The appellants further argued that the court did not examine at all whether Kahane was harmed by his professional hat as an engineer, but based its decision on the assumption that the non-competition clause relates to Kahane's abilities as a salaried manager. According to them, in accordance with the court's ruling in the matter Barnea, in order to determine that no "The tree was cut down" It is not enough that the employee can earn a living in any occupation, but rather that he can find an alternative occupation that is parallel or close to him in terms of his skills. The appellants argued that in our case, the payment for non-competition relates to Kahane's abilities as an engineer in the field of electron microscopy, and therefore the possibility that he had to continue to earn as a salaried manager has no relevance.
According to the appellants, the court did not examine the non-competition clause at all in accordance with the case law in the case Barnea, according to which the non-competition clause should be examined in three dimensions: as to the geographic dimensionJ - Thus, the non-compete agreement with Kahane governs all the markets in the world in which the acquiring company operates; As to the field of business - This is Kahane's area of expertise for many decades (electron microscopes); and as for the dimension of time - Some of the limitations are indefinite and some are for three years. The appellants further argue in this context that taking into account the characteristics of the market, the significance of a period of three years is the complete neutralization of Kahane from the field. Therefore, according to the appellants, all the criteria indicate that in our case "The tree was cut down".
The appellants further argued that in our case Kahane acquired the knowledge in the field not in the course of his business with the Eisenberg Company, and therefore the court erred in determining that the knowledge that Kahane accumulated in the field is the property of the Eisenberg Company and was therefore sold to the acquiring company in the agreement to purchase the activity. In view of the aforesaid, the appellants argued that in our case there are circumstances for which the receipt in respect of the non-compete agreement should be classified as capital receipt and not fruitful.