decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

SCO Responds to Novell's Motion to Allow Evidence
Monday, March 15 2010 @ 12:58 PM EDT

On Friday, at the trial in SCO v. Novell, SCO told the judge that they'd file their response to Novell's Motion to Allow Evidence on Monday. And so they have:
Novell seeks to present evidence to the jury in the form of snippets of text selectively lifted from prior judicial opinions in this case. Novell claims these snippets would be used to rebut the factually correct assertion, made in SCO’s opening statement and the answer of one witness to a single question, that Novell’s claim of ownership of the UNIX and UnixWare copyrights continues to appear on Novell’s website “to this very day.” As with Novell’s previous attempts to introduce such evidence, the Court should reject this attempt to present the jury with judicial statements, not in context, that are not relevant to the claims and defenses presented here, but that would create jury confusion and be highly prejudicial to SCO.
Wait. That's not how we remember it. We remember SCO saying not just that the claim of *ownership* continued to this day; they said that the *slander* continued to this very day. From the transcript [PDF]:
So this is a campaign of slander, broadcast and repeated to the world that continues to this very day....

And to this day Novell, on their web site, continues to republish that slander.

You gotta watch the Boies Boyz, my friends, with a very close eye. They could talk a bird out of a tree before he realizes there is no worm.

That, of course, is why Novell attached the transcript, so the judge can see what they said for himself. And so can we.

Here is SCO's Memorandum in Opposition:

03/15/2010 - 798 - MEMORANDUM in Opposition re 790 MOTION to Allow Evidence Responding to SCO's Allegation that Novell's Slander Continues "To This Very Day" filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hatch, Brent) (Entered: 03/15/2010)

SCO makes the point that Novell should not be able to claim that it relied on Judge Dale Kimball's August 10, 2007 order in that when the appeals court reversed and remanded, Novell didn't remove the website. But the appeals court said Novell had strong arguments to support its claim of copyright ownership. It just said it was up to a jury to decide the matter. Anyway, that's SCO's argument. Another is that SCO has been saying the same thing for months, and Novell never raised an issue about it. The problem SCO has is all the English Stuart Singer put on the ball in front of the jury. It's one thing to say something mildly in a hearing before just the judge. It's entirely different to say it in an inflammatory way in front of the jury. So it will be interesting to see what happens next.

And finally SCO argues that Novell said and did things *prior* to any of the judicial rulings it now seeks to introduce. True. But that doesn't mean that they are not relevant in a room where SCO has now told the jury repeatedly that Novell's "slander" continues "to this very day". It could impact, if nothing else, damages, if in some weird universe Novell were found to have slandered SCO's title.

This is SCO, so of course there is one rather mean point it makes also about leaving the web site up:

Yet it is inconceivable that Novell would have made such decisions, based as they are on legal opinions, without the advice of counsel. If a party places advice of counsel at issue through a defense, then it waives the protection of the attorney-client privilege.... If Novell wished to rely on the legal significance of that opinion, it was incumbent upon Novell to assert a defense of advice of counsel in its subsequent answer. Novell declined to assert such a defense and waive privilege, which it would have to do to assert this defense.... It would clearly be improper to now allow Novell to claim reliance on a sentence in the 2004 court decision -- a decision that denied Novell's motion to dismiss -- while having asserted the attorney-client privilege throughout this litigation.
SCO argues that any probative value would be outweighed by the prejudicial effect on the jury. SCO doesn't seem to have much faith in juries, now that it has one. They seem to be arguing that the jury can't possibly do its job if it hears the whole story. "Finally," SCO writes, "to quote one sentence from the appellate decision otherwise in SCO's favor on these issues, would obviously be prejucial and unwarranted." OK. So let them see all of it. Problem solved.

Here's SCO's proposed alternative remedies, should the judge see the need for one:

Such remedies include ordering SCO to refrain from future references to the fact that Novell's website still has statements that Novell is the owner of the UNIX copyrights, or instructing the jury to focus on Novell's scienter at the times any and all statements were initially made.
The first doesn't remove what was *already said* to the jury from their calculations. And the second is cunning, without remedying the problem either. Scienter means their state of mind, why they did what they did, and if Novell can't tell the jury about the judicial rulings, on what basis can it even explain what it was relying upon? SCO says to just not let them, since some of the earlier actions and statements happened prior to the judicial rulings. Nice fix. All in SCO's favor, so its remedies actually endorse what SCO said to the jury and reward it. Like I say, you have to watch the Boyze.

SCO has also put out a press release about the Yarro loan:

The SCO Group, Inc., (Pink - News),, a leading provider of UNIX® software technology, today announced that it had secured Bankruptcy Court approval and funding for $2MM in postpetition financing in the form of a secured super-priority credit facility from a group of private lenders. Proceeds from the financing will be used to fund the company's operating and administrative expenses, as well as litigation-related expenses.


SCO Responds to Novell's Motion to Allow Evidence | 206 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
How do these people sleep at night?
Authored by: qwertybdj on Monday, March 15 2010 @ 01:10 PM EDT
'nuff said.

[ Reply to This | # ]

SCO Responds to Novell's Motion to Allow Evidence
Authored by: Anonymous on Monday, March 15 2010 @ 01:10 PM EDT
Novell seeks to present evidence to the jury in the form of snippets of text selectively lifted from prior judicial opinions in this case.

Umm, no. Novell would be quite happy for the jury to see all the prior judicial opinions in this case. But you won't let that happen, so they're trying for just the ones that will let them counter some of the FUD you've been spreading.

[ Reply to This | # ]

Corrections Here
Authored by: red floyd on Monday, March 15 2010 @ 01:11 PM EDT
In the rare event that PJ has made a mistake.

Please use "wrong => right" in the title so the error can easily be

I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Diversionary tactic
Authored by: Anonymous on Monday, March 15 2010 @ 01:14 PM EDT
SCO attaches a couple of meaningless exhibits for what purpose? The conning
never ends.

[ Reply to This | # ]

Wow. BSF mischaracterizes their own statements before this very court.
Authored by: OmniGeek on Monday, March 15 2010 @ 01:18 PM EDT
BSF get +10 points for boldness, but -10 million for utter stupidity. The judge,
having heard BSF's original statements himself, seeing them printed in the
transcript attached to Novell's motion, AND seeing SCO's counsel misrepresent
their own prior words, will now be VERY skeptical towards EVERYTHING SCO's
counsel says henceforth. And that's the best-case scenario for SCO.

The worst-case scenario for SCO is, he gets annoyed enough with them to start
ruling against them based on the presumption that they're lying unless proven

My strength is as the strength of ten men, for I am wired to the eyeballs on

[ Reply to This | # ]

Wookie and Unicorn Spottings Here
Authored by: Guil Rarey on Monday, March 15 2010 @ 01:19 PM EDT
We here at the National Watch Center for Wookies, Unicorns, Faeries, and
SCO-owned LINUX infringing code welcome your contributions.

If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con

[ Reply to This | # ]

Does Novell get a response to this
Authored by: maroberts on Monday, March 15 2010 @ 01:20 PM EDT they can point out the flaws?

[ Reply to This | # ]

How much is $2MM
Authored by: Anonymous on Monday, March 15 2010 @ 01:29 PM EDT
That makes it look like a billion, if you use the UK interpretation, or a
trillion in the US.

Weren't they only "loaned" two million?

[ Reply to This | # ]

More dubious arguments from SCO
Authored by: Anonymous on Monday, March 15 2010 @ 01:36 PM EDT
SCO writes:

See United States v. Falls, 90 Fed. Appx. 351, 358 (10th Cir. 2004) (approving of trial court’s decision to instruct both parties to avoid reference to evidence that would have rebutted the assertion of a defense that allegedly "opened the door," when evidence in question was of "dubious value to the jury.").

The obvious problem with this argument is that the evidence Novell moves to introduce is not, as SCO contends, of "dubious value to the jury." SCO is trying to calculate and maximize damages by claiming "to this day." That is significant. How can Novell be liable "to this day" if they haven't been slandering "to this day."

If Stewart does not grant Novell's motion and allows SCO to get away with continuing to claim damages "to this day," something is seriously amiss.

Every time I read SCO's filings it's like listening to the devil himself speaking. I can't handle more than a few seconds of it. Not sure how the rest of you are able to stomach their vomit. Arrgh!!!

[ Reply to This | # ]

How Super is Super-Priority?
Authored by: OmniGeek on Monday, March 15 2010 @ 01:36 PM EDT
If (when) SCO defaults on this $2 million loan, can Yarro recover ahead of
Novell's recovery of the funds SCO converted, or does Novell get the first bite?

My strength is as the strength of ten men, for I am wired to the eyeballs on

[ Reply to This | # ]

This judges seems to be a believer in jury instructions
Authored by: UncleJosh on Monday, March 15 2010 @ 01:41 PM EDT
So Novell's argument:

Moreover, the risks SCO has created can be minimized by a limiting instruction
to the jury that they may consider the evidence only to determine the state of
mind with which publications were made, and not to determine who owns the

might just fly with him...

[ Reply to This | # ]

The Pike Patent, Assignment record corroborates Novell position
Authored by: Anonymous on Monday, March 15 2010 @ 01:46 PM EDT
Mattingly refers to the "Pike" patent as not transferring. .

This is Patent 4555775,

U. S. Patent No. 4,555,775 (Pike), Issued to AT&T on November 26, 1985 for "DYNAMIC GENERATION AND OVERLAYING OF GRAPHIC WINDOWS"
The Pike patent has a long and contentious history, because it was fundamental to the graphic buffer system of windowed displays. (and was anticipated by much prior art). El Corton has links to the news reporting on this dispute on another forum, see the end of this post.

I am most interested in the assignment data at the Patent Pair office, because it corroborates the Novell efforts to protect this ownership.

The patent went through two back-dated assignments, effective in 1993 and 1994, but dated when submitted as 9/8/95. and 11/27/95. These were ATT>USL and USL > Novell.

The date correspond to the "Sleighride" negotiations and the final APA; and indicate that Novell was making sure it retained the patent.

Of course, Novell did not do the same paperwork on copyrights at this time, but that is because, in my opinion, post-BSD, Unix was un-copyrightable in any traditional sense. Novell knew at the time it had a unholy mess of conflicting sources. And the ambiguity over what was owned and what could be owned prevented any clear statement about copyright. SCO is exploiting this lack of clarity.

This transaction, recorded at the sleighride period, but backdated to 1994 transfers ATT interest to USL
Recorded: 09/08/1995
Exec Dt: 01/10/1994

This assignment recorded later in November 95, transfers the patent from USL to Novell through Merger transaction, but is backdated to 6/93
Recorded: 11/27/1995
Exec Dt: 06/14/1993
Assignee: NOVELL, INC.

El Corton's news items on the history of the patent:

One overbroad115 AT&T patent claimed what is now known as “backing store for windows,”116 but the claims were written instead with the idiosyncratic word “layers.”117 The key phrase “backing store” appeared nowhere in the patent. Peculiar jargon is probably more likely to find itself in patents because inventors, by definition, believe they have cutting-edge work and may think that new words are necessary to properly describe it.

115 The patent threatened to stop M.I.T. from giving technology it invented to the public. Stallman & Garfinkle, supra note 106, at 19. The X Window System software actually used a simpler, older backing store algorithm by M.I.T. Richard Stallman & Simon Garfinkle, Response to Dennis Ritchie, COMMUNICATIONS OF THE ACM, June 1992, at 15. Unfortunately the older implementation had been deemed “too obvious to publish.” Dennis M. Ritchie, Letter, COMMUNICATIONS OF THE ACM, June 1992, at 13. Not being publicly available, M.I.T.’s earlier work could not invalidate the overbroad AT&T patent.

116 U.S. Patent No. 4,555,775 (issued Nov. 26, 1985) was the subject of extensive legal maneuvering in the 1980s. AT&T sent infringement notices to members of M.I.T.’s X Consortium. John Markoff, Patent Action on Software by A.T.&T., N.Y. TIMES, Feb. 26, 1991, at D1. The letter acknowledged the term “backing store.” Consequently , we bring to your attention an A T&T patent #4,555,775 invented by Robert C. Pike and issued on November 26, 1985. The “backing store” functionality available in the X Windows System is an implementation of this patented invention, therefore, your company/institution needs a license from AT&T for the use of this patent.

Letter from A.E. Herron, Manager, Intellectual Property, AT&T, to X Consortium Members, (Feb. 7, 1991) (copy on file with the STAN. J.L. BUS. & FIN.).

117 Rob Pike, Graphics in Overlapping Bitmap Layers, 2 ACM TRANSACTIONS ON GRAPHICS 135 (1983) (word “layers” coined by inventor Pike). Pike’s invention was hailed as a clever way of saving memory. JAMES D. FOLEY ET AL., COMPUTER GRAPHICS: PRINCIPLES AND PRACTICE 996−98 (2d ed. 1996).

Stephen Lindholm, Marking the Software Patent Beast

Second source:

September 24, 1991

Memorandum to: Members of the X Consortium

Subj: U. S. Patent No. 4,555,775 (Pike), Issued to AT&T on November 26, 1985 for "DYNAMIC GENERATION AND OVERLAYING OF GRAPHIC WINDOWS"

In February 1991, AT&T sent letters to MIT and to members of the X Consortium, notifying the community that the "backing store" functionality available in the X Window System is an implementation of a patented AT&T invention, and that consequently, companies or institutions commercially marketing or internally developing products based on an X Window System implementation will need a license from AT&T. Since MIT developed the X Window System and distributes it widely, we were deeply concerned by AT&T's action, and we conducted a thorough technical analysis of the patent and similar window system technology. MIT also retained counsel to provide us with an expert legal opinion. Both our technical analysis and the legal opinion conclude that AT&T's claim with respect to the X Window System cannot be sustained.

Patent #4,555,775 was applied for in 1982 by Robert Pike and issued in 1985 to his employer, Bell Laboratories. It describes a variation of graphics drawing algorithms that enables a single display screen to support overlapping windows, in which several programs can be active simultaneously. It is our opinion that this same capability was present in window systems that predated the Bell Laboratories' work.

The Bell Laboratories' work, the X Window System, and previous window systems all use different variants of the same basic methodology (storing obscured regions of windows as off-screen bit maps). Both our legal and technical analyses agree that each of the patent's claims is either so broad as to have been anticipated by prior art, or so narrow as to apply only to the `775 patent's specific algorithm and not to the X Window System.

AT&T has requested the Patent Office to open the `775 patent for reexamination, which will give AT&T an opportunity to clarify the patent's claims. We hope that AT&T will seek there to recognize the contribution of the work on which it is based while not casting its claims beyond the specific methodology involved. MIT is very willing to work with AT&T toward reaching this goal and is exploring ways in which this can be done.

From a broader perspective, the confusion over the `775 patent illustrates the difficulties raised by the increasing number of patents issued on software technology. We would welcome the opportunity to join with AT&T, other companies, and the university community to explore ways to alleviate these problems. Software is an area in which prior art is often difficult to identify and in which obviousness differs significantly from one perspective to another. The recent proliferation of software patents is creating pressure on software developers to seek patent protection for straightforward ideas, and increasing pressure to claim broad applicability of software patents, well beyond the scope of any original invention. These practices introduce a chilling effect on university research, and they undermine our ability to pursue ideas in a free and open climate. In as much as these practices attack the university's central goals and its obligation to disseminate information, they are a matter of utmost seriousness to MIT.


[ Reply to This | # ]

An optimistic prediction
Authored by: Anonymous on Monday, March 15 2010 @ 01:47 PM EDT
The Judge will deny the motion to admit evidence...

And then after SCO closes, grant a motion for summary judgment that slander did
not occur. Another possibility is a directed verdict.

[ Reply to This | # ]

They only half lied on one of the three points
Authored by: bugstomper on Monday, March 15 2010 @ 01:54 PM EDT
PJ is right that SCO attempts to mislead the Court by claiming that they only
made the factual assertion that Novell still, "to this very day",
claims to own the copyrights, when actually SCO claimed twice in the opening
statement that Novell continues to slander to this very day.

But in the third instance, SCO did not attempt to mislead the Court in that way.
They said "made in SCO’s opening statement and the answer of one witness to
a single question". The transcript shows, regarding the witness:

"Q. Are you aware of continued assertions of ownership to Unix copyrights
by Novell to this very day?
A. Yes"

That one does not claim slander "to this very day", just ownership of
copyrights to this very day. Is it a claim made in "the answer of one
witness" or a claim made by SCO in questioning a witness? Well, I'll give
them credit for half a truth there.

[ Reply to This | # ]

So the difference is between Slandar and Claim of Ownership...
Authored by: mtew on Monday, March 15 2010 @ 01:59 PM EDT
That Novell claims ownership is not in dispute. It should not need to be
addressed. It does NOT mean, by itself, that Novell has slandered SCO's title.
The testimony presented implies that it does and that is an unfounded,
misleading and incorrect opinion that should be countered. It should have been
(and maybe it was) challenged as an opinion improperly presented as fact.

Novell should be allowed to argue that the opinion is improper and lay a
foundation that establishes the difference between a claim of ownership and
slander. From that foundation the evidence shows the distinction between the
two and in THAT context, be allowed. However, until that foundation has been
layed, it is irrelavant.

INAL but I suspect that the proper ruling on this is that the evidence Novell
wants to present should not be allowed AT THIS TIME, but they muat be allowed to
establish the proper foundation and present the evidence on that foundation. In
other words, Novell must be allowed to bring this up when it is appropriate, but
it is not appropriate at the momenet.


[ Reply to This | # ]

Trying to provoke a mistrial?
Authored by: Anonymous on Monday, March 15 2010 @ 03:05 PM EDT
Setting aside the moral arguments (which you always have to do with SCO), what
happens if there is a mistrial?

A new judge (where have we seen that before)?

How would it affect Yarro deal?

Would there be a new trial, with SCO out of money?

What happens if the 10th Circuit's ruling just remains intact with no clarifying
trial? Novell seek a declaratory judgment? Hope the Supreme Court does the

[ Reply to This | # ]

Authored by: Anonymous on Monday, March 15 2010 @ 05:18 PM EDT
Sounds like they do not want Novell to be allowed to present any sort of
evidence in their defence.

And talking about snippets, who wanted to cut up Ms O'Gara's deposition so only
show the bits in their favour?


[ Reply to This | # ]

Dockrt #799
Authored by: Anonymous on Monday, March 15 2010 @ 05:54 PM EDT
Lets have a mistrial says Novell,
No says the judge.

[ Reply to This | # ]

SCO Responds to Novell's Motion to Allow Evidence
Authored by: Yossarian on Monday, March 15 2010 @ 06:24 PM EDT
>The first doesn't remove what was *already said* to the jury from their

That sound to me like "We played blackjack; I took an extra
card hat put me in 22. Can I please just put the card back
in deck if I'll just promise never to pick it again?"

It is OK to have such "logic" when you are 9 years old
playing with friends and no real money. But don't try to do
that in Vegas.

[ Reply to This | # ]

Authored by: Anonymous on Monday, March 15 2010 @ 06:55 PM EDT
As far as I can see SCO's motion is an outright lie. Isn't this a textbook case
of perjury?

[ Reply to This | # ]

What they really meant:
Authored by: Sunny Penguin on Monday, March 15 2010 @ 07:35 PM EDT
The Court should reject this attempt to present the jury with judicial
statements, that would be highly prejudicial to SCO.

EOD is a science of vague assumptions based on debatable data taken from
inconclusive experiments with instruments of problematic accuracy by persons of

[ Reply to This | # ]

Since the judge let's SCO do what they want...
Authored by: Anonymous on Monday, March 15 2010 @ 07:45 PM EDT
...what's to stop Novell from also introducing any evidence they want too?
Obviously the judge has no intention of enforcing the agreements he made before
the trial started.

Or is that only when SCO violates those agreements?

[ Reply to This | # ]

SCO Responds to Novell's Motion to Allow Evidence
Authored by: alansz on Monday, March 15 2010 @ 08:17 PM EDT
You know, it's also possible that Stewart thinks that SCO has such a lousy case
that he doesn't want to get in the way of a jury verdict against them that will
have no grounds for appeal. He doesn't want a mistrial to give them another
chance to present things better (e.g., without Mattingly screwing them up)
because he thinks Novell would be worse served (even though apparently Novell
moved for the mistrial).

We'll need to see what's in the orders. Perhaps he plans to handle everything
with some very powerful jury instructions.

(Perhaps not. But we don't know yet...)

[ Reply to This | # ]

"... jury can't possibly do its job if it hears the whole story."
Authored by: Anonymous on Monday, March 15 2010 @ 08:49 PM EDT
This statement is absolutely true ... IF, as I think, t$COg believes that the
jury's _job_ is to find absolutely in their favor. What else _could_ it mean,
under these circumstances?

Oh, by the way, don't we still have an oath that includes the phrase "the
truth, the WHOLE truth, and NOTHING BUT the truth"?

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )