Compuware Corp. v. International Business Mach. Corp.

Full title: COMPUWARE CORPORATION, a Michigan corporation, Plaintiff, v. INTERNATIONAL…

Court: United States District Court, E.D. Michigan

Date published: Mar 13, 2002

Case No. 02-70906 (E.D. Mich. Mar. 13, 2002)

Opinion

Case No. 02-70906

March 13, 2002

Attorneys for Plaintiff, DANIEL JOHNSON, STUART MEYER, FENWICK WEST LLP., Palo Alto, CA., DAVID A. ETTINGER, HONIGMAN MILLER SCHWARTZ AND COHN, LLP., Detroit, MI.

COMPLAINT FOR COPYRIGHT INFRINGEMENT, MISAPPROPRIATION OF TRADE SECRETS, INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS, UNLAWFUL TYING, MONOPOLY LEVERAGING, ATTEMPTED MONOPOLIZATION, TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCY, UNFAIR COMPETITION AND UNFAIR TRADE PRACTICES

CAPEL, United States Magistrate Judge.

DEMAND FOR JURY TRIAL

Now comes Plaintiff Compuware Corporation ("Compuware"), for its claims for relief against Defendant International Business Machines Corporation (IBM"), and alleges as follows:

PRELIMINARY STATEMENT

1. This complaint is being filed to challenge unlawful copyright infringement and anticompetitive behavior by IBM directed at Compuware and other firms selling software products which aid companies in their mainframe computer testing, data management and fault management (the "mainframe software tools."). IBM has copied and misappropriated portions of Compuware's mainframe software tools, and wrongfully used Compuware's technology to develop competing products, including, among other things, File Manager. IBM's wrongful conduct is depriving Compuware of goodwill, revenues, and profits from the sale of its tools.

2. IBM is also using its monopoly power in the sale of mainframe computers and related software to subvert competition on the merits. In particular, IBM is (a) denying critical information to Compuware and others in an effort to undermine their development efforts, (b) tying the licensing of its monopoly software to mainframe software tools licensed in competition with Compuware and other ISVs so that customers are forced to obtain mainframe software tools from IBM, and (c) using its position operating the information technology departments of thousands of major corporations to steer their purchases of the mainframe software tools. IBM is thus using its monopoly power to harm competition and interfere with free customer choice and suppress product innovation. This threatens to cause great harm to the thousands of large corporations that use mainframe software tools to better run their computer systems and develop new computer applications.

3. This action arises under the Copyright Act, 17 U.S.C. § 101, et seq., and for misappropriation of trade secrets and intentional interference with contractual relations, unlawful tying, monopoly leveraging, denial of an essential facility and attempted monopolization under the Sherman Act, 15 U.S.C. § 1 2, tortious interference with business expectancy, unfair competition, and unfair trade practices.

JURISDICTION AND VENUE

4. This Court has jurisdiction under 15 U.S.C. § 415 and 26, 28 U.S.C. § 1331, 1337, 1338(a) and 1338(b) and supplemental jurisdiction under 28 U.S.C. § 1367. This Court also has subject matter jurisdiction under 28 U.S.C. § 1332 because plaintiff Compuware is incorporated and has its principal place of business in Michigan, defendant IBM is incorporated in Delaware and has its principal place of business in New York, and the amount in controversy exceeds $75,000, exclusive of interests and costs.

5. Venue is proper in this district under 28 U.S.C. § 1391(b), (c) and 1400(a) and 15 U.S.C. § 15 and 22. IBM is found within this judicial district, transacts substantial business within this judicial district, and has agents in this judicial district IBM has sold substantial volumes of products contained in the relevant market into this judicial district and maintains offices in this judicial district. This Court has personal jurisdiction over defendant IBM because IBM transacts business within this district and the State of Michigan.

PARTIES

6. Plaintiff Compuware is a Michigan corporation with its principal place of business at 31440 Northwestern Highway, Farmington Hills, Michigan.

7. Compuware is informed and believes and thereon alleges that defendant IBM is a Delaware corporation with its principal place of business at Armonk, New York.

INTERSTATE COMMERCE

8. Compuware and IBM are substantially engaged in interstate and foreign commerce and in activities substantially affecting interstate and foreign commerce, selling their products and services to purchasers located throughout the United States and the world. Compuware and IBM have also purchased substantial products and services in interstate commerce which are used in the sale and for licensing of the products at issue in this complaint.

9. As alleged below, Compuware is informed and believes that IBM has engaged in copyright infringement and antitrust violations, and related causes of this action, that have been within the flow of, and have substantially affected, interstate and foreign trade and commerce. IBM's practices at issue here are being undertaken as part of a global strategy directed by, and with the benefit ultimately inuring to, IBM in the United States. If not enjoined, IBM's practices will impair the flow of interstate and foreign commerce by reducing the quality of, and increasing the price of, the products sold in the mainframe software tools markets described below and otherwise restraining competition as further described below. The effect of these practices on Compuware is worldwide, with the ultimate injury inuring to Compuware in the United States.

GENERAL ALLEGATIONS

10. As explained in more detail below, IBM dominates the mainframe market and many of the markets involving software products that are needed to serve the mainframe "environment." Independent Software Vendors (ISVs) such as Compuware develop and provide software "tools" that work in this environment. Customers, in order to maintain and use their mainframe computers develop programs (software tools) to diagnose and eliminate any software or hardware problems. These software tools work with IBM's hardware and software. ISVs developing these tools must have access to IBM technical information in order to develop and service customers in the IBM environment.

11. Much of the hardware and software needed to operate in this IBM environment is developed by IBM. Further, IBM has its own division, IBM Global Services, that operates the computer systems of, and performs programming for, thousands of corporations, making decisions for many of them as to the software tools they will purchase. For these reasons, it is impossible for a third party to supply mainframe software without the cooperation of IBM.

Mainframe Market

12. One relevant market in this case involves "high end" mainframe computers. These computers are large, powerful computers used for processing very high volumes of information. Most of the world's largest corporations and government entities rely on these mainframe computers for their high volume and mission-critical data processing needs, including matters such as billing, accounting, order entry, record keeping and transaction processing. There is no reasonable substitute for mainframe computers for these functions, since no other type of computer can process the required information as rapidly, reliably and economically.

13. The vast majority of mainframe computers have been manufactured by and sold by IBM, including, particularly, its z Series 900 and S/390 systems. In excess of 85% of high end mainframe computers currently being utilized and maintained worldwide are IBM computers.

14. IBM's two most significant mainframe competitors, Amdahl and Hitachi, have exited the mainframe market within the last three years. IBM's remaining mainframe competitors sell relatively few mainframes, primarily to particular geographic niches (Bull in France, Fujitsu and NEC in Japan, and FSC in Germany) or to particular kinds of customers (Unisys). IBM does not face any across the board competition for mainframe customers.

15. Entry into the manufacture and sale of mainframe computers is extremely difficult. Development of a new mainframe computer takes many years and requires a very substantial volume of sales to justify the investment. Customer acceptance of such products is extremely slow, since mainframe computers are used for many mission-critical functions, and no customer would purchase a mainframe computer if there were any doubt about its reliability. Moreover, any new mainframe which did not utilize an IBM operating system could not succeed unless customers were willing to switch operating systems, which would involve substantial additional bafflers, as explained below. There has been no new entry into the mainframe market for at least 20 years. For all these reasons, IBM possesses monopoly power in the high end mainframe market,

Operating Systems Market

16. Mother relevant market in this case is the market for operating systems for high end mainframe computers. The operating system is a software system that controls the operational resources of the computer and allows application software to run on the computer. Virtually all operating systems compatible with IBM mainframe computers are sold by IBM. The most common operating systems in use on large mainframe computers are IBM's OS/390 and z/OS operating systems with thousands of customers worldwide.

17. As with computer hardware, a new operating system for a mainframe is extraordinarily complex and takes many years to develop. Because of the mission-critical nature of the work performed on IBM mainframes, it is extremely unlikely that a customer would choose an operating system that has not been thoroughly developed, tested and proven over many years. Additionally, customers are extremely reluctant to utilize an operating system that has not been developed by IBM, because of concerns that such a system might not be fully effective or would be incompatible with present or future IBM mainframe computers.

18. Even more importantly, a new competitor would be very unlikely to be able to match the "applications" advantages of IBM operating systems. Thousands of software products (referred to as "application software") have been developed by ISVs to work on the IBM operating systems. These products make programming on the IBM mainframe much easier and more efficient. For any new operating system to be considered a reasonable substitute for IBM's systems, an equally wide variety of comparable application software would need to be developed to make the use of the system competitive with IBM's products. This would be extremely unlikely, since any new operating system would not possess the volume of business that would provide an incentive for ISVs to write many application programs for use on the new system.

19. An even greater application advantage arises from the "customized" applications developed to work on the IBM operating systems by the firms using those systems. Purchasers would not switch from the use of mainframes and mainframe operating systems due to small but significant changes in price (and have not done so) because of their very substantial investments in the training of their own programmers on the mainframe operating systems and the millions of dollars invested in customized computer programs that work on these operating systems. A firm would have to duplicate those multimillion dollar investments if it chose to use a new operating system and the computer that would run it.

20. For these reasons, entry into the production and sale of operating systems for use on high end mainframe computers is extremely difficult. There has been no new entry into the mainframe operating system market for at least 10 years. Because of its entrenched market position and disproportionate market share, IBM possesses monopoly power in the sale of operating systems for use on high end mainframe computers.

Compliers and Utilities Software

21. In addition to operating systems, IBM provides other software used by large numbers of the major corporations utilizing mainframe computers. This software includes products permitting use of the COBOL, C/C++ and PL/I computer languages; database management; and high volume online transaction processing software. Each of these kinds of software represents another relevant market in this case.

22. COBOL and C/C++ are the dominant computer languages used for high volume business processing applications around the world. PL/I is a language, developed by IBM, which is used widely by large businesses in Europe, Canada and Japan. These languages enjoy many millions of users, including most of the world's major corporations, which use them for programming on their mainframes. It is estimated that the core business applications of large companies running mainframe computers worldwide are written in COBOL, and comprise at least 100 billion lines of code, written by between 2 and 3 million programmers.

23. Most of these major users have utilized COBOL, PL/I or C/C++ for many years decades for COBOL. Such users conduct many computer operations in these languages and have multimillion dollar investments in programming and personnel training in the use of each of these languages. A decision by one of the corporations to adopt other programming languages in place of one of these languages would require the corporation to undertake a tremendously expensive replacement of custom programs and retrain its programmers. Moreover, because of the thousands of application programs developed in each of these languages, each of these languages is especially effective. For these reasons, users have a very substantial investment in the use of each of these languages on IBM mainframes, and customers would not stop the use of any of these languages even if costs increased by a small but significant amount relative to other alternative computer languages. IBM's terms and policies relating to such software have been set long after most users have made their investments in these programming languages.

24. Particular software products are necessary for users to program in these languages on IBM mainframes. This software includes "compilers" — programs that translate the human-readable source code of each program (such as a COBOL source program) into machine readable object code that is an executable program. There is no substitute for using such compilers in developing COBOL, PL/I or C/C++ programs on a mainframe computer, and the software containing such compilers with respect to each of these languages ("utilities software") therefore each represents a relevant market in this case.

25. IBM sells virtually all the software including compilers permitting the use of COBOL, C/C++ and PL/I on IBM mainframe operating systems. The few competing products have seen sales decline significantly, and are now rarely used. Users of COBOL, PL/I and C/C++ on mainframes need IBM's updated releases of COBOL, PL/I and C/C++ compilers to properly operate their IBM mainframe computers. IBM therefore possesses monopoly power in the markets consisting of each of these utilities software releases.

The Database Market

26. IBM also possesses monopoly power with respect to other software products that it provides for use on IBM mainframes. One such product is DB2 for z/OS and OS/390 ("DB2"). DB2 competes in the market for high volume database management software used on mainframe computers, which is another relevant market in this case. Such software is necessary to rapidly and economically organize and access data used on a mainframe computer in high volume applications. Virtually all large organizations utilizing mainframe computers purchase such software, because there is no reasonable substitute for it. Entry into this market is difficult because users have a significant investment in the software and the application development barrier to entry described above also exists with respect to this software. There has been no competitive entry into this market in at least ten years.

27. Through DB2 and its other database products such as IMS/DB, IBM possesses monopoly power in the market for high volume database software used on mainframes. According to IBM, DB2 for OS/390 supports key data applications for 80% of the Fortune 1000 companies.

The "Real-time" Transaction Market

28. Another relevant market is the market for high volume transaction-processing software for use on mainframe computers. Such software is critical for firms engaged in high volume "real time" transactions such as online ordering, bill-paying and banking. There is no technically viable alternative for such software in performing these functions.

29. IBM offers its CICS product as the critical software to conduct high volumes of online, interactive transactions. IBM states on its web site that CICS handles greater than 30 billion transactions per day, and that each day more than $1 trillion in transactions are processed in CICS. In fact, the use of CICS increased by more than 50% from 1998 to 2000. IBM also states that more than 30 million people use CICS, and that thousands of software companies support it with specific applications. IBM claims that CICS provides "unmatched scalability, performance, reliability, security and data integrity. . . ."

30. There is no significant competition for CICS in the market. Moreover, successful competitive entry into the market would be very difficult and time-consuming. As is the case for the relevant markets discussed above, there is a substantial application development barrier to entry into the high volume on line transaction processing software market because of the thousands of applications developed for use with CICS and the likely reluctance of most ISVs to develop new applications for a competing product without a substantial volume of business. Customers are also very unlikely to switch from CICS, given their substantial investments in employee training and the development of computer programs to work on CICS. For these reasons, IBM, through its CICS software, possesses monopoly power with respect to high volume online transaction processing software.

Mainframe Software Tools Markets

31. Three other relevant markets are the markets for particular application development software, which aid computer programmers and system administrators in performing certain functions on their mainframes (the "mainframe software tools markets").

32. The first relevant mainframe software tools market includes software that can be used for reviewing, finding, editing and manipulating databases and data files for use on mainframe computers. This is called the file and data management tools market.

33. The remaining mainframe software tools markets are comprised of software products sold to mainframe users to help them analyze their computer problems, design and develop their application development software, and test that software. These markets are as follows:

a. Debugging tools for use on mainframe computers. These products provide automated functions which allow a software developer to more efficiently find and correct problems in the program that he or she is creating.

b. Fault diagnosis tools for use on mainframe computers. These products help mainframe computer users deal with problems that may stop the program from running, often referred to as "abends", "dumps" or "crashes". Fault diagnosis tools identify the location in the program where the fault occurred, and provide diagnoses regarding the source of the problem.

34. Each of the categories of mainframe software tools (file and data management tools, debugging tools, and fault management tools) is a relevant market because each tool performs unique and important functions on an automated basis for customers utilizing mainframe computers. No other products can perform these functions effectively, and small but significant changes in the prices of these products would not cause significant numbers of customers to shift to other products. Nor would producers of other software products develop and sell products in one of the mainframe software tools markets in response to a small but significant change in price. As a result, most users of IBM mainframes purchase products in each of these mainframe software tools markets.

Geographic Market

35. The relevant geographic market in which all the foregoing products compete is worldwide.

Compuwares Mainframe Software Tools

36. Compuware develops, markets and supports an integrated line of computer software products and professional services designed to improve the productivity of information technology departments of businesses worldwide. Among other products, Compuware offers testing and implementation software products that focus on improving the productivity of programmers and analysts in application testing, test data preparation, error analysis and maintenance of systems running on IBM and IBM-compatible mainframes. The Compuware software product families and associated user manuals pertinent to this action (which are sold in the mainframe software tools markets) are as follows (hereinafter collectively referred to as "mainframe software tools"):

37. File and Data Management Products. Compuware's File-AID® family of file and data management products gives programmers immediate and direct access to the data needed for test and production work. File-AID products provide for quick, straightforward creation of test data, the automated movement and conversion of large volumes of data between platforms, and a controlled method of examining and correcting production data. These products function across all the principal data access methods and database management systems employed on IBM and IBM-compatible mainframe computers, including VSAM, ISAM, sequential files, IMS and DB2.

Fault Diagnosis Products. Compuware's Abend-AID family of fault diagnosis products comprise automatically invoked, knowledge-based systems that intercept system error messages from the abnormal end ("abend") of live program executions, pinpoint the location and cause of the failure, and recommend corrective action. By using these tools, programmers reduce the time required to analyze failures and increase the accuracy of analysis. Compuware offers fault diagnosis tools for both batch processing and on line environments and for the IMS, IDMS and DB2 database management systems.

Interactive Analysis and Debugging Products. Interactive debugging products enable programmers and analysts to identify and resolve errors in complex software efficiently and accurately. These products enable a programmer at a terminal using either test or production data to step through the program being debugged one statement or statement group at a time. When an error is detected, the products permit immediate correction of both program logic and data, which can then be followed by further step by step testing and debugging until the program is error free. Compuware's Xpediter family of interactive debugging products supports both batch processing and on line environments and is linked with certain of Compuware's fault diagnosis and file and data management tools to provide a comprehensive debugging environment.

Compuware's Proprietary Rights

38. Compuware's mainframe software tools contain a substantial amount of material that is wholly original to Compuware and its predecessors in interest and is copyrightable subject matter under the laws of the United States. Compuware has complied in all respects with the Copyright Act of 1976, 17 U.S.C. § 101, et seq. and all other laws governing copyright. Compuware is, and at all relevant times has been, the owner of the copyrights in its mainframe software tools, and holds, inter alia, the following certificates of registration granted by the Copyright Office.

Registration Date Title

TX-2-975-052 10/23/90 CICS Abend-AID for Release 4.1. TX-3-461-937 02/02/93 Abend-AID, release 6.03 TX-3-461-938 02/02/93 CICS Abend-AID, release 5.2.0 TX-3-461-941 02/02/93 File-AID, release 6.5 TX-4-074-987 06/17/95 File-MD, release 8.0. TX-4-075-254 07/17/95 Abend-AID, release 8.1. TX-4-075-340 07/17/95 File-AID/related data XPERT. TX-4-096-647 07/17/95 Abend-AID, MVS version. TX-4-164-219 07/17/95 Abend-AID MVS version : release 8.0. TX-4-057-617 07/31/95 File-MD for DB2, release 3.5. TX-4-057-618 07/31/95 CICS Abend-AIDIFX, release 1.1. TX-4-057-500 08/05/95 File-AID for IMS, release 4.0. TX-4-119-481 08/21/95 File-AID/PC. TX-4-119-616 08/21/95 Abend-AID for VSE/ESA, release 12. TX-4-140-901 08/21/95 File-AID-FSP/XSP version, release 6.5. TX-4-166-289 08/21/95 CICS Abend-AID for VSE : release 4.1. TX-4-701-143 12/22/97 File-MD/CS 01.04. TX-4-861-035 04/20/99 File-AID/Data Ager, a powerful and precise way to age data for the year 2000, release 2.0. TX-5-106-709 12/06/99 File-AID/CS 2.01.04. TX-5-106-710 12/06/99 File-AID for IMS, version 5.0.0. TX-5-106-711 12/06/99 File-AID/Related Data XPERT 2.1. TX-5-106-712 12/06/99 Abend-AID for VSE, release 2.2. TX-5-106-713 12/06/99 CICS Abend-AID/FX 4.2. TX-5-106-717 12/06/99 File-AID Data Solutions, release 3.0. TX-5-106-719 12/06/99 File-AID for DB2 4.1. TX-5-233-159 07/03/00 Compuware Shared Services, distributed viewing support for Abend-AID for MVS/XLS. TX-5-253-530 08/03/00 CICS ABEND-AID for VSE. TXu-623-679 10/06/00 Abend-Aid 9.0A. TX-5-324-815 05/14/01 File-AID/Express, release 2.6.

True and correct copies of these certificates are attached hereto as Exhibits 1-29.

39. Since Compuware's mainframe software tools were developed, Compuware has placed a copyright notice on all copies of its mainframe software tools that it has produced or licensed. My copies of the mainframe software tools produced or licensed by Compuware, or under its authority, have been produced and licensed in strict conformity with the provisions of the Copyright Act of 1976, 17 U.S.C. § 101, et seq. and all other laws governing copyright.

40. Since the development of its mainframe software tools, Compuware has been and still is the sole proprietor of all of its rights, title and interest in and to the copyrights in its mainframe software tools.

41. Compuware regards its mainframe software tools, and the source code of those tools, as proprietary trade secrets and confidential information, and Compuware takes reasonable measures to maintain their secrecy. Compuware relies on a combination of trade secret, patent, copyright and trademark laws, together with its license agreements with customers, internal security systems, confidentiality procedures and employee agreements to maintain its products as proprietary. Compuware typically provides its products to users under nonexclusive, nontransferable, perpetual licenses. Under the general terms and conditions of its standard product license agreement, the licensed software may be used solely for the licensee's own internal operations on designated computers at specific sites. In addition, to prevent misappropriation of Compuware's trade secrets, these license agreements expressly provide that the customer may not sublicense, sell, rent, disclose, make available, or otherwise communicate Compuware's mainframe software tools to any other person, and that the customers may not disassemble, decompile or reverse engineer Compuware's mainframe software tools.

42. Since Compuware's mainframe software tools were originally developed, Compuware has expended substantial resources on research and development in order to improve and update its mainframe software tools. Compuware's mainframe software tools are consistently the most innovative products in the markets in which they compete, and Compuware has been the leader in product innovation in these markets.

43. The mainframe software tools that are the subject of this litigation presently account for a substantial amount of Compuware's total revenues. In addition, Compuware's mainframe software tools, and their underlying source code, derive independent economic value, actual and potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who could obtain economic value front their disclosure or use.

Full Service Outsourcing Market

44. Another relevant market in this case consists of full service outsourcing of high volume mainframe computer functions. This market involves the performance of the full range of computer programming and software and hardware operations and maintenance services for companies operating high volume mainframes, including the selection of computer hardware and software. When a customer contracts for full service outsourcing, it generally "turns over" its entire mainframe (and often other) computer operations to the outsourcing firm, which often hires many of the customer's computer personnel. Many firms have sought full service outsourcing of their computer functions in order to gain the benefits, expertise and cost savings from the specialized firms that perform these functions.

45. While outsourcing is also provided for specific projects or functions, the businesses that purchase full service outsourcing do so because such outsourcing fits their overall information technology and human resources plans. A small but significant change in the price of full service outsourcing as compared to other outsourcing functions would not cause a substantial number of firms to shift from full service outsourcing.

46. There are significant barriers to entry into the full service outsourcing market. Full service outsourcing requires that the provider thereof possess very substantial resources and personnel with a wide range of software and hardware skills. Very few firms have the size and range of personnel with the requisite skills to perform these functions. Additionally, in order to compete successfully in this market, a firm needs a well-established track record reflecting successful outsourcing of a full range of software functions. This is necessary because businesses would not trust their entire information technology departments to firms that could not clearly demonstrate the high quality of their services.

47. A division of IBM called IBM Global Services is the leader in this market, with a share in excess of 30%. Because of IBM's very substantial resources, and because it provides the hardware, operating systems, software and other basic software for the vast majority of businesses using mainframes, it is uniquely positioned to provide full service outsourcing services.

IBM's Anticompetitive Scheme

48. Until 1999, IBM did not substantially compete with Compuware in any of the mainframe software tools markets. Commencing in at least 1999, IBM developed and carried out a scheme specifically intended to compete unfairly in each of these markets, and to utilize its monopoly power in the mainframe, operating system and other markets described above to gain an unfair competitive advantage and, ultimately, monopoly power in each of the three mainframe software tools markets as described above.

49. Pursuant to this scheme, IBM undertook to develop a set of mainframe tools to compete with Compuware and others. IBM's purported strategy was to develop this set of tools to drastically lower the costs to its customers who paid licensing and maintenance fees to third party vendors. In fact, IBM's actual strategy was to create further dependence by its customers on the IBM line of products, thereby unlawfully extending IBM's already formidable monopolies.

50. Because IBM had developed no commercially viable tools of its own and needed to develop competitive tools quickly, Compuware is informed and believes that IBM embarked on a strategy of using third party developers to assist it. Compuware is informed and believes and on this basis alleges that in early 2000, to reduce the time to market IBM and its third-party vendors elected simply to copy, among other things, portions of Compuware' s source code for its File-AID IMS product and to copy and paraphrase large passages of Compuware's user documentation. Said code and documentation were subject to protection of the copyright and trade secret laws and nondisclosure agreements Compuware had with IBM, Compuware's customers and Compuware's employees.

51. In furtherance of this scheme, in approximately August 2000, IBM began marketing two new mainframe software products: File Manager and Fault Analyzer. IBM markets File Manager in competition with and as the functional equivalent to Compuware's product, File-AID. IBM markets Fault Analyzer in competition with and as the functional equivalent of Compuware's product Abend-AID.

IBM's Illegal Tying, Monopoly Leveraging and Attempted Monopolization of the Mainframe Software Tools Market

52. To further its scheme to monopolize the mainframe software tools market and to destroy competition, IBM engaged in a series of acts designed to gain monopoly power in the mainframe software tools markets. This scheme was accomplished by using the copied Compuware technology and by using IBM's monopoly power in the above-described markets as alleged below.

Denial of Information

53. One significant part of IBM's anticompetitive scheme involves the denial to Compuware of significant technical information relating to IBM's operating systems, utilities software, DB2 and CICS (referred to collectively as the "critical software"). As described in more derail below, because the mainframe software tools are intended to aid businesses to more effectively write programs and operate their computer systems in connection with IBM's critical software, it is important for Compuware and other ISVs to timely obtain detailed technical information about the IBM software in order to provide the most innovative and effective products to their customers. Since the availability of effective mainframe software tools enhances customers' ability to use IBM's hardware and software, IBM has historically provided such information to Compuware and other ISVs. The free flow of this information benefits IBM's and Compuware's common customers and therefore benefits both IBM and Compuware. However, as part of its scheme to harm competition in mainframe software tools, IBM has recently used its power over its hardware and critical software products to choke off this flow of information. These actions have harmed both Compuware and other ISVs and their customers.

54. Because the mainframe software tools, like many application development software products, are designed to work with IBM's critical software, including IBM releases of COBOL, PL/I, C/C++, DB2 and CICS, developers of such software tools need to obtain prerelease access to information concerning changes in this software so that they can promptly and effectively update their products to make them work on the most current versions of these IBM products. This benefits the customers of both IBM and Compuware and other ISVs, since these customers need software tools that work effectively with IBM's hardware and software. IBM routinely provides such information to "beta" (advance trial) users of this product. It is also important to software tools developers that IBM work with them to answer their questions concerning IBM's critical software and work with them to avoid incompatibility problems between such software tools and IBM's critical software.

55. Providing such information and cooperation is equally in IBM's interest, since the overall attractiveness of IBM's products is enhanced by the ability of IBM's customers to effectively utilize their application software with these products. Moreover, the prompt availability of mainframe software tools and other application software that work with new releases of IBM products will make it more attractive for customers to quickly switch to the latest releases of IBM's software. IBM's recognition of these facts is demonstrated by IBM's promotional materials on its web site, which emphasize that more than 1, 500 ISVs provide application software to be used with the IBM S/390 platform. The web site also seeks to promote IBM's new z series by listing the ISVs that "have indicated to IBM that their product line will support" that architecture. Compuware is one of the listed ISVs. IBM states on its web site that it "relies heavily on ISVs . . . to build the . . . applications that give the z series and S/390 platforms full value to your enterprise."

56. For these reasons, since at least the mid 1980s, IBM has regularly shared information about its operating system, critical software and other key software such as DB2 and CICS, with Compuware and other ISVs. Such information has often been provided as much as two years in advance of the availability of these products to the general public, so that at the time the IBM products are made available to the general public, or as soon thereafter as possible, companies like Compuware can offer updated versions of their mainframe software tools and other products that work with these new products. IBM has also historically cooperated with Compuware in improving IBM's software to permit greater ease of use of the mainframe software tools with IBM products.

57. In fact, on a regular basis, IBM and Compuware have signed confidentiality agreements designed to facilitate such transmissions of information by assuring the nondisclosure by Compuware of such information. These agreements specifically contemplate that the parties would provide each other with information on products that were not generally available. Other ISVs have signed similar form agreements with IBM.

58. However, as part of its anticompetitive scheme, IBM has changed its long-held practices, and has begun to (i) refuse to provide Compuware and other sellers of mainframe software tools access to such IBM information, and (ii) refuse to cooperate generally with Compuware and other sellers of mainframe software tools. Such actions have been taken for the express purpose, and with the effect, of restricting competition in mainframe software tools. Examples of these actions include the following:

(a) An e-mail from IBM stated that "due to increasingly competitive relationship with Compuware we cannot give you a beta version [of IBM COBOL Release]. FYI: We just shipped 'Fault Analyzer for OS/390' and 'File Manager for OS/390,' direct competitors with Abend-Aid and File-Aid. We are working feverishly to make our Debug Tool better than Xpediter. Therefore, shipping a beta to you would be seen as helping the enemy, however untrue that may be."

(b) IBM personnel told a German customer that IBM would not share relevant release data with Compuware and other ISVs concerning the next major DB2 release. The IBM employee stated that its action would disable Compuware from delivering a proper product.

(c) An IBM program director told a Compuware staff person that IBM would not share support information on certain COBOL files because the same IBM lab put out Fault Analyzer and Fault Manager and this would make Compuware products more competitive.

(d) IBM refused to provide Compuware with the names of "beta" customers who utilize Compuware took, which would help Compuware to meet their support needs on a timely basis. IBM has historically provided such information to Compuware.

(e) IBM personnel have refused to respond to Compuware's requests for information regarding inconsistencies between IBM's public documentation and actual product performance.

(f) In some instances, Compuware personnel have not ken permitted to obtain information relating to new IBM releases without payment of very substantial sums ($100,000 and $750,000 on two occasions), even though the same kinds of information had previously been provided free or at a much lower charge.

(g) Other information has been provided by IBM, but after delays of as long as three years.

59. IBM has also made changes in CICS and DB2 which make it more difficult for Compuware's mainframe software tools to work effectively in those environments. When Compuware brought this to IBM's attention, IBM refused to make any revisions to avoid these problems.

60. But for IBM's anticompetitive scheme, it would have continued to provide the foregoing information to Compuware and would have continued to cooperate with Compuware in the development of its software.

61. As stated above, IBM is the sole source of such information and its refusal to provide such information is done solely for the purpose of strengthening IBM's monopoly. IBM's actions described above have caused Compuware significant expense. They have also interfered with Compuware offering, and in some cases prevented or delayed Compuware from offering, certain desirable and innovative functions and features with its products. These actions have harmed purchasers of mainframe software tools and competition for mainframe software tools.

62. If such conduct is not enjoined, IBM will continue to deny such competitively significant information to Compuware and other sellers of mainframe software tools.

Unlawful Tying

63. As part of its anticompetitive scheme, IBM has also tied certain sales of its critical software, including software and compilers for COBOL, C/C++ and PL/I, with its sales of Debug Tool. Debug Tool is provided with compilers included in many software releases of these products, and therefore any customer purchasing one of the foregoing releases is forced to purchase and install Debug Tool. Since many users of the mainframe software tools purchase one or more of these releases from IBM, IBM's unlawful tying has forced the purchase of Debug Tool by many purchasers in the relevant debugging market

64. IBM provides Debug Tool with its compilers despite the fact that Debug Tool performs a separate debugging function, and is separately marketed by IBM as involving "advanced facilities for debugging and testing applications." In March 2001, IBM released a more than 400 page Users Guide to Debug Tool. In fact, IBM consistently informs customers that Debug Tool is an alternative to debuggers provided by ISVs such as Compuware. Thus, customer demand for Debug Tool is distinct from demand for the products to which it is tied. Customers make separate decisions as to whether to use Debug Tool (as compared to other debugging products, such as Compuware's Xpediter) even though they routinely use the compilers to which it is tied. Moreover, the fact that Compuware and other firms sell debugging tools as stand-alone products means that there is sufficient distinct demand to efficiently sell these products separately.

65. IBM has also begun tying its critical software to others of its mainframe software tools, including IBM's File Manager and Fault Analyzer products. This is true despite the fact that Fault Analyzer and File Manager are each marketed as distinct products to customers, in each case to fulfill the specific needs of these customers. Thus, customers have distinct demands for each of File Manager and Fault Analyzer.

66. If not enjoined, IBM's tying threatens to foreclose competition in a substantial amount of commerce, both absolutely and as a proportion of the mainframe software tool markets. This tying will cause many customers to receive one or more of IBM's mainframe software tools despite the fact that in a free competitive market they would have chosen to license Compuware's higher quality products or, in some cases, the products of other ISVs. This will substantially harm competition in each of the mainframe software tool markets.

Steering By IBM Global Services

67. As more fully explained below, IBM's anticompetitive scheme has also involved efforts by IBM Global Services to steer the purchase decisions of its clients away from the mainframe software tools of Compuware and other ISVs to the products of IBM. The thousands of businesses that utilize IBM Global Services to operate their information technology functions rely on IBM to make objective decisions on their behalf regarding the purchase of computer hardware and software. Instead, IBM Global Services has begun a practice of purchasing IBM's products over Compuware's higher quality products even though this threatens to interfere with the efficient operation of its customers' mainframe computer functions.

68. IBM Global Services provides software consulting services that include the operation of large companies' computer systems and the development of new software applications. In many cases, IBM Global Services will take over a large corporation's entire information technology department and staff and operate it.

69. IBM states on its web site that IBM Global Services "is the world's largest information technology services provider, with nearly 150, 000 professionals serving customers in 160 countries and annual revenue of more than $33 billion (2000)." A substantial portion of the users of the mainframe software tools are clients of IBM Global Services.

70. IBM Global Services offers its customers "total systems management" For example, as IBM explains on its web site, it will "assist [customers] to define your long term IT systems management strategy, design administrative processes, select tools to manage your systems and create an organizational structure that enables continuous evaluation of systems performance against dynamic e business needs."

71. IBM Global Services promises to take these steps on behalf of its customers, and in their interests. IBM states on its web site that "IBM becomes the customer's IT partner, providing an accountable, single point of contact for its defined IT services. . . ." IBM promises that it will select the optimal software tools for its customers, stating that "[y]ou can count on the people of IBM Global Services to help successfully manage your IT investment to deliver optimal performance and business value."

72. Since IBM has begun to offer Fault Analyzer, File Manager and an enhanced version of Debug Tool, IBM Global Services has begun to steer its customers away from competing products in the mainframe software tools markets and to IBM's products without a fair assessment of the relative quality and price of these alternatives. One IBM Global Services representative told a Compuware employee that "we are an IBM shop. It would be silly to look anywhere else" for the mainframe software tools. Compuware personnel have been informed that IBM Global Services would cause its clients to use IBM tools whenever possible. Since in most cases IBM Global Services completely operates its clients' computer departments, this steering can often be accomplished even without any significant involvement in the decision by IBM's client In other cases, IBM has told its clients that it would charge them an additional fee if they wished to purchase Compuware's mainframe software tools.

73. IBM Global Services has taken these actions despite its realization that Compuware's mainframe software tools, among others, are clearly superior to IBM's products. In fact, IBM Global Services is a very large user of Compuware's mainframe software tools. Its actions have therefore foreclosed competition in the relevant markets.

74. Such actions by IBM Global Services are unethical and improper, and violate its obligations to its clients, because, among other reasons, they do not provide optimal performance and business value, do not reflect the fulfillment of IBM's obligations as a "partner" of its clients and are not in the best interests of those clients. These actions threaten to interfere with Compuware s reasonable expectancy of an opportunity to sell its mainframe software tools to the clients of IBM Global Services. Moreover, they threaten to interfere with Compuware's existing relationships with users of its mainframe software tools, since IBM's actions threaten to terminate such relationships, including existing software maintenance contracts between Compuware and many clients of IBM Global Services.

Pressure on ISVs

75. IBM has taken other actions as well to interfere with the competitive activities of Compuware and other ISVs operating in the mainframe software tools markets. One ISV not operating in these markets was told by IBM personnel that if it did business with Compuware, "count us out."

Continuing Conduct

76. IBM's activities pursuant to its anticompetitive scheme are increasing in frequency and intensity. While these actions have already caused substantial anticompetitive harm, if they are not enjoined, they will cause substantially greater harm in the future.

Specific Intent

77. IBM is taking all the foregoing actions in order to attain monopoly power in the mainframe software tools markets.

Competitive Effects

78. IBM's continuing actions, if not enjoined, threaten to cause, among others, the following effects:

(a) Customers' freedom of choice among mainframe software tools will be prevented and stymied;

(b) Competition from ISVs providing mainframe software tools will be substantially injured, reduced and foreclosed and product innovation will be suppressed;

(c) Compuware and other ISVs will suffer significant injury through lost sales and grester expenses;

(d) The quality and effectiveness of mainframe software tools provided by ISVs will be compromised by IBM's refusal to provide relevant information to the ISVs;

(e) These same factors will substantially increase barriers to entry into mainframe software tool markets, so that the barriers will significantly obstruct entry into these markets, since:

(i) Aspiring new entrants will find it far more difficult to obtain information on the IBM software with which the mainframe software tools must interact, and

(ii) New products cannot effectively compete if IBM ties the sales of its mainframe software tools to the sales of its hardware, operating systems, compilers and other basic software, and if IBM Global Services controls the selection of the mainframe software tools at its customers' locations; and

(f) IBM will gain the ability to foreclose and exclude competition in the full service outsourcing market. Currently, Compuware's mainframe software tools are used successfully by some of IBM's most significant competitors in the full service outsourcing market. If IBM is successful in establishing the dominance of its own mainframe software tools, and then refuses to provide these tools to its full service outsourcing competitors, this will substantially reduce competition in the full service outsourcing market

79. If IBM's conduct is not enjoined, there is a dangerous probability that IBM will attain monopoly power in each of the mainframe software tools markets. Many purchasers in the relevant debugging market are forced to purchase and install DeBug Tool as a result of IBM's unlawful tying, and IBM is able to similarly force the purchase of File Manager and Fault Analyzer by virtually every purchaser in the mainframe software tools markets, since virtually all of these purchasers need IBM's critical software. The widespread use of IBM Global Services by firms which also use the mainframe software tools, the fact that all mainframe software tools must use a wide range of IBM hardware and software, and the fact that IBM sells far more software for use on mainframe computers to every purchaser of any of the mainframe software tools than do any ISVs providing those tools, provide IBM with an opportunity to exclude competition and control price in each of the mainframe software tools markets.

80. Such actions threaten to cause substantial harm to Compuware. This harm is occurring, and, if not enjoined will continue to occur, only because of IBM's anticompetitive actions described above. None of this harm or threatened harm can be attributed to any other actions of IBM, because IBM would not have taken the foregoing actions (and would not in the future take such actions) absent IBM's anticompetitive scheme.

FIRST CLAIM FOR RELIEF Direct and Contributory Copyright Infringement ( 17 U.S.C. § 101 et seq.)

81. Compuware realleges and incorporates by reference paragraphs 1 through 80 as if fully set forth herein.

82. Compuware is informed and believes and based thereon alleges that IBM released version 2.0 of its File Manager IMS program in or around August of 2001. Compuware is further informed and believes and based thereon alleges that IBM released version 2.0 of its Fault Analyzer program in or around May, 2001. Both File Manager 2.0 and Fault Analyzer are mainframe software tools for, inter alia, IBM's IMS operating system extension.

83. Compuware is informed and believes and based thereon alleges that prior to IBM's release of File Manager 2.0 and Fault Analyzer, IBM gained access to and acquired a copy of Compuware's File-AID and Abend-AID products and underlying source code so that it could unlawfully use, reverse engineer and copy Compuware's software products in order to develop and improve its competing File Manager and Fault Analyzer software products.

84. Compuware is informed and believes and based thereon alleges that IBM knowingly and willfully copied both the object code and source code of Compuware's mainframe software tools, namely, the File-AID and Abend-AID IMS computer programs in order to develop IBM's new product line. IBM's File Manager program includes several modules that appear to have been literally copied from Compuware's source code or are substantially similar thereto. Further, the security exit scheme that is unique to File-AID is substantially similar in the IBM product. In addition, there are restrictions, limitations and bugs in IBM's File Manager program that are strongly indicative of copying of source code for Compuware's File-AID IMS program. Further, both IBM's File Manager and Compuware's File-AID allocate IMS datasets in virtually the same way, even though the approach taken by Compuware is arbitrary and not standard in the industry. The hierarchical commands in IBM's File Manager program, including the use of particular screens, are substantially similar to those commands in Compuware's File-AID. Finally, there are numerous passages in the IBM File Manager user manual that are nearly verbatim copies of Compuware's File-AID IMS manual and where IBM uses terminology that is unique to Compuware. Compuware is also informed and believes that several modules of IBM's Fault Analyzer program also appear to have been literally copied from Compuware's products or are substantially similar.

85. Compuware is informed and believes and based thereon alleges that by copying Compuware's mainframe software tools, IBM has developed, or is in the process of developing, one or more products, namely File Manager and Fault Analyzer, or portions thereof which are identical or substantially similar to many portions of Compuware's mainframe software tools, namely File-AID and Abend-AID, in their underlying logic, structure, organization and sequence, as well as in various other respects.

86. Compuware is informed and believes and based thereon alleges that by copying Compuware's mainframe software tools, IBM has incorporated, or is in the process of incorporating into its existing products, programs, or portions thereof, that are identical or substantially similar to many portions of Compuware's mainframe software tools in their underlying logic, structure, organization and sequence, as well as in various other respects. The natural, probable and foreseeable result of the aforesaid conduct of IBM has been and will continue to be to deprive Compuware of business and the licensing of its mainframe software tools, to deprive Compuware of goodwill, to injure Compuware's relations with prospective customers, and to impose substantial expenses on Compuware to counteract the aforesaid conduct.

87. Compuware is informed and believes and based thereon alleges that it has lost or will lose license revenues for its mainframe software tools, and has sustained and will sustain damages as a result of IBM's wrongful conduct and its marketing of any infringing products. IBM's aforesaid wrongful conduct has also deprived and will continue to deprive Compuware of opportunities for expanding its goodwill.

88. Compuware is informed and believes and based thereon alleges that because IBM has not incurred the substantial research and development costs and other overhead expenses associated with developing and improving Compuware's mainframe software tools, IBM will be able to market and has marketed its infringing products at lower license fees than those Compuware must charge for its mainframe software tools. As a result, the marketing of any infringing products has and will continue artificially to erode the price the customers will be willing to pay for Compuware's mainframe software tools.

89. Defendant IBM had been unjustly enriched by its copying, use and marketing of Compuware's mainframe software tools and works derived therefrom.

90. By means of the actions complained of herein, IBM has directly infringed and, unless restrained by court order, will continue to infringe Compuware's copyrights in and relating to its mainframe software tools (including object, source and executable code), by reproducing, distributing, and placing upon the market products or portions thereof which were copied from Compuware's copyrighted mainframe software tools and preparing derivative works based thereon.

91. Compuware is informed and believes and based thereon alleges that IBM has contributorily infringed and induced infringement of and will continue to contributorily infringe and induce infringement of Compuware's copyrights in its mainframe software tools by knowingly inducing, causing and materially contributing to the infringement of Compuware's exclusive rights by others — namely, users of IBM's computer mainframe software tools, and inducing infringement by third parties.

92. By its actions alleged above, IBM has infringed and will continue to infringe Compuware's copyrights in its mainframe software tools by copying and using them without Compuware's authorization in violation of 17 U.S.C. § 101, et seq.

93. Upon information and belief, IBM's infringing acts have been willful and deliberate, and in utter disregard for Compuware's rights.

94. Compuware is informed and believes and based thereon alleges that unless enjoined by this Court, IBM intends to continue its course of conduct, and to wrongfully use, infringe upon, sell, license, and otherwise profit from Compuware's mainframe software tools and works derived therefrom. As a direct and proximate result of the acts of IBM alleged above, Compuware has already suffered irreparable damage and has sustained lost profits. Compuware has no adequate remedy at law to redress all of the injuries IBM has caused and intends to cause by its conduct. Compuware will continue to suffer irreparable damage and to sustain lost profits until IBM's actions alleged above are enjoined by this Court.

95. In addition, as a result of IBM's actions, Compuware has suffered and will continue to suffer damages in an amount to be determined at trial.

SECOND CLAIM FOR RELIEF Misappropriation of Trade Secrets (Michigan Uniform Trade Secrets Act, M.C.L.A. § 445. 1901 et seq.)

96. Compuware realleges and incorporates by reference paragraphs 1 through 95 as if fully set forth herein.

97. Because Compuware's mainframe software tools and underlying source code contain information that is not generally known to the public or to other persons who can obtain economic value from its disclosure or use, it is the subject of efforts by Compuware to maintain its secrecy, and derives independent economic value from not being generally known, such information constitutes "trade secrets" under Michigan Complied Laws, § 445.1901 et seq.

98. Compuware is informed and believes and based thereon alleges that IBM misappropriated Compuware's trade secrets in its mainframe software tools by acquiring knowledge of those trade secrets when it knew or should have known that the trade secrets had been acquired by improper means, by an individual or entity who had utilized improper means to acquire them, had acquired them under circumstance giving rise to a duty to maintain its secrecy or limit its use, and/or were derived from or through a person who owed a duty to Compuware to maintain the secrecy of its trade secrets or to limit their use, and by disclosing or using Compuware's trade secrets without its express or implied consent. Said trade secrets include, but are not limited to, the source code and all portions thereof, and all other information, including formulas, patterns, compilations, programs, devices, methods, techniques, manuals and processes related to Compuware's mainframe software tools, excepting only any information explicitly disclosed in Compuware's public marketing materials for such products.

99. By reason of the foregoing acts and conduct of IBM, Compuware will suffer great and irreparable harm and damage, which damage will be difficult to ascertain, and Compuware will be without an adequate remedy at law, including loss of customers, dilution of goodwill, confusion of potential customers, injury to its reputations, and diminution in value of its confidential information and other proprietary data.

100. Compuware is entitled to an injunction restraining IBM, its officers, agents, employees, and all persons acting in concert with them, from engaging in further such unlawful acts and from reaping any additional commercial advantage from its misappropriation of Compuware's trade secrets.

101. Compuware is further entitled to recover from IBM the damages sustained by it as a result of IBM's wrongful acts as hereinabove alleged. The amount of damages cannot be determined at this time.

102. Compuware is further entitled to recover from IBM the gains, profits, advantages, and unjust enrichment it has obtained as a result of its wrongful acts as hereinabove alleged.

103. IBM's acts of misappropriation were both willful and malicious, and therefore Compuware is entitled to an award of exemplary damages and attorney's fees.

THIRD CLAIM FOR RELIEF Intentional Interference with Contractual Relations

104. Compuware realleges and incorporates by reference paragraphs 1 through 80 as if fully set forth herein.

105. In order to maintain the secrecy of its confidential information, including the secrecy of the source code to its mainframe software tools, Compuware enters into written confidentiality agreements with each of its employees, prohibiting its employees from disclosing Compuware's trade secrets to third parties. Such confidentiality agreements constitute valid and enforceable contracts and remain binding on the employee even after the employee has terminated his or her employment with Compuware.

106. IBM knew or should have known of the existence of Compuware's confidentiality agreements with its employees.

107. IBM wrongfully, intentionally, and without justification caused and persuaded one or more of Compuware's employees or former employees to breach their confidentiality agreements with Compuware by causing the employee(s) or former employee(s) to breach his or her confidentiality agreement with Compuware and to reveal to IBM Compuware's source code to its mainframe software tools.

108. By reason of the foregoing acts and conduct of IBM, Compuware is entitled to recover from IBM the damages sustained by it as a result of IBM's wrongful acts as hereinabove alleged. The amount of damages cannot be determined at this time. Compuware is further entitled to recover from IBM the gains, profits, advantages, and unjust enrichment it has obtained as a result of its wrongful acts as hereinabove alleged.

109. By reason of the foregoing acts and conduct of IBM, IBM is guilty of oppression, fraud or malice, and therefore Compuware is entitled to exemplary damages and attorneys fees against IBM.

FOURTH CLAIM FOR RELIEF Sherman Act, Section 1: Unlawful Tying ( 15 U.S.C. § 1)

110. Compuware realleges and incorporates by reference paragraphs 1 through 80 as if duly set forth herein.

111. Mainframe computers, operating systems and each of the basic software products discussed above (including DB2, CICS and IBM mainframe software releases of COBOL, C/C++ and PL/I) are separate products each facing a distinct demand. IBM has substantial market power in each of the markets for mainframe computers, operating systems and the basic software products. Because of the importance of these products to IBM's customers, IBM has the ability to force them to purchase IBM's mainframe software tools.

112. IBM has tied the purchase of each of its mainframe software tools to the purchase of operating systems and the basic software products, in violation per se of Section 1 of the Sherman Act and in unreasonable restraint of trade. IBM continues to engage in these practices.

113. IBM's tying threatens to substantially foreclose competition in each of the mainframe software tools markets and to significantly harm competition on the merits and interfere with customer choice in each such market. There is a substantial threat that IBM's actions will provide it with market power in each of the mainframe software tools markets.

114. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive three times its actual damages and its costs and attorneys' fees.

FIFTH CLAIM FOR RELIEF

Sherman Act, Section 2: Monopoly Leveraging ( 15 U.S.C. § 2)

115. Compuware restates, and realleges paragraphs 1 through 80 above, as if fully set forth herein,

116. IBM has monopoly power in the markets for mainframe computers, operating systems and the basic software markets described above.

117. By the conduct described above, IBM has used (and if not enjoined will continue to use) its monopoly position in these multiple markets to: amplify its position and gain an unfair competitive advantage for its inferior products in the mainframe software tools markets; distort and foreclose competition in those markets; harm other competitors in those markets, including Compuware; preclude customers in the mainframe software tools markets from making free choices among mainframe software tools; impose additional costs on both. competitors and purchasers of the mainframe software tools; and thereby significantly harm competition in the mainframe software tools markets. None of these actions have been undertaken in order to benefit customers or provide efficiencies, and none have had that effect. These practices constitute unlawful monopoly leveraging, in violation of Section 2 of the Sherman Act.

118. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive three times its actual damages and its costs and attorneys' fees.

SIXTH CLAIM FOR RELIEF Sherman Act, Section 2: Attempt to Monopolize ( 15 U.S.C. § 2)

119. Compuware restates, and realleges paragraphs 1 through 80 above, as if fully set forth herein.

120. IBM is willfully engaging in a pattern of conduct that threatens competition in the mainframe software tools markets and is exclusionary, with the specific intent of monopolizing the mainframe software tool market. IBM continues to engage in such conduct

121. There is a dangerous probability that IBM, unless it is restrained, will succeed in monopolizing the mainframe software tool markets, in violation of Section 2 of the Sherman Act.

122. Such actions constitute unlawful attempted monopolization.

123. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive three times its actual damages and its costs and attorneys' fees.

SEVENTH CLAIM FOR RELIEF Tortious Interference with Business Expectancy

124. Compuware restates, and realleges paragraphs 1 through 80 above, as if fully set forth herein.

125. IBM Global Services' steering as described above constitutes a breach of IBM's duty of loyalty and good faith, and its duty to act in the best interest of its clients. IBM has therefore acted improperly and unethically.

126. IBM's anticompetitive conduct described above was malicious, unjustified and improper.

127. By such actions IBM is wrongfully interfering with Compuware's business expectancy and prospective economic relationships. Customers who have used and would otherwise continue to use Compuware's mainframe software tools will be diverted to IBM's products.

128. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive its actual damages and its costs and attorneys' fees.

EIGHTH CLAIM FOR RELIEF

Unfair Competition (California Business Professions Code, § 17200 et seq.)

129. Compuware restates and realleges the allegations in paragraphs 1 through 128 above, as if fully set forth herein.

130. Compuware and IBM have both sold substantial quantities of the mainframe software tools to persons in the State of California. IBM's Santa Teresa California personnel have denied critical information to Compuware as described above. If not enjoined, IBM's practices described above will significantly affect and restrain the sales of the mainframe software tools in California.

131. IBM's practices described above involving or related to (a) IBM's actions in California, (b) California purchasers, or (c) other actions affecting sales in California constitute unlawful and unfair acts and practices and unfair methods of competition in violation of California Business and Professions Code § 17200. The unlawful practices include, without limitation, violations of the Copyright Act, the Sherman Act, theft of trade secrets and tortious interference with business expectancy. Such actions threaten substantial harm to competition, affecting trade and commerce in California.

132. These wrongful acts have proximately caused and will continue to cause Compuware substantial injury, including loss of customers, dilution of goodwill, confusion of potential customers, injury to its reputation, and diminution in value of its confidential information. Such actions are also oppressive and constitute actual or incipient violations of the antitrust laws. These actions will cause imminent and irreparable hann and injury to Compuware, which has thereby has been injured by IBM in its business and property.

133. IBM continues to engage in such practices. If IBM is not enjoined, IBM's actions threaten to substantially injure the public, Compuware, other ISVs, and purchasers of the mainframe software tools. Compuware is without an adequate remedy at law.

134. Compuware is entitled to an injunction restraining IBM, its officer, agents, employees and all persons acting in concert with them from engaging in further unlawful conduct

135. Compuware is further entitled to recover from IBM the gains, profits, advantages, and unjust enrichment it has obtained as a result of its wrongful acts as hereinabove alleged.

136. The conduct of IBM was and is fraudulent, oppressive, malicious and in conscious disregard of the rights of Compuware, and Compuware is therefore entitled to punitive damages against IBM.

NINTH CLAIM FOR RELIEF Unfair Competition (Connecticut Unfair Trade Practices Act, Conn. Cen. Stat. § 42-110b.)

137. Compuware restates and realleges the allegations in paragraphs 1 through 128 above, as if fully set forth herein.

138. Compuware and IBM have engaged in the conduct of trade or commerce in the state of Connecticut through their substantial sales of the mainframe software tools to persons in Connecticut. If not enjoined, IBM's practices described above will significantly affect and restrain sales of the mainframe software tools in Connecticut.

139. Through the acts and practices described above involving or related to Connecticut purchasers or affecting sales in Connecticut, IBM is willfully engaging in unfair methods of competition and unfair acts and practices in the conduct of trade or commerce in violation of Conn. Gen. Stat. § 42-110b. IBM's continuing actions are anticompetitive, unethical and oppressive, and threaten to cause substantial injury to Compuware, other ISVs and purchasers of the mainframe software tools, in actual or incipient violation of the antitrust laws.

140. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive actual and punitive damages and its costs and attorneys' fees.

TENTH CLAIM FOR RELIEF Unfair Competition (Nebraska Consumer Protection Act, Neb. Rev. Stat. § 59-1602)

141. Compuware restates and realleges the allegations in paragraphs 1 through 128 above, as if fully set forth herein.

142. Compuware and IBM have engaged in the conduct of trade or commerce in the state of Nebraska through their substantial sales of the mainframe software tools to persons in Nebraska. If not enjoined, IBM's practices described above will significantly affect and restrain sales of the mainframe software tools in Nebraska.

143. IBM's practices described above involving or related to Nebraska purchasers or affecting sales in Nebraska are unfair acts and practices and unfair methods of competition in violation of Neb. Rev. Stat. § 59-1602. Such actions threaten competition, affecting trade and commerce in Nebraska, and constitute actual or incipient violations of the antitrust laws. Such actions are anticompetitive and are not reasonable business practices.

144. These continuing practices threaten to substantially injure the public, Compuware, other ISVs and purchasers of the mainframe software tools.

145. Compuware has been injured by IBM thereby in its business and property.

146. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive its actual damages and its costs and attorneys' fees.

ELEVENTH CLAIM FOR RELIEF Unfair Competition (North Carolina Unfair Methods of Competition, N.C. Gen. Stat § 75-1.1)

147. Compuware restates and realleges the allegations in paragraphs 1 through 128 above, as if fully set forth herein.

148. Compuware and IBM have both sold substantial quantities of the mainframe software tools to persons in the State of North Carolina. If not enjoined, IBM's practices described above will significantly affect and restrain the sales of mainframe software tools in North Carolina.

149. IBM's practices described above involving or related to purchasers in North Carolina or affecting such sales in North Carolina constitute unfair methods of competition in violation of N.C. Gen. Stat. § 75-1.1. These continuing practices are anticompetitive, unethical and oppressive, actual or incipient violations of the antitrust laws, involve an inequitable assertion by IBM of its market power and position, and threaten to cause substantial injury to Compuware, ISVs and purchasers of the mainframe software tools.

150. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive three times its actual damages and its costs and attorneys' fees:

TWELFTH CLAIM FOR RELIEF Unfair Competition (South Carolina Unfair Trade Practices Act, S.C. Code Ann. § 39-5-20)

151. Compuware restates and realleges the allegations in paragraphs 1 through 128 above, as if fully set forth herein.

152. Compuware and IBM have both sold substantial quantities of the mainframe software tools to persons in South Carolina. IBM's practices described above will significantly affect and restrain the sales of mainframe software tools in South Carolina.

153. Through the acts and practices described above involving or related to South Carolina purchasers or affecting sales in South Carolina IBM has willfully and knowingly engaged in unfair acts or practices and unfair methods of competition in violation of S.C. Code Ann. § 39-5-20. These continuing practices are anticompetitive, unethical and oppressive, actual or incipient violations of the antitrust laws, and threaten to cause substantial injury to Compuware, ISVs, purchasers of the mainframe software tools and the public interest. Such practices have the potential for repetition.

154. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive three times its actual damages and its costs and attorneys' fees.

THIRTEENTH CLAIM FOR RELIEF Unfair Competition (Tennessee Consumer Protection Act, Ten. Code Ann. § 47-18-104)

155. Compuware restates and realleges the allegations in paragraphs 1 through 128 above, as if fully set forth herein.

156. Compuware and IBM have engaged in the conduct of trade or commerce in the state of Tennessee through their substantial sales of the mainframe software tools to persons in Tennessee. If not enjoined, IBM's practices described above will significantly affect and restrain sales of the mainframe software tools in Tennessee.

157. Through the acts and practices described above involving or related to Tennessee purchasers or affecting sales in Tennessee, IBM has willfully or knowingly engaged in unfair acts and practices in the conduct of trade or commerce in violation of Tenn. Code Ann. § 47-18-104. IBM's continuing actions threaten to cause substantial injury to Compuware, other ISVs and purchasers of the mainframe software tools, in actual or incipient violation of the antitrust laws.

158. If IBM is not restrained from continuing such practices, Compuware will continue to suffer substantial injury.

159. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive treble damages and its costs and attorneys' fees.

FOURTEENTH CLAIM FOR RELIEF Unfair Competition (Utah Unfair Practices Act, Utah Code Ann. § 13-5-2.5)

160. Compuware restates and realleges the allegations in paragraphs 1 through 128 above, as if fully set forth herein.

161. Compuware and IBM have both sold substantial quantities of the mainframe software tools to persons in Utah. If not enjoined, IBM's practices described above will significantly affect and restrain the sales of the mainframe software tools in Utah.

162. IBM's practices described above involving or related to Utah purchasers or affecting sales in Utah are unfair methods of competition in violation of Utah Code Ann. § 13-5-2.5. Such actions threaten competition, affecting trade and commerce in Utah, and constitute actual or incipient violations of the antitrust laws. Such actions are anticompetitive and are not reasonable business practices.

163. These continuing practices threaten to injure the public, Compuware, other ISVs and purchasers of the mainframe software tools.

164. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive treble damages and its costs and attorneys' fees.

FIFTEENTH CLAIM FOR RELIEF Unfair Competition (Washington Unfair Methods of Competition, Wash. Rev. Code 19.86.020)

165. Compuware restates and realleges the allegations in paragraphs 1 through 127 above, as if fully set forth herein.

166. Compuware and IBM have both sold substantial quantities of the mainframe software tools to persons in Washington. If not enjoined, IBM's practices described above will significantly affect and restrain the sales of the mainframe software tools in Washington.

167. IBM's practices described above involving or related to Washington purchasers or affecting sales in Washington are unfair acts and practices and unfair methods of competition in violation of Wash. Rev. Code 19.86.020. Such actions threaten competition, affecting trade and commerce in Washington, and constitute actual or incipient violations of the antitrust laws. Such actions are anticompetitive and are not reasonable business practices.

168. Compuware has thereby been injured by IBM in its business and property.

169. IBM continues to engage in such practices. If IBM is not enjoined, IBM's actions will continue to injure Compuware, other ISVs, purchasers of the mainframe software tools and the public.

170. Compuware prays that IBM's conduct described above be permanently enjoined and that Compuware receive treble damages and its costs and attorneys' fees.

PRAYER FOR RELIEF

Wherefore, Compuware prays for judgment against IBM as follows:

1. That the Court enter judgment in favor of Compuware on all the claims for relief set forth herein, including but not limited to judgments that:

(a) IBM has infringed Compuware's copyrights in its mainframe software tools;

(b) IBM has misappropriated Compuware's trade secrets in its mainframe software tools;

(c) IBM be has intentionally interfered with Compuware's contractual relations by inducing a breach of the confidentiality agreement(s) between Compuware and its employee(s) or former employee(s);

(d) IBM has violated Sections 1 and 2 of Sherman Act;

(e) IBM has tortiously interfered with Compuware's economic expectancy; and that

(f) IBM has committed unlawful, unfair, and fraudulent business practices in violation of the laws of California, Connecticut, Nebraska, North Carolina, South Carolina, Tennessee, Utah and Washington

2. That IBM, its directors, officers, agents, servants, employees, and all other persons in active concert of privity or in participation with them, be enjoined from directly or indirectly infringing Compuware's copyrights in its mainframe software tools or continue to market, offer, sell, dispose of, license, lease, transfer, display, advertise, reproduce, develop or manufacture any works derived or copied from Compuware's mainframe software tools or to participate or assist in any such activity.

3. That IBM, its directors, officers, agents, servants, employees, and all other persons in active concert or privity or in participation with them, be enjoined to return to Compuware any originals, copies, facsimiles or duplicates of Compuware's mainframe software tools in their possession, custody or control.

4. That IBM be enjoined to recall from all distributors, wholesales, jobbers, dealers, retailers, non-Compuware-licensed customers and distributors, and all others known to IBM any originals, copies, facsimiles or duplicates of any works shown by the evidence to infringe any Compuware copyright.

5. That IBM be enjoined to deliver upon oath, to be impounded during the pendancy of this action, and for destruction pursuant to judgment herein, all originals, copies, facsimiles, or duplicates of any works shown by the evidence to infringe any Compuware copyright.

6. That IBM be required to file with the Court and to serve on Compuware within 30 days after service of the Court's order as herein prayed, a report in writing under oath setting forth in detail the manner and form in which IBM complied with the Court's order.

7. That IBM be enjoined from tying the sale of its mainframe software tools with its mainframe operating systems and basic software.

8. That IBM be enjoined from delaying the release of information pertaining to its releases of DB2, CICS, COBOL, PL/I and C/C++ to Compuware and other ISVs.

9. That IBM be enjoined from interfering with Compuware's business expectancy by disparaging or otherwise encouraging or causing its customers not to purchase Compuware's mainframe software tools.

10. That IBM be enjoined from further actions in support of the anticompetitive practices set forth above.

11. That judgment be entered for Compuware against IBM, for Compuware's actuaL damages according to proof, and for any additional profits attributable to infringement of Compuware's copyrights, in accordance with proof.

12. That judgment be entered for Compuware against IBM, for statutory damages based upon IBM's acts of infringement, pursuant to the Copyright Act of 1976, 17 U.S.C. § 101, et seq.

13. That IBM be required to account for all gains, profits, and advantages received from its acts of infringement and for its other violations of law.

14. That all gains, profits, and advantages derived by IBM from its acts of infringement and other violations of law be deemed to be in constructive trust for the benefit of Compuware.

15. That judgment be entered for Compuware and against IBM, trebling the damages awarded.

16. That Compuware be awarded punitive and exemplary damages against IBM.

17. That Compuware have judgment against IBM for its costs and attorneys fees.

18. That the Court grant such other, further, and different relief as the Court deems proper under the circumstances.

JURY DEMAND

Plaintiff Compuware hereby demands a jury trial on its Complaint.