Appeals Court Order - Issued February 11, 1998
Appeals Court Order (Mandate) - Issued February 11, 1998
Order Denying DSC'S Motion To Compel Interrogatory Responses
- Evan Brown
Our "Motion for Summary Judgement" and "Brief in Support", originally
filed on September 29,1997 has been set for hearing on Wednesday,
May 19,1999 at 9:00 a.m. in Judge Henderson's 219th State District Court,
Collin County, Texas (McKinney,TX).
The delay in hearing this "Motion for Summary Judgement" was due to
a "Motion for Continuance" filed by DSC and granted by the court.
The "Motion for Continuance" claimed that DSC was unable to respond
to our "Motion for Summary Judgement" until I disclosed my "idea".
I disclosed my "idea" to the court back on January 25,1999.
- Evan Brown
DSC/Alcatel filed a motion in State District Court "DSC'S MOTION TO COMPEL INTERROGATORY RESPONSE AND FOR SANCTIONS" which was heard via telephone conference on Dec 3rd by Judge Curt Henderson.
Attached is the draft ORDER prepared by DSC's attorneys which Judge Henderson is expected to sign. I have not yet received a signed copy of the ORDER.
Also attached are a letter to the court from Eric Pearson (Sayles & Lidji) requesting additional protection on disclosure of my response to interrogatory question #7 (disclose my "idea") and a copy of my Affidavit.
- Evan Brown
>>>Please e-mail evan@unixguru.com if you do not want to receive these lawsuit updates.
PS.
The phone company has completed installation of my T-1 circuit and I'm now connected to the InterNet (64kb Frame-Relay).
Life is improving. :-)
The Texas Court of Appeals denied our request for En Banc Reconsideration.
DSC/Alcatel filed a motion in State District Court "DSC'S MOTION TO COMPEL INTERROGATORY RESPONSE AND FOR SANCTIONS" which was heard Dec 3rd by Judge
Curt Henderson. Judge Henderson granted DSC's motion and fined me $1,000
for the sanctions. The motion also included a request for a "death penalty
sanction" if I don't disclose my "idea" to DSC.
It appears that the legal system in Texas can take what is in my brain and
give it to DSC. I don't feel good about this. :-(
I'll send out Judge Henderson's Court Order as soon as I receive a copy.
- Evan Brown
DSC held a special stockholders meeting yesterday in Plano to vote
on Alcatel's offer to buy-out DSC. The stockholders approved the buy-out
and as soon as the United States Department of Justice approves the
deal, DSC will belong to Alcatel (of Paris, France).
I still haven't heard anything new on my lawsuit since we filed
our "Motion for En Banc Reconsideration" which was filed last April.
- Evan
We filed a Motion for En Banc Reconsideration with the State
Court of Appeals.
The Motion for En Banc Reconsideration is a request to have all
the judges in the Texas 5th Circuit Court of Appeals to hear and
rule on our appeal. Our original appeal was heard by a three
judge panel and we argue that they erred in their conclusions
and failing to address the merits of our original appeal.
I'll scan the Motion for En Banc Reconsideration and add it to
our home page under "Legal Filings". You might enjoy reading
the motion.
- Evan
We received notice from DSC requiring me to appear at DSC's
offices in Plano at 9:00am beginning Monday Feb 23rd to
begin disclosing my "idea".
We have informed DSC that I do not intend to appear at their
offices to disclose my "idea".
What I think will happen next is that DSC will file a
Motion for Contempt with Judge Henderson in the 219th
State District Court next week. If this happens, then the
court clerk will schedule a day and time for a hearing on the
Motion for Contempt where we will present our reasons why
we should not disclose my "idea" to DSC.
I'll keep you posted as the saga continues.
- Evan
We're in the news again. The cover story in Forbes Magazine includes a short piece on the lawsuit on page 101.
I also learned that the Court of Appeals denied our request
for re-hearing.
The lawsuit is now back in Judge Henderson's court in McKinney.
I'll keep you posted as the saga continues.
- Evan Brown
During the deposition of Lance Flores on Friday, we learned that Mr. Flores
is preparing to file 15 Patent Applications for all the various processes
involved in performing code conversion from low level code to high level
source code. Mr. Flores expects to file all his patent applications before
the end of January.
We also received a letter from DSC's lawyers on Friday, requesting that I
appear today at 9:00am to begin disclosing my "idea".
On Monday, we filed a Motion for Re-Hearing with the Court of Appeals in
Dallas. This motion is to have the court rule on the non-disclosure portion
of our previous appeal which they did not address in their JUDGEMENT or
OPINION responses.
We also notified DSC that I would not be appearing today to disclose my "idea"
since the Court of Appeals has jurisdiction since the filing of our motion.
Hopefully the Court of Appeals will review the mandatory disclosure portion
of the Temporary Injunction and rule in our favor.
- Evan Brown
I received notice today that the State 5th District Court of Appeals in Dallas
ruled on the appeal of my Temporary Injunction Order.
Here are the "scanned" copies of the documents. Appeals Court - JUDGMENT and Appeals Court - OPINION
- Evan Brown
Note: I haven't added these documents to my web page "http://www.unixguru.com"
but I should have these plus many others added to the "Legal" section
by the end of this weekend.
With the help of several friends, we have created a web site for
the "DSC Communications, Inc. vs. Evan Brown" lawsuit.
"http://www.unixguru.com" contains most of the legal filings and documents. The web page will continue to be updated as the remaining legal documents are scanned. We will also be providing complete transcripts of the court hearings and other documents as they are filed with the court.
DSC has a web site "http://www.dsccc.com" and if you look in the "What's New" section, you will see DSC's summary of the lawsuit. (NOTE: This is no longer a valid URL) DSC provides the ability to "download" several exhibits in ".pdf" form.
DSC makes several claims in their summary of the lawsuit. I believe
that most of these claims are not relevant to the lawsuit but were
put there to satisfy the concerns of DSC's customers, stock holders,
investors and the like.
Our position and legal arguments are best defined in the hearing
transcripts, Summary Judgments and briefs filed with the courts.
I believe that my "idea" is not covered by the agreement I signed
and that DSC does not own my brain.
- Evan Brown
Note: Some exhibits and documents are protected by a confidentiality
agreement and are not available to the public. These exhibits and
documents are omitted from the web site. :-(
The NBC News crew was at the Texas 5th Circuit Court of Appeals yesterday
and briefly interviewed DSC's lawyers and my lawyers. Today the NBC News
crew did an in depth interview with me, Dick Sayles and Eric Pearson at
Sayles and Lidji's offices in Dallas.
The news crew informed us that they will also be interviewing DSC today.
The news story is scheduled to air this Sunday at 5:30pm local time across
the US. Unfortunately it won't be aired in the Dallas/Ft.Worth area because
the local NBC affiliate has something else on at 5:30. :-(
For those people with a satellite, you can pick it up from the NBC News feed
if you know where it is.
- Evan
We had our hearing today in the Texas 5th Circuit Court of Appeals in
Dallas, TX. Our appeal was of the manditory disclosure portion of the
"Temporary Injunction" order which ordered me to disclose my "idea" to
DSC. The order also allowed DSC to apply for a patent on my "idea" before
ownership of my "idea" had been determined by a jury at trial.
We had been contacted by Court TV concerning our appeal and the stated
we had no objections. The Court of Appeals sent letters to my lawyers
and to DSC's lawyers notifying us of Court TV's request to video the
hearing. We responded that we had no objections to Court TV but DSC
filed an objection and Court TV was not allowed to video the hearing.
NBC News was there when we arrived but was not allowed in the court room.
All three judges asked numeruos questions of both my lawyer and DSC's
lawyer. I feel good about the way the hearing went and I look forward
to learning of the appeals court ruling(s). It could be days to weeks
before we hear from the court of appeals.
- Evan Brown
I learned yesterday that Judge Henderson has granted our motion:
"Defendant's Motion to Strike Petition in Intervention of Lance Flores".
This means that how it's only DSC .vs. Evan Brown and Lance Flores is
out of the lawsuit.
- Evan Brown
The "Defendant's Motion to Strike Petition in Intervention of Lance Flores"
was heard this morning in Judge Henderson's courtroom. Judge Henderson
did not rule on the motion in court but will inform us later as to his
decision.
The hearing on the Temporary Injunction is still scheduled for Dec 10 in
the Dallas Court of Appeals.
I am moving out of Plano to my farm in Hamilton County. It is located
about 150 miles southwest of Plano or about 30 miles south of Stephenville.
My new phone number will be (254) 796-2416 when the phone company installs
the phone line. The phone company expects to have the line installed
within he next 30 days. They have to get a permit from the highway
department to cross the road and then they have about half a mile of phone
cable to lay to reach my property.
- Evan Brown
PS. An article about the lawsuit is in the Dec issue of Playboy magazine on
page 60. I'm amazed at all the places this lawsuit has appeared. :-)
I received notice that "Defendant's Motion to Strike Petition in Intervention
of Lance Flores" has been set for hearing before Judge Henderson on Nov 14th
at 9:00am.
This hearing is to challenge the intervention from Lance Flores and have the
court rule whether or not the "Petition in Intervention of Lance Flores" is
valid.
- Evan Brown
We received notice from the Fifth District Court of Appeals that our
hearing on "Cause No. 05-97-01098-CV; Evan Brown v. DSC Communications
Corporation" has been set for Wednesday December 10, 1997 at 3:00pm.
This hearing is for our Appeal of the Temporary Injunction Order signed
by Judge Henderson which requires me to disclose my "idea" to DSC.
- Evan Brown
We filed a second Motion for Summary Judgement based on our belief that
an idea alone does not constitute an invention as the word invention is
defined in patent law. We argue that an "idea" does not meet DSC's qualifying
language in the "Employee Patent, Copyright ... Agreement" where it states
"... inventions made or conceived ..." belong to DSC. Intellectual property
law has very specific definitions of the words invention, made and conceived.
DSC filed a motion for continuance on our second Motion for Summary Judgement
and DSC's
DSC/Alcatel .vs. Evan Brown, the saga continues
Second message this day
DSC/Alcatel .vs. Evan Brown, the saga continues
DSC/Alcatel .vs. Evan Brown, the saga continues
Magazine Section: Street Talk
Written by: Dan Michalski
Title: Who Owns Your Brain?
DSC/Alcatel .vs. Evan Brown, the saga continues
Alcatel, Fired Worker Tangle Over Who Owns Software Idea
9/27/0 3:21 (New York)
(Published in the October issue of Bloomberg Markets magazine.)
The Battle for Ideas
While Brown's situation may be extreme, the issue that's driven him into such dire circumstances has become increasingly important in an economy powered by technology -- and the people who invent it. Companies such as Alcatel are getting more aggressive in cases involving employee ideas -- officially dubbed ``intellectual property'' -- as they fight to keep knowledge they deem vital from falling into competitors' hands. Legal experts predict the number of suits against workers and rival companies will balloon as competition for skilled employees intensifies and turnover in engineering jobs runs as high as 15 percent. This year alone, some of the biggest names in the computer world -- including Intel Corp., Cisco Systems Inc. and Lucent Technologies Inc. -- are involved in trade-secret suits. ``There's absolutely no question we're seeing more intellectual property disputes and disputes with departing employees,'' says Michael Epstein, head of the technology and proprietary rights practice at New York law firm Weil, Gotshal & Manges. ``It's a huge concern among high-tech companies.''
High Stakes
The cases can involve considerable stakes. Brown estimates he's spent $500,000 on legal fees. He says he can't find work aside from the occasional consulting agreement because no employer wants to take on his legal woes. What's worse, the court order forced him to spend more than three months at his former workplace to develop and test his software idea -- without pay, without a stipend for his expenses, and with little hope of benefiting from what he estimates is a $1.5 billion market for his idea. ``They're trying to make an example out of me for all their other employees,'' Brown says from under the brim of his white cowboy hat, his boots lacerated from the limestone rock that dots his farmland. ``They are not entitled to this. Corporations cannot own parts of people. They can't own your brain.'' Alcatel doesn't agree. ``We have lots of assets, but there are no assets anywhere near as valuable as our intellectual property,'' says George Brunt, Alcatel's U.S. general counsel. ``The competition is all based around who can innovate.''
Lawsuits Galore
Europe's second-largest phone equipment maker has suits pending against big companies such as Cisco and start-ups including optical switch developer Chiaro Networks Ltd. In the past four years, Alcatel -- and DSC before it -- have won most of them, collecting a judgment of $140.7 million against Next Level Communications Inc., in 1997. That's a hefty sum, considering some intellectual property cases are settled for no more than legal fees and an agreement to keep workers from disclosing secrets at the new job. Alcatel isn't alone. Fujitsu Ltd. is suing Cisco, claiming the No. 1 maker of networking equipment hired 27 Fujitsu workers to steal secrets about communications gear. Fujitsu filed the case in December 1999 in the courthouse where Brown's suit is pending.
Employees as Suspects
In March No. 1 computer-chip maker Intel sued Broadcom Corp., a fast-growing rival in which Intel was an early investor. The suit claimed Broadcom hired four Intel workers to gain designs and marketing plans for communications chips. A state district judge in California, where the case was filed, ruled in May that three of the employees hadn't revealed Intel secrets. The judge issued an injunction against the fourth, preventing him from being hired because he had allegedly mentioned confidential Intel information in his job interview at Broadcom. Intel fired a new round in August. It sued Broadcom in federal district court in Wilmington, Delaware, and accused its rival of using a ``carefully crafted plan'' to build its business with Intel patents for cable and high-speed networking products. Broadcom responded that Intel is simply trying to discourage its employees from seeking better jobs.
More Than Tech Companies
Companies outside the computer industry aren't immune. In one of the most publicized cases, No. 1 retailer Wal-Mart Stores Inc. accused Amazon.com Inc. of raiding 15 top workers in 1998. The suit, filed in Arkansas state court in October of that year, claimed the biggest Internet bookseller and Drugstore.com Inc., in which Amazon holds a 23 percent stake, wanted Wal-Mart's expertise in computerized systems to help Amazon sell more general merchandise.
The companies settled in April 1999 after Amazon agreed to limit the duties of former Wal-Mart executives and consultants. The companies also agreed not to solicit each other's employees for a year. No money changed hands.
Legal Muscle
Brunt, the Alcatel general counsel who had the same job at DSC, says his company has an obligation to protect information that could be ferreted away by workers and used against it. When Alcatel bought DSC in 1998, it inherited Brunt's legal strategy and his formidable track record in court. DSC's biggest victory was its $140.7 million judgment against Next Level, now majority owned by Motorola Inc. The company claimed two workers had formed Next Level while at DSC and had used DSC technology to make Next Level's set-top boxes for cable TV service and Internet access. In December Alcatel squared off in a Dallas courtroom with Samsung Electronics Co., accusing the Korean company of stealing designs for phone switching systems by hiring Alcatel workers. The companies settled out of court in January. Terms weren't disclosed. Brunt rejects any notion that his company is a legal bully. ``We've had some high-profile cases and some big judgments that have put it a little more in the limelight,'' he says. ``One of the primary vehicles for companies to protect their intellectual property is to go to court.''
Top Secret
The first line of defense for companies anxious to protect intellectual property is to get employees to sign confidentiality agreements, says Epstein, the Weil Gotshal attorney. ``The rule is that any confidential information that an employee learns during the employee's job belongs to the employer,'' he says. Even so, courts are finding it harder to distinguish between confidential information and general knowledge. Also, intellectual property is still a relatively young branch of jurisprudence, meaning, courts must look to different areas of the law -- from contracts to patents -- for guidance. In many cases, Alcatel has used an argument termed ``inevitable disclosure.'' The concept stems from a 1995 federal appeals court ruling in Chicago involving soft drink maker PepsiCo Inc. and Quaker Oats Co. PepsiCo sued over Quaker's hiring of a key PepsiCo executive, William Redmond. The court found that Redmond knew about PepsiCo's marketing plan for its All Sport drink and that he inevitably would use his knowledge to help Quaker market its rival Gatorade. ``Redmond could not be trusted to avoid that conflict of interest,'' the appeals court said. The ruling prevented Redmond from doing his job for six months and from ever disclosing PepsiCo secrets. ``I was at Quaker, but basically on the bench,'' says Redmond, who left in 1996 to join Garden Way, a Troy, New York, maker of tillers, snow blowers, and lawn mowers.
Sue First, Question Later
For high-tech companies, simply getting a new design to customers first often ensures success. The process can go into warp speed when new technology is at stake. A microprocessor, for example, can move from design to production in 12 months compared with two to three years for a new car. ``As the economy and technology move faster, people do rely on other ways of keeping their information confidential,'' says Chuck Oslakovic, an attorney specializing in trade-secret law at Chicago firm Leydig, Voit & Mayer. That may mean suing departing employees as a preemptive strike against a future competitive threat. For Brown it's meant spending eight hours a day at Alcatel's offices hunched over a computer screen. He says that Alcatel forbids him to leave the room to go to a vending machine, and an employee assigned to watch him notes his rest room breaks.
Billion-Dollar Idea?
The idea that has spawned so much trouble sounds simple: develop software that translates outdated computer languages into one that today's machines can understand. So far, though, no one has created a program that can read all the quirks in the older systems. ``This could be extremely valuable if there's anything behind the idea,'' says Brunt, who believes the concept has merit because Brown is ``an expert in developing software tools.'' Brown claims he began working on the idea as far back as 1976, 11 years before DSC hired him. When he joined DSC in April 1987, he signed an agreement that he would disclose any inventions related to his job as a software designer. In 1996 the solution to the computer code problem he'd been pondering came to him. He filed a notice with DSC's legal department in April of that year saying he had developed his idea ``from my own personal experience and on my own time.'' He asked the company to issue a release, stating that his idea wasn't covered by his employment agreement because it involved ``software reverse engineering'' -- basically taking modern computer code, breaking it down, and rewriting it in the outdated language. ``DSC is not in the business of software reverse engineering, and my job at DSC does not involve reverse engineering,'' Brown wrote in his April 19 notice to DSC.
Slippery Slope
DSC disagreed, and the company and Brown spent almost a year trying to reach a compromise. Brown says he went on vacation to Europe in April 1997 and returned to find he'd been fired. DSC sued days later, claiming Brown was trying to sell the concept to competitors. Brown says that wasn't the case. Few things have gone Brown's way since. In June 1997 State District Judge Curt Henderson ordered him to disclose the idea to attorneys and DSC engineers. Brown claims he explained the concept to the DSC team but the team couldn't make it work. DSC argued the disclosure wasn't complete, and the judge agreed.
In January of this year, Henderson again ordered Brown to disclose the idea. The judge sanctioned Brown for failing to properly reveal it the first time and awarded DSC 20 percent ownership should it be patented. In other words, Alcatel will get 20 percent of any revenue if the idea is successful. So far, neither side has sought a patent. Brown filed for bankruptcy in late January, delaying the suit even longer, in part because the bankruptcy court had to determine whether the idea was an asset. Legally, the idea is worthless because no one's offered to pay for it, the bankruptcy judge decided. The case began moving forward again in June, when Brown was ordered to report to DSC's headquarters and begin the disclosure.
No Shower, Lots of Armadillos
Brown now calls home his farm near the hamlet of Cranfills Gap in the Texas Hill Country. Except for a high-speed phone line, his new residence offers few amenities. Even a shower is a mile down a dirt road in a farmhouse that his sister is restoring.
The turn of events has left him plenty of time to ruminate as he watches deer congregate near a cedar brake at dusk and chases armadillos that root around in his garden. He's determined to implement his invention on Alcatel's computers so the company can't again claim he's holding back. Only after the judge finds Brown has fully revealed the idea can the case go to trial, where Brown believes he finally may prevail. ``The only chance I have is, get before a jury,'' he says. Brunt says Alcatel is equally determined to fight for valuable intellectual property. One of the few things he and Brown agree on is that the software could be worth more than $1 billion. As Brown wraps up the disclosure this week, he says he has seen signs that the idea would work, which makes his ordeal even tougher because it could mean giving Alcatel what he has spent years trying to protect. ``That really eats on me, but I'm not going to give up,'' he says. ``My freedom of my thoughts is worth everything I own or possess.''
DSC/Alcatel .vs. Evan Brown, the saga continues
DSC/Alcatel .vs. Evan Brown, the saga continues
Beginning of Legal Text
of the State of Texas
Curt B. Henderson, Judge Presiding
No. 199-00596-97
DSC Communications Corporation
vs.
Evan Brown
=====================================================================
ORDER
_________________________
Curt B. Henderson
Judge Presiding
End of Legal Text
DSC/Alcatel .vs. Evan Brown, the saga continues
Alcatel USA to Dismiss Suit Against Samsung
DSC/Alcatel .vs. Evan Brown, the saga continues
Judge imposes limits on Alcatel spectators
Media lawyer says ruling is gag order 11/16/99
By Jennifer Files / The Dallas Morning News
DSC/Alcatel .vs. Evan Brown, the saga continues
CURT B. HENDERSON
Judge, 219th Judicial District Court
Collin County Courthouse
McKinney, Texas 75069
Texas Board of Legal Specialization
750 North St. Paul
Suite 1400
Dallas, Texas 75201
4400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
<< signature >>
Curt B. Henderson
DSC/Alcatel .vs. Evan Brown, the saga continues
DSC/Alcatel .vs. Evan Brown, the saga continues
DSC'S Second Motion To Compel Interrogatory Responses And For Sanctions
And Request For Expedited Consideration
DSC .vs. Evan Brown, the saga continues
DSC .vs. Evan Brown, the saga continues
DSC .vs. Evan Brown, the saga continues
DSC .vs. Evan Brown, update
DSC .vs. Evan Brown, the saga continues
(about round 20)
DSC .vs. Evan Brown, the saga continues
(about round 19)
DSC .vs. Evan Brown, the saga continues
(about round 18)
DSC .vs. Evan Brown, the saga continues
(about round 17)
DSC .vs. Evan Brown, the saga continues
(about round 16)
DSC .vs. Evan Brown, goes onto the Internet
DSC .vs. Evan Brown, the saga continues
DSC .vs. Evan Brown, the saga continues
(about round 15)
DSC .vs. Evan Brown, the saga continues
(about round 14)
DSC .vs. Evan Brown, the saga continues
(about round 13)
My new address is:
Evan Brown
P.O.Box 31
Cranfills Gap, TX 76637
DSC .vs. Evan Brown, the saga continues
(about round 12)
DSC .vs. Evan Brown, the saga continues
(about round 11)
DSC .vs. Evan Brown, the saga continues
(about round 10)