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Kimball Vacates Tomorrow's Hearing in SCO v. Novell
Monday, September 10 2007 @ 10:12 PM EDT

Here's the Pacer notice that tomorrow's hearing is cancelled in SCO v. Novell. I'll put the other new documents up shortly, but I know some of you were planning on attending on the hearing, so I wanted to let you know right away that it is now cancelled. Update: The PDFs are available now, Novell's Memorandum in Opposition to SCO's Motion for Reconsideration, redacted version, a redacted Declaration of David Melaugh, and some exhibits. Once again, Novell has found a case to use that was decided by Judge Dale Kimball, Exhibit 1 to the Memo in Opposition.

Pacer:
Filed & Entered: 09/10/2007
Terminate Deadlines/Hearings
Docket Text: Deadlines/Hearings terminated : Motion hearing set for 9/11/2007 is vacated. (kmj)

454 - Filed & Entered: 09/10/2007
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [419] Plaintiff's MOTION FOR RECONSIDERATION OR CLARIFICATION OF THE COURTS AUGUST 10, 2007 ORDER re [377] Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,Plaintiff's MOTION FOR RECONSIDERATION OR CLARIFICATION OF THE COURTS AUGUST 10, 2007 ORDER re [377] Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment, [REDACTED] filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 1 # (2) Exhibit 2)(Sneddon, Heather)

455 - Filed & Entered: 09/10/2007
Declaration
Docket Text: DECLARATION of David E. Melaugh re [454] Memorandum in Opposition to Motion,, [REDACTED] filed by Novell, Inc.. (Attachments: # (1) Exhibit 5)(Sneddon, Heather)

456 - Filed & Entered: 09/10/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Novell's Opposition to SCO's Motion for Reconsideration and David Melaugh's Declaration filed by Defendant Novell, Inc. (Sneddon, Heather)

Here are the exhibits we don't get to see but which are listed in David Melaugh's Declaration:

  • Exhibit 1 - a letter from Bill Broderick to Cynthia Lamont, dated May 26, 1996;
  • Exhibit 2 - an Agreement between The Santa Cruz Operation and Argus Systems Group dated December 28, 1999;
  • Exhibit 3 - an Agreement between The Santa Cruz Operation and Cyberguard Corporation dated March 31, 1998;
  • Exhibit 4 - an Agreement between The Santa Cruz Operation and Dascom dated March 30, 1998;
  • Exhibit 6 - a copy of Asset Purchase Agreement Audit Compliance Report dated March 2, 1999

The exhibit we do get to see is Exhibit 5, the excerpt from Jean Acheson's deposition.


  


Kimball Vacates Tomorrow's Hearing in SCO v. Novell | 197 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic here
Authored by: DannyB on Monday, September 10 2007 @ 10:24 PM EDT
Post off topic messages here. Make links clickable.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Newspicks discussion goes here
Authored by: Waterman on Monday, September 10 2007 @ 10:26 PM EDT
For those of interest.

[ Reply to This | # ]

Kimball Vacates Tomorrow's Hearing in SCO v. Novell
Authored by: Anonymous on Monday, September 10 2007 @ 10:54 PM EDT


tSCOg *do not want to be humiliated in court*

They pushed this to the wire but IMHO never intended
to see it through if they could not get a jury to manipulate.

They are about to settle - assuming Novell agrees (which they will and for good
reasons) then expect tSCOg to be left with just enough money to pay about 1-2
months bills or Novell may take assets in a swap for cash.

Novell do intend to leave tSCOg still on their feet so IBM can finish them off.

Trust me :)

DSM

[ Reply to This | # ]

Kimball Vacates Tomorrow's Hearing in SCO v. Novell
Authored by: sef on Monday, September 10 2007 @ 11:54 PM EDT

Okay... what does this mean? Was it cancelled because Kimball decided it wasn't necessary given the briefs, or did one of the parties cancel it?

[ Reply to This | # ]

SCO in lawsuit business; their not going to quit
Authored by: Anonymous on Tuesday, September 11 2007 @ 12:17 AM EDT
I think they'll let Judge Kimball do what he wants. Then force their captive
lawyers to appeal everything they can. There's almost no cost for SCO to proceed
to an appeal. But to their lawyers there is a cost. Failure to proceed could
leave them liable to yet another lawsuit from SCO. They must do everything they
can, up to the point the courts consider their action a fruitless waste of court
time.

[ Reply to This | # ]

What happens when SCOs Licenses are found to be SVRX?
Authored by: softbear on Tuesday, September 11 2007 @ 12:51 AM EDT
I can't help but wonder what on earth happens when next week's ruling (assuming
it comes from the bench) says the SCO Source Licenses are SVRX.

Do the headlines read:

- Kimball Vacates SCO/Microsoft Agreement? or
- Novell voids SCO/Microsoft and other SCO Source Agreements?

Or has Novell already warned them that their goose is cooked? Seems like
someone is hiding part of the chess board ... what am I missing now?

---
IANAL, etc.

[ Reply to This | # ]

Corrections Here
Authored by: DaveJakeman on Tuesday, September 11 2007 @ 04:27 AM EDT
There seems to be repetition in the entry for 454. Is that as it was on PACER?

---
Only two things are infinite: the universe and human stupidity – and I'm not
sure about the former. -- Einstein

[ Reply to This | # ]

  • Corrections Here - Authored by: Anonymous on Tuesday, September 11 2007 @ 08:10 AM EDT
454 Intro as Text
Authored by: DaveJakeman on Tuesday, September 11 2007 @ 05:49 AM EDT
454
In support of their Motions for Summary Judgment, Novell and SCO submitted over 1,500 pages of briefing, numerous declarations, and many hundreds of pages of exhibits. The Court heard oral argument for three days on these motions; the transcripts run over 240 pages. Following careful review of that extensive record, the Court issued a 102-page opinion that exhaustively lays out each side's position and evidence, concludes some issues in Novell's favor as a matter of law, others in SCO's and leaves several issues open for the trier of fact. In that August 10, 2007 Memorandum Decision and Order ("Order"), the Court held that when the APA said that Novell retained title to "all...SVRX Royalties," it did, in fact, mean that Novell is entitled to all such royalties.

SCO's motion for reconsideration seeks again to avoid the plain language of the APA and secure for SCO a chunk of the SVRX Royalties. SCO's motion does not cite any intervening change in law. It does not claim that there is any new evidence that might undermine the Court's considered Order. SCO merely claims the Court was wrong. As this Court has held, that is not an appropriate basis for reconsideration: "A disagreement with the court's decision is not enough to warrant the court to amend, alter or reconsider its decision." Whitmer v. World Fin. Network Nat'l Bank, No. 04-00567, 2006 U.S. Dist. LEXIS 73169, at *6 (D. Utah Oct. 6, 2006) (Kimball, J.) (attached hereto as Ex. 1). The Court should therefore deny SCO's motion.

Oh no, it's that word "all" again. We know SCO have trouble with that one.

---
Only two things are infinite: the universe and human stupidity – and I'm not sure about the former. -- Einstein

[ Reply to This | # ]

Exhibit 2 to 454 - discontinuing Comedian
Authored by: Anonymous on Tuesday, September 11 2007 @ 07:03 AM EDT
The case attached to 454 as exhibit 2 has a fairly humorous typographical error in the pdf.
Plaintiff has again failed to offer support from a medical expert for his contention that the discontinuation of Comedian caused his current medical condition.

I am pretty sure that discontinuing Comedian does not normally cause a coronary thrombosis (or multiple thrombosi), and that the original argument was probably related to Coumadin, the blood thinner used to treat various coronary conditions, but I found it exremely funny when I read it.

[ Reply to This | # ]

Question about Appeal
Authored by: Anonymous on Tuesday, September 11 2007 @ 07:25 AM EDT
Seriously!!

I think we need an explanation of just what can be done in the Appeal Process.
Folks keep tossing it out like the whole case can be retried and reversed in the
Appeals Court. It is my understanding that the Court settles questions of
whether the trial was done properly but can not /will not do more than snd it
back to the lower Court with some instructions to check some point of law. What
is the real picture?

In this case it seems that SCO's hopes are bound to 9 hearsay witnesses who
danced around saying "we bought the whole thing" vs a few folks who
were first party saying "no you didn't" and a reinterpretation of an
existing contract that is pretty plain reading. I don't see anything for to
lend creedence to SCO's position. What am I missing?

[ Reply to This | # ]

454 - MEMORANDUM in Opposition re [419]
Authored by: cbc on Tuesday, September 11 2007 @ 10:12 AM EDT

SCOG's continued references to things they wish were in the APA reminds me of a poem:

Yesterday upon the stair
I met a man who wasn't there.
He wasn't there again today
Oh how I wish he'd go away.

More about this poem

[ Reply to This | # ]

SVRx Licensing gets a Little Clearer
Authored by: ChrisP on Tuesday, September 11 2007 @ 11:01 AM EDT
...to me anyway.

When IBM licensed rights to SVR3.x, there was no need to include an explicit
license to earlier versions of SVRx. Use of earlier code included in SVR3 was
implicit in the SVR3 license.

Similarly with UnixWare. If the customer was just interested in Unixware, there
was no need to include an explicit license to any SVR4 and earlier code included
included in Unixware. There was a natural and implicit right to use the Novell's
SVRx code and this I think is what is meant by an incidental license to SVRx.
Royalties were due to Novell only if the triggering level was reached (40% of
the plan sales).

But if a customer was interested in SVRx code as well, then the license
explicitly included a grant of rights to use SVRx code. Novell had to be
consulted and an agreed portion of the total license fees became 100% (-5)
Novell's.

Now we can see more clearly where the judge Kimball and Novell are coming from.
If a license explicitly extends rights to Novell's SVRx code then Novell is due
all the royalties attributable to that part of the license. The SCOSource
licenses are such licenses. Ordinary Unixware licensees needed no such
provision.

---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

[ Reply to This | # ]

Both of SCOs remaining motions to exclude evidence have been denied
Authored by: ChrisP on Tuesday, September 11 2007 @ 05:32 PM EDT
Judge Kimball thinks he has prejudiced both sides with his recent order. :-)

http://sco.tuxrocks.com/Docs/Novell/Novell-457.pdf

---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

[ Reply to This | # ]

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