Ncr Corp V Korala

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ALICE M. BATCHELDER, Circuit Judge. Page 807 512 F.3d 807 (6th Cir. 2008) 85 U.S.P.Q.2d 1481 NCR CORPORATION, Plaintiff-Appellant, v. KORALA ASSOCIATES LTD., Defendant-Appellee. No. 06-3685. United States Court of Appeals, Sixth Circuit. Jan. 16, 2008 Argued: Feb. 1, 2007. Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 04-00407-Michael R. Merz, Magistrate Judge. Page 808 [Copyrighted Material Omitted] Page 809 [Copyrighted Material Omitted] Page 810 ARGUED: Paul R. Gupta, Orrick, Herrington & Sutcliffe, New York, New York, for Appellant. Paul M. Fakler, Moses & Singer, New York, New York, for Appellee. ON BRIEF: Paul R. Gupta, Orrick, Herrington & Sutcliffe, New York, New York, John D. Luken, Joshua A. Lorentz, Dinsmore & Shohl, Cincinnati, Ohio, Clifford R. Michel, Mayer Brown, New York, New York, for Appellant. Paul M. Fakler, Moses & Singer, New York, New York, William F. Patry, Thelen, Reid & Priest, New York, New York, for Appellee. Before: KENNEDY, BATCHELDER, and CLAY, Circuit Judges. OPINION Plaintiff NCR Corporation ("NCR") appeals Page 811 the order of the district court[1] compelling NCR and defendant Korala Associates Ltd. ("KAL") to arbitrate NCR's claims against KAL, pursuant to 9 U.S.C. § 206[2] part of Chapter 2 of the Federal Arbitration Act, see 9 U.S.C. § 201, et seq., which implements the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38. I. BACKGROUND NCR is one of the largest providers of Automatic Teller Machines ("ATM") equipment, integrated hardware and software systems, and related maintenance and support services in the world. NCR's ATMs use either the Windows operating system or the OS/2 operating system. NCR installs its APTRA XFS software ("APTRA XFS") on those ATMs using the Windows operating system and its S4i software ("S4i") on those ATMs using the OS/2 operating system. NCR owns a registered copyright for its APTRA XFS software and had applied, on an expedited basis, to register a copyright for APTRA XFS's precursor software. NCR had also applied, on an expedited basis, to register copyrights for two versions of the S4i software. Over 300,000 NCR ATMs are installed world-wide, and at the time NCR filed its Amended Complaint, approximately 150,000 of these ATMs required the installation of an upgraded software system so that the machines would be Triple-DES[3] compliant. NCR has developed a Triple-DES system upgrade to install on its ATMs. KAL, likewise, has developed a Triple-DES system upgrade, which can be installed on NCR ATMs. NCR asserts that KAL could not have developed its NCR-compatible system upgrade without illegally copying and analyzing NCR's APTRA XFS and S4i software. On December 15, 1998, KAL and NCR entered into a Software License Agreement ("1998 Agreement") in which KAL agreed to develop and license to NCR three specific software components for NCR's ATMs - -Device Controls, Self Service Controls, and Service Providers -which together form software known as Kalypso. KAL also agreed to "develop additional elements of Kalypso from time to time" under the terms of the Agreement. In order to facilitate KAL's development of NCR-friendly software, "NCR agreed to loan to KAL certain computer hardware and/or software items that were necessary to enable KAL to adapt and support the Kalypso Components." To that end, NCR loaned to KAL an NCR

ATM which contained NCR's copyrighted APTRA XFS software. In addition to this particular ATM, NCR alleged that KAL obtained and accessed other NCR ATMs on which APTRA XFS or S4i was installed from NCR bank licensees or from dealers of used or refurbished NCR ATMs. Any software still installed on these ATMs could not have been operated without authorization from NCR. NCR alleged that KAL, without permission, "obtained access to, made unauthorized Page 812 use of, and engaged in unauthorized copying" of the APTRA...
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