Now that they are preparing for the trial in Utah, we can get a hint of what SCO's position will be. This document in particular gives us some broad hints, Brent Hatch's Declaration in Support of SCO's Memorandum in Opposition to Novell's Motion for Summary Judgment on its 4th Claim for Relief [PDF]. I thought it was important to present it as text, because it will help us analyze better if we find all the documents we can. If you can lend a hand with that, it would be great, because I have a touch of the flu. If you find a url, leave it as a comment, and when I feel better, I'll put them into the article. Here's Novell's Motion for Summary Judgment on its 4th Claim for Relief for context. SCO filed its Opposition under seal, as you'll recall.
*************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone, fax]
David Boies (admitted pro hac vice)
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone, fax]
Devan V. Padmanabhan (admitted pro hac vice)
DORSEY & WHITNEY LLP
[address]
[phone, fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone, fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone, fax]
Attorneys for Plaintiff, The SCO Group, Inc.
_______________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC.,
a Delaware
corporation,
Plaintiff/Counterclaim-Defendant,
vs.
NOVELL, INC.,
a Delaware corporation,
Defendant/Counterclaim-Plaintiff.
|
DECLARATION OF BRENT O. HATCH
IN SUPPORT OF SCO'S MEMORANDUM
IN OPPOSITION TO NOVELL'S
MOTION FOR SUMMARY JUDGMENT
ON ITS FOURTH CLAIM FOR RELIEF
Case No. 2:04-CV-00139
Judge Dale A. Kimball
Magistrate Brooke C. Wells |
I, Brent O. Hatch, declare as follows:
1. I am a citizen of the United States, am over the age of 21, and am competent to
testify to the matters set forth herein.
2. I am an attorney at law duly licensed to practice before all the Courts of the State
of Utah, and an attorney with the firm of Hatch, James & Dodge PC, counsel for the
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., in the pending motion.
3. Attached as hereto and filed herewith are true and correct copies of the following
documents:
EXHIBIT DOCUMENT DESCRIPTION
1 Licensing Order Form between Silicon Graphics and Unix System
Laboratories, dated August 27, 1993, bearing Bates range SCO0984582-620
2 Unix System V History obtained from http://en.wikipedia.org/wiki/System_V
3 Excerpts from UnixWare Binder, titled " UnixWare 2 Sales Kit"
4 Excerpts from UnixWare Binder, Binder 2, titled "UnixWare 7 Sales Training
Kits.
5 Asset Purchase Agreement between The Santa Cruz Operation, Inc. and Novell,
Inc., dated September 19, 1995, bearing Bates range SCO1185893-990
6 Declaration of William M. Broderick in Support of SCO's Memorandum in
Opposition to IBM's Motion to Compel Production of Documents on SCO's
Privilege Log, dated October 21, 2005
7 Declaration of John Maciaszek, dated November 9, 2006
8 Excerpts from the Deposition Transcript of Christopher Sontag, dated March
14, 2007
9 Excerpts from Deposition Transcript of John Maciaszek, dated March 21, 2007
2
EXHIBIT DOCUMENT DESCRIPTION
10 Report and Declaration of Thomas A. Cargill, dated May 29, 2007
11 Declaration of William Broderick, dated December 11, 2006
12 Declaration of John Maciaszek, dated December 11, 2006
13 Declaration of Jean Acheson, dated December 11, 2006
14 Supplement and Licensing Order form between NCR Corporation (AT&T GIS)
and Novell, dated July 13, 1995, bearing Bates range SCO1499353-86
15 Supplement and Licensing Order Form between Unisys Corporation and Novell
Supplement 230, dated October 20, 1995, bearing Bates range SCO1039894-
925
16 Collection of e-mails among transition team, bearing Bates range
SCO1299938-82
17 Supplement and Licensing Order Form between Stratus Computer, Inc. and
SCO, dated March 17, 2007, bearing Bates range SCO0977706-36
18 Declaration of Christopher Sontag, dated December 11, 2006
19 Software Agreement between Alps Electric Company and Nihon SCO, dated
March 29, 1996, bearing Bates range SCO1042581-619
20 Supplement and Licensing Order Form between Unisys Corporation and SCO
Supplement 233, dated May 28, 1996, bearing Bates range SCO1040467-96
21 Supplement and Licensing Order Form between NCR Corporation and SCO,
dated March 31, 1997, bearing Bates range SCO0977740-71
22 Amendment Number 1 to the Asset Purchase Agreement, dated December 6,
1995, bearing Bates range SCO1186000-17
23 Excerpts from the Deposition Transcript of Joseph A. LaSala, dated February 8,
2007
24 Excerpts from the Novell 30(b)(6) Deposition Transcript of Gregory Jones,
dated May 10, 2007
3
EXHIBIT DOCUMENT DESCRIPTION
25 Excerpts from the Deposition Transcript of Jean Acheson, dated March 20,
2007
26 Excerpts from the Deposition Transcript of Theresa Dulin, dated April 13, 2007
27 Excerpts from the SCO 30(b)(6) Deposition Transcript of William Broderick,
dated May 14, 2007
28 Software Agreement Supplement between Unisys and AT&T Supplement 128,
dated January 30, 1990, bearing Bates range SCO1159013-26
29 Software Agreement Supplement between Unisys and Unix System
Laboratories Supplement 202, dated October 31, 1991, bearing Bates range
SCO1062340-74
30 Document titled, "Quarterly Royalty Amounts Reported by Unisys," bearing
Bates number NOV 000033013
31 Document titled, "Unisys Royalty Report for SCO UnixWare and UNIX
Systems," 2000, bearing Bates range NOV 000033527-32
32 Letter from B. Broderick to C. Lamont regarding Unisys agreements with SCO,
dated May 26, 1996, bearing Bates number NOV 000011393
33 Letter regarding software agreement between Unisys and SCO, dated June 25,
1996, bearing Bates range SCO1040448-50
34 Product Announcement for SCO OpenServer 6, dated May 27, 2004, bearing
Bates range SCO1672873-83
35 Software Agreement between SCO and AT&T Information Systems, Inc., dated
May 6, 1987, bearing Bates range SCO1449552-636
36 Excerpts from the Deposition Transcript of Alok Mohan, dated February 23,
2007
37 Article titled, "SCO to Seek Fees from Linux Users," dated January 14, 2003,
bearing Bates range SCO1265967-68
4
EXHIBIT DOCUMENT DESCRIPTION
38 Document titled, "OpenServer Release 6 Sales Guide," bearing Bates range
SCO1687209-31
39 Amendment to Software Agreement between IBM, Novell, and SCO (Buyout
Agreement), dated April 26, 1996, bearing Bates range NOV 000038339-42
40 Letter from A. Mohan to R. Frankenberg regarding SVRX licenses, dated
March 28, 1996, bearing Bates number SCO1234265
41 Letter from A. Mohan to R. Frankenberg regarding SVRX licenses, dated April
10, 1996, bearing Bates SCO1290675-76
42 Letter from A. Mohan to R. Frankenberg regarding proposed IBM royalty
buyout, dated April 19, 1996, bearing Bates range SCO1298086-87
43 Letter from A. Mohan to J. Tolonen regarding Novell-IBM Buyout, dated July
15, 1996, bearing Bates range NOV 000046904-05
44 Declaration of Lawrence A. Bouffard, dated November 8, 2006
45 Amendment Number 2 to the Asset Purchase Agreement, dated October 16,
1996, bearing Bates range SCO1451873-75
46 Press Release titled, "SCO Establishes SCOsource to License UNIX
Intellectual Property," dated January 22, 2003, bearing Bates range
SCO1277300-02
47 Document titled, "SCO System V for Linux Sales Guide Internal Use Only,"
dated February 25, 2003, bearing Bates SCO1537786-805
48 Document titled, "SCOsource Announcement," dated December 11, 2002,
bearing Bates range SCO1275727-46
49 Declaration of William M. Broderick, dated January 25, 2008
50 Letter from R. Tibbitts at SCO to Fortune 1500 Companies with UNIX
Licenses regarding violations of intellectual property rights in UNIX
technology, dated December 19, 2003, bearing Bates range SCON0047606-09
51 Declaration of Jean Acheson, dated January 25, 2008
5
EXHIBIT DOCUMENT DESCRIPTION
52 Press Release titled, "SCO Announces Intellectual Property License for Linux,"
dated August 5, 2003
53 Press Release titled, "SCO Establishes SCOsource; New Division Created to
Insure and Protect Intellectual Property in Linux Environments," dated
December 11, 2002, bearing Bates range SCO1270120-23
54 Press Release titled, "SCO Establishes SCOsource; New Division Created to
License and Protect UNIX Intellectual Property," dated December 11, 2002,
bearing Bates range SCO1270136-39
55 Press Release titled, "SCO Establishes SCOsource," dated December 11, 2002,
bearing Bates range SCO1270095-96
56 Declaration of John Maciaszek, dated January 24, 2008
57 Press Release titled, "SCO Registers UNIX Copyrights and Offers Unix
License," dated July 21, 2003
58 Declaration of Christopher M. Sontag, dated January 24, 2008
59 Press Release titled, "SCO Suspends Distribution of Linux Pending Intellectual
Property Clarification; Announces Greater Focus on UNIX and SCOx
Strategy," dated May 14, 2003, bearing Bates range SCO1269615-16
60 Excerpts from book titled, Novell's Guide to UnixWare 2
61 Document titled, "SCO forum 2003 SCOsource Update," bearing Bates range
NOV 000012724-50
62 Intellectual Property Compliance License for SCO Unix Rights between SCO
and Computer Associates International, dated August 11, 2003, bearing Bates
range SCON0048531-38
63 Document titled, "Price Book North America Price Book for The SCO Group
Software Products," dated August 2003, bearing Bates range SCO1551865-84
64 Intellectual Property Compliance License for Linux between SCO and Questar
Corporation, dated January 16, 2004, bearing Bates range QC00003-10
6
EXHIBIT DOCUMENT DESCRIPTION
65 Excerpts from the Questar 30(b)(6) Deposition Transcript of Steve Welker,
dated March 22, 2007
66 Declaration of Christopher Sontag, dated May 18, 2007
67 Technology License Agreement between Novell and The Santa Cruz Operation,
Inc., dated December 6, 1995, bearing Bates range SCO1186018-22
68 E-mail from G. Jones to D. Wright, et al., regarding SCO request for Novell
USL Documents, dated November 15, 2002, bearing Bates number NOV
000039586
69 E-mail from G. Jones to J. Lundberg, et al., regarding SCO request for Novell
UNIX Documents, dated November 20, 2002, bearing Bates number NOV
000039578
70 E-mail from G. Jones to C. Ledbetter, et al., regarding SCO Linux "Licensing"
Program, dated December 4, 2002, bearing Bates range Nov 000039579-80
71 E-mail from G. Jones to D. Wright regarding SCO Request for Novell UNIX
Documents, dated November 22, 2002, bearing Bates range NOV 000039591-
92
72 Excerpts from the Deposition Transcript of Gregory Jones, dated January 26,
2007
73 Excerpts from the Deposition Transcript of Darl McBride, dated March 27,
2007
74 Excerpts from the Novell 30(b)(6) Deposition Transcript of Joseph A. LaSala,
dated May 16, 2007
75 Release, License and Option Agreement between Microsoft and SCO, dated
April 30, 2003, bearing Bates range SCO1300033-46
76 Amendment 3 to Microsoft Release, License and Option Agreement with SCO,
dated July 21, 2003, bearing Bates range SCO1300028-29
77 Amendment 4 to Microsoft Release, License and Option Agreement with SCO,
dated July 31, 2003, bearing Bates range SCO1300026-27
7
EXHIBIT DOCUMENT DESCRIPTION
78 Amendment 1 to Microsoft Release, License and Option Agreement with SCO,
dated June 23, 2003, bearing Bates number SCO1300031
79 Amendment 2 to Microsoft Release, License and Option Agreement with SCO,
dated July 14, 2003, bearing Bates number SCO1300030
80 Software License Agreement between Sun Microsystems and SCO, dated
February 25, 2003, bearing Bates range SCO1287208-21
81 Software License and Distribution Agreement between Unix System
Laboratories and Sunsoft, dated March 17, 1994, bearing Bates range NOV
000011858-80
82 Excerpts from the Sun 30(b)(6) Deposition Transcript of Marc Hamilton, dated
July 23, 2007
83 Article titled, "Sun's Schwartz Speaks out on Linux, SCO (Interview)," dated
September 19, 2003
84 Clarification of License Grant to UnixWare and Openserver Drivers between
Sun Microsystems and SCO, dated April 29, 2003, bearing Bates range
SCO1605380-93
85 Product announcement for UnixWare Release 7.1.3, dated November 20, 2002,
bearing Bates range SCO1270099-110
86 Product announcement for SCO UnixWare Release 7.1.4, dated May 3, 2004,
bearing Bates range SCO1700830-44
87 Declaration of Andrew W. Nagle, dated January 25, 2008
88 Intellectual Property Assignment, dated May 7, 2001
89 Letter from C. Richard to J. Acheson regarding Sublicensed Product Royalty
Report, dated August 3, 2000, bearing Bates range NOV 000033626-30
8
4. I declare under penalty of perjury that the foregoing is true and correct.
Dated this 25th day of January, 2008.
__/s/ Brent O. Hatch____________
Brent O. Hatch
9
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and
correct copy of the foregoing was served on Defendant/Counterclaim-Plaintiff, Novell, Inc., on
this 25th day of January, 2008, electronically via the Court's CM/ECF system to the following:
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]
Michael A. Jacobs
Matthew I. Kreeger
Kenneth W. Brakebill
MORRISON & FOERSTER
[address]
10
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