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Novell Survives MS's Motion to Dismiss |
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Saturday, June 11 2005 @ 12:24 PM EDT
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UPDATE: I just heard from Novell, and the two claims that survived are claims 1 and 6, Monopolization Of The Intel-Compatible Operating Systems Market &
Exclusionary Agreements In Unreasonable Restraint Of Trade. On the other claims, the judge said if Novell wished to bring those claims, they should have done so long ago when the government brought its case against Microsoft on related issues. We have the Order Granting in Part and Denying in Part [PDF] and the letter/Memorandum Opinion [PDF] explaining the judge's decision. There is also a letter of transfer [PDF] from Utah to Maryland and a letter to the parties [PDF] about the order to come. That letter calls it Novell's motion to dismiss, but I believe the judge meant Microsoft's motion to dismiss. This is an extremely busy judge.
From the order: "While Section 16(i) properly serves the purpose of permitting private plaintiffs to wait to bring private claims encompassed within a government enforcement action until that action has come to an end, it should not be construed to permit private plaintiffs to sit on their rights and assert claims so much broader than those asserted by the government that they open entirely new vistas of litigation. If Novell wanted to assert claims for monopolization and attempted monopolization in the word processing and spreadsheet markets, it should have done so long ago. Its inaction entitles Microsoft to the comfort of repose." No word yet on whether Novell will appeal. *************************************** According to the Seattle Post-Intelligencer, Novell has won the right to pursue its claims against Microsoft. More precisely, it can pursue two of them: U.S. District Judge Frederick Motz in Baltimore said yesterday that Novell could pursue claims that Microsoft tried to shut out sales of Novell's word processing software to protect its own Windows operating system software. The judge dismissed four other allegations, saying Novell waited too long to raise them.
In supporting his decision to allow Novell to pursue claims that Microsoft's Window's monopoly damaged Novell's ability to sell WordPerfect, Motz cited a Microsoft e-mail to billionaire investor Warren Buffett.
"If we own the key franchises built on top of the operating system, we dramatically widen the 'moat' that protects the operating system business," said the Aug. 17, 1997, e-mail from Jeff Raikes, a Microsoft group vice president who now runs the Office Group. "We hope to make a lot of money off these franchises, but even more important is that they should protect Windows royalty per PC." The decision is not posted yet on the page for this judge's decisions, but here's the page where it will be, when it gets posted, and it's freely available to the public. You don't need a Pacer account. That's the page for all recent decisions. You can fine tune by clicking on "Query by Judge" and choosing Motz from the dropdown list.
Note, if you scroll down the page, this Judge Motz is the same judge handling the Burst case. The article mentions that they can pursue two claims, but it doesn't tell us what the second is. Perhaps an editor cut the article, without noticing that. Or, maybe that's a mistake. Our earlier coverage of what Microsoft said in its Motion to Dismiss makes it possible to make an educated guess, putting it together with the news story. If you remember, Microsoft said all of Novell's claims were time barred except for Claim I. Novell's various counts were the following: - Count I -- Monopolization Of The Intel-Compatible Operating
Systems Market;
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Count II -- Monopolization Of The Market For Word Processing
Applications;
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Count III -- Monopolization Of The Market For Spreadsheet
Applications;
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Count IV -- Attempted Monopolization Of The Market For Word
Processing Applications;
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Count V -- Attempted Monopolization Of The Market For
Spreadsheet Applications; and
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Count VI -- Exclusionary Agreements In Unreasonable Restraint Of
Trade.
I've contacted Novell to get more info on exactly which claims remain, but being Saturday, I may not hear back until Monday. By then the decision may be posted too. For more details on this litigation, try our Novell v. Microsoft resource page. Here's something that surprised me. When I went to the web site for the US District Court for the District of Maryland (this case is Baltimore Division), I find that Microsoft is placing advertising on their search page. No one else. As you will remember, it was Microsoft that petitioned the court to transfer pre-trial motions in the Novell v. Microsoft case from Utah to Maryland, which Novell opposed. Things that make you go hmm. So, it's back to court for Microsoft. They just were found guilty of patent infringement, again, and they must pay $9 million to a Guatemalan inventor, Carlos Amado, who said he offered to sell his program, that links Excel and Access, to the company, who declined and then wrote their own version of the same thing, without crediting him or paying him a penny. Microsoft had claimed that they were already writing such a program before they chatted with the inventor and that their version did not infringe his patent. The jury said, Yeah, right. They found for Mr. Amado. Microsoft hasn't announced yet if they will appeal. Microsoft must like being in court, or they'd stop doing things that bring them there. Or maybe it's an addiction, like allergy patients who crave the very thing that makes them sick.
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Authored by: Tufty on Saturday, June 11 2005 @ 12:50 PM EDT |
Keeping it tidy
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There has to be a rabbit down this rabbit hole somewhere!
Now I want it's hide.[ Reply to This | # ]
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Authored by: Leccy on Saturday, June 11 2005 @ 12:51 PM EDT |
Please Leave your off topic messages here
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To err is human.
To really mess it up takes a software patent[ Reply to This | # ]
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Authored by: crythias on Saturday, June 11 2005 @ 01:10 PM EDT |
I'm sorry. Do we applaud or do we cringe? [ Reply to This | # ]
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Authored by: Anonymous on Saturday, June 11 2005 @ 01:18 PM EDT |
That search page looks like a templated file that comes with whatever MS
software package the court is using for it's website as noticed by the title of
the page being "Sample ASP Search Form". So, I don't think it's
anything Microsoft is doing, but that the developer of the court's website
hasn't felt the need to change it.
[ Reply to This | # ]
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Authored by: Jude on Saturday, June 11 2005 @ 01:22 PM EDT |
Microsoft must like being in court, or they'd stop doing things that bring
them there.
It's called the "cost of doing business".
MS deliberately
breaks the law, and they never suffer any penalty that is sufficient
to make
them stop. After they've paid whatever penalty the court imposes, they
still
have a pile of profit left and they've permanently improved their
market position.
Why should they obey the law?
Imagine what would happen
if people only got fined $500 for stealing a car,
and they got to keep
the car.
[ Reply to This | # ]
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Authored by: belzecue on Saturday, June 11 2005 @ 01:28 PM EDT |
PJ, the banner looks to be part of the 'sample' search form they are using, not
advertising per se.
They must have grabbed it from a samples directory and simply neglected to give
it their own 'look and feel'. Based on the underlying page code, MS hold
copyright on the search page itself, and therefore use of the query template
would require that the MS banner is not removed.
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<meta NAME="DESCRIPTION" CONTENT="Sample ASP query form
for Indexing Service">
<meta NAME="AUTHOR" CONTENT="Indexing Service
Team">
<meta NAME="KEYWORDS" CONTENT="query, content,
hit">
<meta NAME="SUBJECT" CONTENT="sample form">
<meta NAME="MS.CATEGORY" CONTENT="Internet">
<meta NAME="MS.LOCALE" CONTENT="EN-US">
<meta HTTP-EQUIV="Content-Type" CONTENT="text/html;
charset=Windows-1252">
and then further in...
<!-- STANDARD MICROSOFT FOOTER FOR QUERY PAGES -->
etc...
<!-- Microsoft Legal Info -->
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Authored by: Anonymous on Saturday, June 11 2005 @ 01:41 PM EDT |
It is strange that a 3rd party can own patents concerning the way in which
Microsoft programs themselves share data and interact between eachother.
The more such patent issues make it to public, the more the cry for reform is;
at least I hope so[ Reply to This | # ]
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Authored by: hardcode57 on Saturday, June 11 2005 @ 01:51 PM EDT |
...or they'd stop doing things that bring them there.
Just poor
impulse control, like any petty criminal with the emotional age of an 8-year
old.
In 'Accidental Empires' Cringely tells a good story about Bill
Gates, already an incredibly wealthy adult, fussing about in a supermarket
checkout looking for a discount coupon for some ice-ceam, Eventually somone
behind him in the queue gave him the 50c he was short so he'd move on, Of course
our Bill took it, behaviour that FXG describes (reasonably) as being consistant
with the behaviour you'd expect from a poorly socialised 8-year
old.
This explains almost all of M$ behaviour: the people running
the compny are just plain immature. They think that everyone who isn't part of
their gang is an enemy, they still think is is cool to 'get away' with stuff,
and they don't stop and think before doing what they want.
If you want
to understand how Gates, Ballmer et al. function, think a bunch of little boys
riding bikes that they haven't quite grown into yet, with baseball cards clipped
to the spokes to make that really neat noise, It's the end of the summer
vacation and they're really bored.
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Authored by: inode_buddha on Saturday, June 11 2005 @ 03:45 PM EDT |
Things don't go "hmmm". They go "ka-ching!"
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-inode_buddha
Copyright info in bio
"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman[ Reply to This | # ]
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Authored by: tknarr on Saturday, June 11 2005 @ 04:04 PM EDT |
<p>My guess would be count VI is the other one allowed. II/IV and III/V
pair up nicely, and I'd expect all 4 to be allowed or disallowed at one
time.</p>[ Reply to This | # ]
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Authored by: Anonymous on Saturday, June 11 2005 @ 05:06 PM EDT |
" Here's something that surprised me. When I went to the web site
for the US District Court for the District of Maryland (this case is Baltimore
Division), I find that Microsoft is placing advertising on their search page. No
one else."
I don't think its so much advertising as a copyright
statement.
I don't know what search software the site is using but my money
is on it being a M$ product and it could be a condition of its use that the
copyright notice be posted.
Having said that, I still think it is
unacceptable on a government website.
Howard.
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Authored by: Anonymous on Saturday, June 11 2005 @ 08:19 PM EDT |
Remembering when w wondered why <a
href="http://news.zdnet.co.uk/software/linuxunix/0,39020390,39162358,00.htm
">
Sun was making noise about buying Novell</a>.
Wonder if that idea came at the bidding of their wonderful IP-partner and ally
against linux in part due to this lawsuit.[ Reply to This | # ]
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Authored by: dyfet on Saturday, June 11 2005 @ 09:00 PM EDT |
I found it interesting that I and VI remain. Those are the ones that by far
have
the strongest existing evidence from many sources, and I think also are
the
claims best supported by the conclusions of the DOJ anti-trust trial as
well.
[ Reply to This | # ]
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