IBM lost its bid for a preliminary injunction that would stop its ex-M&A chief David Johnson from going to work for Dell.

District Court Judge Stephen Robinson vacated the June 4 order that let Robinson join Dell but basically restricted his activities to just looking around. IBM Friday asked that the order be reinstated until July 1, long enough to get an expedited hearing by the appeals court. The judge has yet to make a ruling.

Flummoxed, IBM tried rushing to the Court of Appeals for the injunction and lost again. The appeals court removed all restrictions.

Robinson found that IBM was unlikely to prove at trial that Johnson's non-compete was a valid contract - thus failing one of the basic tests for an injunction.

In freeing Johnson to work for Dell as senior VP of strategy, the judge said the man would be more damaged if he were sidelined for a year than IBM would be if Johnson went to work for Dell.

IBM claims Johnson knows all of its "strategies, competitive initiatives, product development plans, technological initiatives and marketing strategies and plans" for years to come and is "inevitably" bound to disclose them to Dell.

But the judge dismissed IBM's case of the jitters, saying he also based his decision on the fact that New York "strongly disfavors...non-competition covenants in employment contracts."

According to the ruling, Mr. Johnson, whom the judge called both "too clever by half" and "an extremely credible and reasonable witness," signed a non-compete in 2005 on the line that IBM was supposed to sign. He did it on purpose as a stall while he weighed whether to stay at IBM or not, figuring the way he had signed made the document worthless, a trick the judge said worked.

It seems Johnson had passed on an opportunity to be CEO of a tech company in 2001 based on assurances that he would be considered for a general manager's job inside IBM within two years. It didn't happen.

In 2004 IBM again indicated his next job would be a general manager. Again it didn't materialize.

In 2005 IBM started demanding that its senior executives sign non-competes and made their equity compensation dependent on their signing.

That year Johnson took the job issue to Randy MacDonald, the head of HR. MacDonald told Johnson he would get back to him by the end of June. Meanwhile, June 1 was the deadline for Johnson to sign the non-compete - hence his gambit with the signature.

Then that fall Johnson's boss, IBM CFO Mark Loughridge, told Johnson to forget about being a general manager - that financial guys didn't become general managers at IBM - and denied that Johnson had been promised the job in 2001 and 2004.

Accord to Loughridge, the judge repeated, such "conversations never occurred."

A few months later, IBM, slow on the uptake, started asking Johnson to re-sign the non-compete. He refused to do so.

The fact that IBM chased after Johnson for months to get him to sign the non-compete properly indicated to the judge that the company didn't regard the agreement as binding. It didn't process it like a legitimate contract and never signed the document itself. It didn't even keep the original.

The judge said that between Johnson's "ambiguous acceptance" of the non-compete, the evidence that IBM misled Johnson about the job and the indications that it didn't think the agreement was valid make it "daunting, if not insurmountable" for IBM to prove breach of contract.

The judge also found that IBM "overstated its case" in alleging that Johnson's defection to Dell endangered its trade secrets - as an M&A guy what he knows isn't your classic trade secret.

And the judge said the company offered nothing substantive to dispute Johnson's contention that his ability to identify potential acquisitions was based merely on analyzing publicly available sources, not any IBM confidential or proprietary information.

According to a Johnson affidavit, when he retired from IBM "the pipeline of potential acquisitions was unusually short. Thus, I have limited knowledge regarding transactions that IBM is currently considering."

The judge said it was unclear from IBM's submissions how many potential acquisitions and divestitures were in the pipeline when Johnson quit, how large or critical those potential acquisitions are to IBM or Dell, or who else might know about them.

Despite IBM's fears that Dell will learn its "most highly sensitive confidential strategic information," Judge Robinson decided that shelving Johnson would threaten his skills and jeopardize his ability to keep current with "industry rumors and developments" as well as keep in touch with the network of investment bankers, consulting groups and CIOs necessary to his profession.

Judge Robinson's decision did not address the additional charges that IBM made against Johnson in the amended complaint it filed against Johnson.

IBM said it had learned through discovery that Johnson has been secretly trying to put together his own emerging high-tech investment firm for the last four years called JSJ Capital Management and had used company time, facilities, resources and personnel to do it.

Along with delegating one of his staff to the project, IBM charged that Johnson had used an IBM-funded trip to the Middle East to cultivate investors among the contacts he ostensibly made for IBM.

It claimed that "many of the emerging areas in the technology sector that were identified in JSJ presentation materials as potential targets for investment were the very same areas that Mr. Johnson identified in his own internal IBM self-evaluation as key areas with respect to which he was leading significant strategic initiatives on IBM's behalf."

IBM says this "flagrant conflict of interest" proves Johnson can't be trusted not to disclose its secrets to Dell. It even goes so far as to suggest that it "is entitled to the return of all compensation paid to Mr. Johnson during his period of disloyalty, which reaches at least as far back as 2005 and potentially farther."

As it is IBM is apparently sitting on close to $1.5 million in deferred compensation that it removed from Johnson's 401(k).

By the way, in a footnote in Judge Robinson's decision, he says that IBM did its case no good by delegating MacDonald to testify about the circumstances surrounding Johnson's signing the non-compete without showing him "all the documents in IBM's possession, particularly those supporting Mr. Johnson's position."