Printed on: October 31, 2013

BEA's preliminary injunction request against ex-worker denied

By ALEX STUCKEY
astuckey@postregister.com

U.S. District Judge B. Lynn Winmill ruled a former Idaho National Laboratory employee does not have to remove his cybersecurity code from an open source website while a copyright infringement case unfolds.

Winmill on Tuesday denied Battelle Energy Alliance's preliminary injunction request to remove the code. Battelle made the request during an Oct. 23 hearing in Pocatello.

"Battelle has failed to demonstrate that ... it is likely to suffer immediate, irreparable harm" from the code, known as Visdom, remaining online, court documents said.

Battelle, the contractor in charge of INL, argued that this harm would immediately affect BEA, but the code had been online for three months before the contractor filed a complaint, according to court documents.

"Battelle is pleased with the court's thoughtful analysis of the case," the contractor wrote in an email Wednesday.

Battelle filed a complaint earlier this month against Corey Thuen and his company, Southfork Security, citing eight claims, including alleged copyright infringement of a cybersecurity tool developed at INL, unfair competition and trade secret misappropriation.

Battelle claims Visdom is a copy of the INL-developed Sophia situational awareness software. Sophia can observe the network connections of energy facilities, which provide oil, electricity and natural gas for the country, detect unusual activity and alert the operator. Thuen was one of Sophia's developers.

Thuen, however, claims Visdom was created from scratch.

"We think the judge made the right decision about the injunction and we're confident that as the case unfolds we will be found in the right," Thuen said in an email Wednesday.

Based on the evidence provided, Winmill also could not conclude that the release of Visdom threatens national security or that Visdom would hurt Battelle's ability to develop and license Sophia, according to court documents.

Winmill did, however, find a likelihood of success in the contractor's claims regarding breach of contract.

Battelle claims Thuen breached his employment agreement with the lab by creating Visdom in March. Although Thuen took a leave of absence in February, Battelle says Thuen still was employed by the lab because he continued to receive medical benefits and life insurance, according to court documents.

Thuen could have terminated his employment in February, but he did not. As part of his employment agreement, he assigned to BEA "all rights, title and interest" of anything created during his employment "along the lines of or related to the business, work or investigations, of BEA," including "computer programs," according to court documents.

When taking his leave, Thuen also said he would perform a specific outside activity: create a company to commercially license Sophia. However, Southfork withdrew from the competitive bidding process in April and less than a month later began advertising Visdom, according to court documents.

"Given all the evidence, it seems likely that Thuen created Visdom 'during his employment' with Battelle -- even if he was on leave," according to court documents.

In terms of Battelle's copyright infringement claims, Winmill could not determine merit.

"The court cannot tell whether defendants copied Sophia's source code when they created Visdom," according to court documents.

Winmill plans to proceed to trial within six months of Oct. 15, when the complaint was filed.

Idaho National Laboratory reporter Alex Stuckey can be reached at 542-6755.