Thanks to sfohey and Samuel Blomqvist, we have the Red Hat Memorandum Order as text. What stands out is that the judge didn't even need the new material Red Hat asked her to consider. She decided there was an actual controversy based on SCO's earlier public comments.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RED HAT, INC.,
THE SCO GROUP, INC.,
Civ. No. 03-772-SLR
At Wilmington this 6th day of April, 2004, having
reviewed the pending motions and the papers filed in connection
IT IS ORDERED that:
1. The motion to dismiss filed by defendant The SCO
Group, Inc. ("SCO") (D.I. 8) is denied.
a. The Declaratory Judgement Act limits the use of
declaratory judgments to cases of "actual controversy." 28
U.S.C. $ 2201; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-
40 (1937). Generally, the presence of an "actual controversy"
within the Act depends on "whether the facts alleged, under all
circumstances, show that there is a substantial controversy
between the parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory
judgment." Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S.
270, 273 (1941). Plaintiff, as the party seeking to invoke the
court's jurisdiction, bears the burden of proving by a
preponderance of the evidence that an "actual controversy" exists
at the time of the complaint's filing, and continues to exist
throughout the pendency of the action. See International Med.
Prosthetics Research Assoc. v. Gore Entrp. Holdings, 787 F.2d
572, 575 (Fed. Cir. 1986). Even when it is determined that an
actual controversy exists, federal courts may decline to exercise
that discretionary jurisdiction. See Public Affair Assoc. v.
Rickover, 369 U.S. 111, 112 (1962) ("The Declaratory Judgment Act
was an authorization, not a command. It gave federal courts
competence to make a declaration of rights; it did not impose a
duty to do so.").
b. In deciding whether to allow a claim for
declaratory relief to proceed in patent and copyright cases,
federal courts use a two-step analysis in determining whether an
"actual controversy" exists. First, defendant's conduct must
have created a reasonable apprehension on plaintiff's part that
it will face a suit for infringement. This test is an objective
one, focusing on whether the defendant's conduct rose to a level
sufficient to indicate an intent to enforce its patent or
copyright. Goodyear Tire & Rubber Co. v. Releasomers, Inc., 824
F.2d 953, 955 (Fed. Cir. 1987). Courts have not required an
express infringement charge. Id. at 956. Absent an express
charge, courts must consider under the totality of the
circumstances whether the defendant's conduct meets the first
prong. Id. at 955. Second, the plaintiff must have engaged in
allegedly infringing acts, or possessed the capability and
definite intention to engage immediately in such acts. Id. This
second prong, in essence, prohibits declaratory judgment
plaintiffs from seeking advisory opinions on their potential
liability for initiating some future activites. Arrowhead
Indus. Water v. Ecolochem, Inc., 846 F.2d 731, 736 (Fed. Cir.
1988) (citations omitted). Declaratory judgment plaintiffs must
be engaged in an actual making, selling, or using activity
subject to an infringement charge or must have made meaningful
preparation for such activity. Id. (citations omitted).
c. Plaintiff Red Hat, Inc. ("Red Hat") has
alleged that defendant SCO is engaged in a campaign to create
fear, uncertainty, and doubt about the LINUX operating system,
with resulting direct harm to Red Hat. Moreover, Red Hat has
submitted multiple press releases which indicate that SCO, in
fact, has embarked on a campaign to protect its proprietary
interests in its UNIX OS, particularly as against the LINUX
industry which, SCO claims, is illegally appropriating its UNIX
source code. (See, e.g., D.I. 10, exs. E, F, G) Although SCO
chose as its first adversary International Business Machines
Corporation ("IBM") (the "Utah litigation") (see D.I. 10, exs. A,
B), nevertheless, SCO has publicly stated that it has issues with
Red Hat, that it will likely file a new suit or amend its
controversial lawsuit against IBM to target other companies" like
Red Hat in the LINUX industry, that "[t]here will be a day of
reckoning for Red Hat," and that "chances for negotiating with
such companies [as Red Hat] appear to be slim." (D.I. 10, exs. E
d. Under these circumstances, the court concludes
that SCO's conduct has created a reasonable apprehension of suit.
Moreover, there is no question that Red Hat is a LINUX software
developer who is engaging in the allegedly infringing activities.
e. Given the court's conclusion, SCO's motion to
stay discovery pending resolution of the motion to dismiss (D.I.
21) is denied as moot.
2. Despite the above ruling, the court has concluded
that the instant action should be stayed pending a resolution of
the Utah litigation between SCO and IBM.
a. From the materials of record, SCO has accused
IBM of engaging in a scheme to "deliberately and improperly
destroy the economic value of UNIX and particularly the economic
value of UNIX on Intel-based processors" by, inter alia,
"misappropriat[ing] the confidential and proprietary information
from SCO in Project Monterey."  Furthermore, SCO claims in its
suit against IBM that "IBM . . . misused its access to the UNIX
source code" by, inter alia, "working closely with the open
source community [and] contributing technologies and resources"
to the LINUX system, thus benefitting Red Hat, among others.
(D. I. 10, ex. A)
b. From the allegations found in the complaint,
the core issue of whether the LINUX system contains any
misappropriated UNIX system source code must be decided. It is a
waste of judicial resources to have two district courts resolving
the same issue, especially when the first filed suit in Utah
involves the primary parties to the dispute.
c. Therefore, this case is stayed pending further
order of the court. The parties shall each submit a letter every
90 days as to the status of the Utah litigation. If, for any
reason, that litigation is not progressing in an orderly and
efficient fashion, the court may reconsider the stay.
_____Sue L. Robinson____________
United States District Court
 Project Monterey is a 64-bit UNIX-based operating system
for a new 64-bit Intel platform jointly developed by SCO, Intel,
and IBM. (D.I. 10, ex. A)