HT-2021-000363 - [2025] EWHC 532 (TCC)

Fecha: 10-Mar-2025

Neon litigation

Neon litigation

43.

Mr Moores is a software entrepreneur and the main investor in LzLabs, Winsopia and LzLabs UK. In 1980 he founded BMC Software, Inc. (“BMC”) in Houston, Texas, a highly successful multinational company, developing and selling software products for IBM mainframe computers. In 1995 he founded Peregrine Bridge Transfer Corp (“Peregrine Bridge”), the predecessor to Neon Enterprise Software LLC (“Neon”).

44.

In about 2009 Neon developed “zPrime”, a utility that was designed to move discrete workloads off the mainframe central processor onto speciality processors. It was intended to disrupt the mainframe market by offering mainframe customers an alternative, less expensive means of processing legacy workloads. At the time, Mr Rockmann worked for a related company, Neon Enterprise Software Limited (“Neon Limited”) and was involved in selling the zPrime product.

45.

In December 2009, Neon commenced anti-trust proceedings against IBM Corp in the US District Court for the Western District of Texas (“the Neon litigation”). In its response to the Neon litigation, IBM Corp alleged that Neon reverse assembled z/OS, an IBM Program, to develop zPrime, in breach of its licence agreement with IBM Corp and that, by running zPrime, IBM customers unlawfully copied IBM’s copyrighted program code without authorisation, thereby committing copyright infringement.

46.

In 2011, following admissions by an employee of Neon that he had committed acts of reverse assembly and destroyed evidence, the Neon litigation was concluded by settlement. The settlement included agreed terms of a permanent injunction dated 31 May 2011, restraining Neon, Mr Moores and others (“the Enjoined Neon Persons”) from directly or indirectly reverse assembling, reverse compiling or otherwise translating any IBM program or any portion thereof without the prior written consent of IBM Corp. The terms of the injunction included:

a requirement for the Enjoined Neon Persons to deliver up the source, object and executable code and listings for each and every version or release of zPrime (and destroy other copies);

ii)

a prohibition on the Enjoined Neon Persons, directly or indirectly, from disclosing or transferring the source, object or executable code of zPrime to any other person;

iii)

a prohibition on the Enjoined Neon Persons, directly or indirectly, from developing, creating, modifying or using any software to enable workloads to be run on specialty engines (other than those expressly authorised in writing by IBM Corp);

iv)

a prohibition on the Enjoined Neon Persons, directly or indirectly, from disclosing or transferring any know-how relating to zPrime to any other person;

a prohibition on the Enjoined Neon Persons, directly or indirectly, from reverse assembly, reverse compilation or other translation of any IBM Program (as defined in the ICA dated January 19, 2000, between Peregrine Bridge and IBM) or any portion thereof, except with the prior written consent of IBM Corp.

47.

The terms of the injunction meant that operations at Neon and Neon Limited, including Mr Rockmann’s employment at Neon Limited, came to an abrupt end.