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Novell's Trial Brief
Friday, September 14 2007 @ 02:00 PM EDT

Novell has filed its trial brief. It's heavily redacted, which is always frustrating, but it's still full of interesting tidbits. Also, the trial is scheduled for Monday through Thursday only. From PACER:
09/14/2007 - 467 - TRIAL BRIEF [REDACTED] by Defendant Novell, Inc.. (Attachments: # 1 Exhibit 1 # 2 Exhibit 2)(Sneddon, Heather) (Entered: 09/14/2007)

09/14/2007 - 468 - NOTICE OF CONVENTIONAL FILING of Novell's Trial Brief [Filed Under Seal] filed by Defendant Novell, Inc. (Sneddon, Heather) (Entered: 09/14/2007)

A trial brief is where a party tells the court what claims it will be present at trial. It gives the judge an overview of the case. You could think of it as a kind of written, pre-trial opening statement, but to the judge. You've maybe seen opening statements to a jury on TV, where the lawyer tells the jury what happened and what it intends to prove, and this is similar but because it's for the judge, it's less dramatic. No pounding on the table.

SCO will file one too. In fact, it looks like Novell has read a draft of SCO's brief, because on page 20 of the PDF, Novell lists a couple of affirmative defenses SCO says in its trial brief it will raise, estoppel and unclean hands. Whoah! Unclean hands? Looks like we can expect some mud slinging at trial.

As Novell calmly points out, if SCO wanted to raise affirmative defenses, it should have done so earlier, during the summary judgment briefing. Novell doesn't even know what unclean hands it might be alleged to have, since SCO hasn't said anything specific. This is hilarious. Novell says that even if it was guilty of any wrongdoing, unclean hands doesn't apply "if it can be shown that [the plaintiff] is the one 'least at fault' and that the party against whom the relief is sought was guilty of wrongdoing in respect to the same matters and is 'most in fault'." I gather we can expect some down-in-the-dirt wrestling at trial, and Novell is letting SCO know that if it tries flinging mud at Novell to protect itself, it will certainly lose the "most in fault" part.

Here's a nice sentence: "Novell believes the evidence presented at trial will paint Novell's position as considerably more credible." Whoever wrote that was smiling, I expect. Novell also points out that SCOsource was all about SVRX copyrights, and SCO never claimed that any party infringed SCO's UnixWare rights, and so Novell says it's entitled to that revenue. We also find out why Novell has been stressing the issue of fiduciary duty in connection with the money from the SCOsource licenses and how to apportion it:

Novell acknowledges there is ambiguity in this picture. The law is clear, however, that as Novell's fiduciary and as the party at fault for introducing any apportionment ambiguity into the SCOsource licenses, SCO must bear the burden of apportionment and any doubts as to entitlement to particular licensing revenue must be decided against SCO.

Novell says the evidence it will present will demonstrate that "SVRX was at the heart of SCOsource" and it thus can't be that SVRX played only an "incidental" role. So while the amount might be ambiguous, the duty to pay Novell whatever the trial figures out is the right amount is not. And as I expected, Novell argues that because the court found SCO breached its fiduciary duties and was liable for conversion as a matter of law, "SCO is not entitled to any percentage of the SVRX Royalties and the Court should therefore make no 5% deduction from any restitution granted Novell". Oh, and it would like 7% prejudgment interest.

This trial is going to be a lot more interesting than I thought.

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