Page:Dynamic Solutions v. Planning & Control.pdf/4

, see F.R.Civ.P. 65(b), until certain discovery could be completed and the preliminary injunction motion decided.

A hearing was held April 29, 1986 and May 2, 13 and 14, 1986, and testimony was taken from plaintiff’s principal and its expert witness. Plaintiff also introduced, in the form of deposition transcripts, testimony from defendant Censor, who appears to be the principal of defendant Planning and Control, Inc. (“PCI”). Defendants indicated that their only prospective witness was a computer expert of their own. (Tr. 384). For scheduling reasons, and because defendants strongly argued that plaintiff was not entitled to the requested injunction on the existing record, no testimony from defendants’ expert was taken. Instead, defendants were asked to make an offer of proof as to its expert’s testimony, and the parties then briefed the question whether plaintiff was entitled to the sought-after relief based on the testimony to date and the defendants’ proffer. That is the question now before me.

I. Factual Background

This case involves the breakdown of a once-symbiotic relationship between two companies and two principals. Defendant John Censor’s occupation is providing business training programs. At one time. Censor did business as “Censor and Company.” (Tr. 71–72). He now does business through PCI, and the parties have treated the two defendants as one. At least some of PCI’s training programs use computer simulation games; the computer software at issue here runs two of those games. Censor, however, appears to have only limited knowledge of computers and computer programming, and relies upon others to supply the necessary hardware and software.

Plaintiff Dymamic Solutions, Inc. (“DSI”) is in the computer business and has supplied PCI with software for computer simulation games for a number of years. DSI was formed in 1971 by its present principal, Joseph Melhado, and one Anthony Paris. Initially Melhado and Paris were equal partners in the company. In or about 1973 formal ownership of Paris’ share was transferred to Melhado, but Paris continued to receive 50 percent of DSI’s profits as compensation as an employee and vice-president of DSI until some time in 1985. (Tr. 9, 70–71). Both Paris and Melhado did computer programming for DSI.

The relationship between DSI and PCI began about 1972. Censor contacted Paris with an eye toward joining forces to provide a training course for one of Censor’s clients with a computer simulation component. Censor was to provide the training course and DSI was to provide the computer software. No software, however, was written until 1973, when Censor and Paris “got involved with Chase Manhattan Bank.” Censor created a training course for Chase, and DSI created the simulation software. Paris was apparently responsible for writing the “source code” created especially for the simulation games; this source code referenced and incorporated certain “utility codes,” or “utility routines,” that Melhado had written in the past for other DSI clients and which apparently cause the computer to execute certain specific functions which are useful in various programming contexts. The