Apple exec fights for new job, sues IBM

Computerworld - Apple Inc.'s newest executive, barred last week by a federal judge from working at the company, has countersued IBM, his former employer, arguing that the noncompetition agreement at the heart of the dispute is unenforceable and too broadly written.

Mark Papermaster, a 26-year veteran of IBM, filed a countersuit Thursday, less than a week after U.S. District Court Judge Kenneth Karas ordered him to "immediately cease his employment with Apple." Karas' temporary injunction on Nov. 7 was in response to a lawsuit IBM filed in late October, when it charged Papermaster with violating a 2006 noncompetition deal by accepting a position at Apple to head its iPod and iPhone development.

In the countersuit, Papermaster again argued that Apple and IBM are not really rivals. "Apple and IBM are not significant competitors," he said in the filing. "IBM primarily provides business services, while Apple's primary business is the design, manufacturing and marketing of consumer electronic products."

Papermaster also asserted that the noncompetition agreement he signed while at IBM was "unreasonably broad" because it tried to restrict him from working for "any company that engages in competition with his former business unit to any extent, even if Mr. Papermaster will not be working for the part of the company that does."

IBM has charged that Papermaster, who during his career with IBM was involved in the development of the Power line of microprocessors and in charge of the company's blade-server development, might be working on similar ventures at Apple. Last April, Apple bought P.A. Semi Inc., a chip design firm that creates high-end, low-power processors, a fact IBM mentioned in its Oct. 22 lawsuit. Papermaster has denied that his duties at Apple will include anything related to P.A. Semi or to personal computer design.

Ultimately, the noncompetition agreement is unenforceable, Papermaster's lawyers argued, because of where he lives and where Apple is located. The agreement, they noted, is governed by the laws of the state of New York, where IBM is headquartered, while Papermaster lives in Texas, and Apple is based in California. "Both states hold that such noncompetition agreements are unenforceable as a matter of public policy," the countersuit said.

Papermaster also said that when he took the Apple job, he signed a confidentiality agreement there that forbids him from bringing to the company any "confidential, or proprietary, or secret information" of IBM. "Papermaster has honored and intends to continue to honor his agreement not to disclose any confidential IBM information," the suit stated.

When Apple hired Papermaster to run its iPod and iPhone engineering group, IBM claimed that he had information about "highly confidential IBM trade secrets" that would "irreparably harm" the company if he's allowed to work for Apple.

In an earlier filing, Papermaster said that IBM had accepted his offer to continue working for another two weeks, and that during that time, IBM had not restricted his access to the IBM computer network or asked him to turn over his files. "IBM allowed him to continue working at IBM for two entire weeks, with unfettered access to all of his files and to IBM's entire computer network -- hardly what one would expect when an executive is leaving for a competitor," Papermaster's filing earlier this month said.

Also on Thursday, Judge Karas ordered IBM to post a $3 million bond to continue the case. The bond, common in such cases, is intended to pay for any costs or damages that Papermaster might suffer if the injunction is later overturned.

The next item on the case's calendar is a status conference slated for Tuesday in Karas' court in White Plains, N.Y.

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