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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.

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