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To read comments to this article, go here
Novell on Gray's Amicus Motion: He isn't really supporting us, it's untimely & irrelevant - Updated
Thursday, April 30 2009 @ 11:12 PM EDT

Novell has filed a response to Wayne Gray's Motion asking if he can file an "amicus" brief. The introduction says it all:
Wayne Gray seeks leave to file an amicus brief. Gray seeks to do so to inject issues into this appeal that have no relevance to the dispute between SCO and Novell and that were not addressed by the district court’s decisions below. As the 855 pages of “attachments” to Gray’s amicus brief demonstrate, evaluation of Gray’s arguments would require extensive additions to the record, the majority of which was not even presented to the district court in this matter. In addition, though characterized as “in support of” Defendant-Appellee Novell, Gray’s position is in fact opposed to both Novell and SCO. His motion to file an amicus brief therefore should have been filed March 13, not April 20, and is untimely. For these reasons, Novell opposes Gray’s motion to file an amicus brief.
'Nuff said.

Here's the docket:
04/30/2009 Open Document [9655340] Response filed by Novell, Inc. to Wayne R. Gray's Motion for Leave to File Amicus Brief. Served on 04/30/2009. Manner of Service: clerk.

[ Update: I have stumbled across a New York Times article from 1993, reproduced in part here, that provides some background. I also found an X/Open press release from October 1993, posted to comp.std.unix, on the same topic of the trademark being under X/Open's stewardship. Note too that it says in the Q&A that from 1993 onward, Novell no longer controlled the APIs to UNIX. I take that to mean that it didn't have them to sell in 1995 to Santa Cruz, either. I'll place the full text of both after Novell's filing, after a double row of stars and then a triple.]

Here it is as text, the Novell filing, followed by the 1993 press release:

***************************

Appeal No. 08-4217

IN THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

THE SCO GROUP, INC.,

Plaintiff-Appellant,

vs.

NOVELL, INC.,

Defendant-Appellee.

On Appeal from the United States District Court
for the District of Utah
The Honorable Dale A. Kimball, Judge Presiding
(Case No. 2:04-CV-00139-DAK)

APPELLEE NOVELL, INC.'S OPPOSITION TO
WAYNE R. GRAY'S MOTION FOR LEAVE TO FILE AMICUS BRIEF


ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address]
[phone]
[fax]
MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
Grant L. Kim
David E. Melaugh
[address]
[phone]
[fax]

Attorneys for Defendant-Appellee NOVELL, INC.

INTRODUCTION

Wayne Gray seeks leave to file an amicus brief. Gray seeks to do so to inject issues into this appeal that have no relevance to the dispute between SCO and Novell and that were not addressed by the district court's decisions below. As the 855 pages of "attachments" to Gray's amicus brief demonstrate, evaluation of Gray's arguments would require extensive additions to the record, the majority of which was not even presented to the district court in this matter. In addition, though characterized as "in support of" Defendant-Appellee Novell, Gray's position is in fact opposed to both Novell and SCO. His motion to file an amicus brief therefore should have been filed March 13, not April 20, and is untimely. For these reasons, Novell opposes Gray's motion to file an amicus brief.

RESPONSE

I. GRAY'S AMICUS IS AN IRRELEVANT ATTEMPT TO
RE-LITIGATE SEPARATE ISSUES BEST LEFT TO THE
ELEVENTH CIRCUIT

Gray's amicus brief is a transparent attempt to relitigate unrelated issues he lost before another federal court, which are now on appeal before the Eleventh Circuit. Courts routinely reject amicus briefs by parties who are litigants in other cases and are merely attempting to re-litigate issues from such cases. See, e.g., American Satellite Co. v. United States, 22 Cl. Ct. 547, 549 (1991) (disallowing amicus brief by party who had already made claim, noting "courts have frowned

1

on participation which simply allows the amicus to litigate its own views or to simply present its version of the facts"); Fluor Corp. v. United States, 35 Fed. Cl. 284, 285-86 (1986) (similar). Thus, the federal district court in Dow Chemical Co. v. United States denied leave to file an amicus brief where (as here) the purported amicus was a party in "a separate lawsuit," who "ought not to be permitted to relitigate its own lawsuit" in another case. Dow Chemical Co., Case No. 00-CV-10331-BC, 2002 U.S. Dist. LEXIS 11657, at *3-4 (E.D. Mich. May 24, 2002).

As reflected in Novell and SCO's briefing, this appeal concerns: (i) who owns the UNIX SVRX copyrights; (ii) the extent of Novell's waiver rights concerning SVRX Licenses; and (iii) whether Novell is entitled to any of the royalties from SCO's SVRX License with Sun -- issues on which Gray admits he takes "no position." (GB4.) 1 In contrast, Gray's Florida litigation concerns the ownership of UNIX trademarks and a purported conspiracy between Novell, SCO and X/Open (not a party to this litigation) to conceal the true ownership of those trademarks. The UNIX trademarks in question were transferred from Novell to X/Open by way of a 1993 term sheet between Novell, X/Open, Digital, HP, IBM,

2

and Sun; a 1994 licensing agreement between Novell and X/Open; a 1996 confirmation agreement between Novell, SCO, and X/Open; and 1998 deed of assignment between Novell and X/Open. None of those agreements, nor any of the surrounding evidence, was presented to the Utah district court, as none had any relevance to the issues in dispute at the district court or on this appeal.

At bottom, Gray's amicus brief is an attempt to get this Court to "confirm" supposed Utah district court holdings that were not in fact part of that court's rulings in this matter and that are, in any event, irrelevant to the issues on appeal here. Gray's motion to file an amicus should be denied.

II. GRAY'S AMICUS BRIEF DOES NOT "SUPPORT" NOVELL AND IS
THEREFORE UNTIMELY

Gray characterizes his amicus brief as "in support" of Novell because, nominally, he "urges this Court to affirm the findings and conclusions of the Utah district court . . . ." (GB2.) On the contrary, Gray's proposed amicus brief makes clear he is antagonistic to both Novell and SCO, just as Gray is in his Florida litigation. (See, e.g., GB26 (accusing Novell of "widespread false representations").) Gray repeatedly accuses Novell and its representatives of withholding documents from the Florida and Utah district courts (GB24-28) and goes so far as to accuse Novell's in-house counsel of perjury (GB21-22). Because Gray "does not support either party," his brief was due within seven days of the

3

filing of Appellant's brief and is accordingly untimely and should be denied. Fed. R. App. P. 29(e).

CONCLUSION

For the reasons stated above, Novell requests that this Court deny Gray's motion to file an amicus brief "in support of" Novell.

Respectfully submitted on this 30th day of April, 2009.

ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address, phone, fax]

MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
Grant I. Kim
David E. Melaugh
[address, phone, fax]

s/ Michael A. Jacobs

Attorneys for Defendant-Appellee
NOVELL, INC.

4

CERTIFICATE OF SERVICE

I, Michael A. Jacobs, certify that on this 30th day of April, 2009, a true and correct copy of the foregoing APPELLEE NOVELL, INC.'S OPPOSITION TO WAYNE R. GRAY'S MOTION FOR LEAVE TO FILE AMICUS BRIEF was served via electronic mail to the following recipients:

Thomas T. Steele
Steele + Hale, P.A.
[address]

Counsel for Movant Wayne R. Gray

David Boies
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, PC
[address]

(cont.)

5

Devan V. Padmanabhan
DORSEY & WHITNEY LLP
[address]

Counsel for Plaintiff-Appellant The SCO Group, Inc.

Dated: April 30, 2009

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
[address, phone, fax, email]

6

CERTIFICATE OF DIGITAL SUBMISSION

I, Michael A. Jacobs, certify that no privacy redactions were necessary for this filing. This APPELLEE NOVELL, INC.'S OPPOSITION TO WAYNE R. GRAY'S MOTION FOR LEAVE TO FILE AMICUS BRIEF submitted in digital form is an exact copy of the written document filed with the Clerk. This digital submission has been scanned for viruses with the most recent version of a commercial virus-scanning program (using Symantec AntiVirus v.10.1.4.4, last updated April 25, 2009) and, according to the program, is free of viruses.

Dated: April 30, 2009

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
[address, phone, fax, email]

7

1 Citations to GB refer to Gray's "Brief Amicus Curiae for Wayne R. Gray," attached to Gray's Motion of Amicus Curiae Wayne R. Gray for Leave to File Amicus Brief.

8

****************************************************
****************************************************

Novell expected to open Unix to standard setters

Article Abstract:

Novell Inc is expected to announce Sep 21, 1993, that it is granting the X/Open industry consortium control of the Unix trademark and responsibility for developing a standard Unix specification until Sep 1994 or 1995. By doing so, Novell hopes to make Unix a truly open standard supported by a wide variety of interoperable operating systems, in contrast to Microsoft Corp's proprietary Windows NT. If computer vendors and purchasers are convinced an open Unix is on the way, they may select a product such as Novell's Unixware for their operating system needs instead of making themselves dependent on Microsoft alone. Maureen O'Gara, editor of the Unigram.X newsletter that broke the news, says Novell's X/Open agreement shows just how far Chmn and CEO Ray Noorda will go to defeat archrival Bill Gates's evil Microsoft empire and free the world from the spectre of Windows everywhere.

author: Fisher, Lawrence M.
Publisher: The New York Times Company
Publication Name: The New York Times
Subject: News, opinion and commentary
ISSN: 0362-4331
Year: 1993

********************************************
********************************************
********************************************

The following press release was sent out over the business wire on Monday October 11, 1993.

For Information:

X/OPEN CO., LTD.
[contact info]

FOR IMMEDIATE RELEASE

X/Open Receives UNIX Trademark From Novell

Furthers Freedom of Choice for Customers
Solidifies Industry Commitment to Unified UNIX Specification

TRENTON, New Jersey -- October 11, 1993 -- X/Open Company Ltd. today announced an agreement with Novell, Inc. (NASDAQ: NOVL) under which the UNIX trademark will be transferred to X/Open, the leading international open systems standards organization.

This agreement is solid evidence of the industry-wide commitment to deliver a single compatible UNIX specification to customers. It will increase users' choice of open systems suppliers that conform to pragmatic industry standards and enable software developers to market and maintain single UNIX product versions.

This agreement reinforces and extends the announcement made on September 1, in which 75 computer manufacturers and software developers agreed to adopt a common application programming interface specification, known as Spec 1170. This specification is based upon the UNIX operating system and added features, and will assure application portability across multiple systems architectures.

The registered trademark, UNIX, represents one of the assets transferred to Novell through its acquisition of UNIX System Laboratories (USL) on June 14, 1993, and was formerly the property of AT&T Bell Laboratories, where the UNIX operating system was developed in 1969. Also announced today, Novell, Inc. will join X/Open as a full shareholder and member of the X/Open board of directors.

Speaking at the announcement, X/Open president and CEO Geoff Morris said, "The market now has a single specification that ensures compatibility of all UNIX systems, governed by the quality and value represented by the X/Open brand. This agreement unifies the open systems industry around one UNIX specification and will eliminate the basic incompatibilities that previously existed between various UNIX implementations. The X/Open brand will provide users with a single specification that assures compatibility across all compliant systems throughout their organization."

In the future, all systems bearing the name UNIX will be tested and branded by X/Open, thus providing assurance of conformance and quality to the buyer. The UNIX trademark will be integrated into X/Open's wider open systems specifications which also address areas of system management, network management, and the desktop environment. The assurances guaranteed through the X/Open branding practices will allow UNIX to be better managed, better controlled and better protected than ever before.

By late 1994, X/Open will develop and implement this extension to the branding program which will include full test suites for conformance. UNIX system vendors have agreed to comply with this program in order to use the UNIX trademark. Software developers who create applications based upon Spec 1170 can have a high degree of confidence that their applications will run unaltered on systems from different vendors using the same microprocessor architectures. In addition, they will be able to run across multiple architectures with a simple recompile. In the past, applications frequently had to be rewritten to run on different systems.

"Novell acquired the UNIX operating system to help make it universal," said Ray Noorda, president and CEO of Novell, Inc. "We are transferring the UNIX trademark to X/Open because we believe an open systems standard cannot be owned by a single vendor. We also believe that a single specification with many implementations is essential to providing customers the variety of choices they want in building a networked computing environment that fits their specific needs. We are confident in the stewardship of X/Open as the new home for the UNIX trademark, and we are confident that the industry can work cooperatively to provide a strong open system alternative for the marketplace."

X/Open will make the UNIX trademark available immediately to vendors' products which are currently in conformance with XPG (XPG3 BASE or XPG4 BASE) and SVID (version 2 or 3), and are derived from USL operating system technology. Vendors meeting these criteria, committing to compliance with Spec 1170, and entering into a trademark agreement with X/Open, will be permitted to call their products UNIX. These suppliers will also be required to demonstrate compliance to Spec 1170 once test suites are available.

X/Open will manage and protect the use of the UNIX trademark in the interest of the industry. Users of the UNIX trademark will pay license fees to X/Open based upon volume of UNIX system products shipped. X/Open, founded in 1984, is a worldwide, independent, open systems organization dedicated to providing a unified path to open systems specification and implementation.

This unification is achieved through the close cooperation and integration of input from users, vendors, and standards organizations worldwide. The X/Open specification, which covers both interoperability and applications portability elements, is based on de facto and international standards. X/Open operates a test and verification process for products developed in line with its specification, and awards its brand as the mark of compliance.

# # #

X/Open and the "X" device are registered trademarks of X/Open Company Ltd. in the United Kingdom and other countries.

UNIX is a registered trademark, licensed exclusively by X/Open Company Ltd. ENDS

Q&A-------------------

Q1. How much will UNIX trademark licensees pay for use of the brand?

A1. X/Open will charge fees based on the volume of UNIX system products shipped. These fees are currently under consideration.

Q2. Has X/Open made any payment to Novell under this agreement?

A2. X/Open has made no payment. However, Novell is compensated by a 3-year Shareholder membership of X/Open and a 3-year royalty-free UNIX license.

Q3. Does this agreement mean that X/Open is breaking with tradition and effectively paying for technology?

A3. No. The specification for the UNIX operating system is defined by the Common APIs to UNIX-based operating systems specification, commonly referred to comprehensively supported in the industry and will be widely available in the market. Today's announcement concerns use of the trademarked brand name, UNIX.

Note: Spec 1170 represents the number of interfaces included in the complete operating system specification, comprising the existing XPG4 Base and the additional interfaces included in the "Common API" specification. "Spec 1770" refers to the combination of the Common API specification and XPG4 Base.

Q4. Will Novell continue to control UNIX?

A4. No. From today, the APIs which define UNIX will be controlled by X/Open and managed through the company's proven open industry consensus processes.

Novell will continue to own one product (a single implementation of UNIX) which currently conforms to the specification. Novell is clearly free to evolve that product in any way that it chooses, but may only continue to call it UNIX if it maintains conformance to the X/Open specifications.

Q5. Are there test suites available for UNIX, and if not, who will develop them?

A5. X/Open is now responsible for the development of test suites to measure 1170 conformance. A number of these suites currently exist within the X/Open Verification Suite family.

Q6. How will the future evolution of UNIX be managed?

A6. The future specification of the UNIX operating system will be managed under X/Open's proven procedures. This agreement allows for continued innovation through multiple compatible implementations of a single UNIX specification.

Q7. How does this agreement affect X/Open's current branding scheme?

A7. UNIX is now a single, branded set of operating system API specifications. This is complementary with other brand offerings from X/Open which address different market needs. This specification is entirely complementary with X/Open's branding policy.

Q8. Will the terms of the current UNIX license change?

A8. There will be no immediate changes in usage for current licensees. Companies using the name UNIX without a current license are advised to contact X/Open as soon as possible.

Q9. Is X/Open becoming purely a UNIX organization?

A9. No. X/Open specifications extend beyond the confines of the operating system to include security, data communications, data management and user interface. In addition to UNIX, other operating system technologies carry the X/Open brand.

Q10. Why does X/Open want to the keeper of the UNIX trademark?

A10. The addition of the specifications within Spec 1170, now governed by the UNIX trademark, is directly in line with X/Open's mission to deliver the benefits of open systems to the market because it further eliminates incompatibilities.

By using the recognized UNIX trademark and applying it to the widely supported Spec 1170, continued fragmentation may be reduced and with it confusion among users by assuring multiple, compatible implementations based on a single, accepted specification.

Q11. How will X/Open accommodate this new responsibility? What effect will it have on resources and priorities?

A11. X/Open is committed to the effective management of the UNIX trademark and will employ appropriate resources to do so. Current work programs within X/Open will not be affected. It is expected that the incremental revenues derived from management of the UNIX trademark will cover X/Open's additional costs.

Q12. Will customers now purchase the UNIX source code from X/Open?

A12. No, X/Open will now control the UNIX trademark only. Source code must be obtained from a vendor company. Those people who wish to use the Novell/USL source code in their implementation, will need to contact Novell/USL.


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