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Novell Survives MS's Motion to Dismiss
Saturday, June 11 2005 @ 12:24 PM EDT

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;
  • Count II -- Monopolization Of The Market For Word Processing Applications;
  • Count III -- Monopolization Of The Market For Spreadsheet Applications;
  • Count IV -- Attempted Monopolization Of The Market For Word Processing Applications;
  • Count V -- Attempted Monopolization Of The Market For Spreadsheet Applications; and
  • 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.


  


Novell Survives MS's Motion to Dismiss | 100 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Tufty on Saturday, June 11 2005 @ 12:50 PM EDT
Keeping it tidy


---
There has to be a rabbit down this rabbit hole somewhere!
Now I want it's hide.

[ Reply to This | # ]

OT - messages here
Authored by: Leccy on Saturday, June 11 2005 @ 12:51 PM EDT
Please Leave your off topic messages here

---
To err is human.
To really mess it up takes a software patent

[ Reply to This | # ]

$9M patent infringement?
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 | # ]

Novell Survives MS's Motion to Dismiss
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 | # ]

Novell Survives MS's Motion to Dismiss
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 | # ]

MS advertising isn't advertising, I think
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.

-----

<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 -->

[ Reply to This | # ]

The Patent issue
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 | # ]

Microsoft must like being in court...
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.

[ Reply to This | # ]

Things that make you go hmm.
Authored by: inode_buddha on Saturday, June 11 2005 @ 03:45 PM EDT
Things don't go "hmmm". They go "ka-ching!"

---
-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 | # ]

Novell Survives MS's Motion to Dismiss
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 | # ]

Novell Survives MS's Motion to Dismiss
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.

[ Reply to This | # ]

Tinfoil hat
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 | # ]

Most evidence available too
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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