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Novell's Reply in Support of its Motion for SJ in WordPerfect antitrust litigation
Friday, January 01 2010 @ 10:40 PM EST

Novell has filed its Reply [PDF] in support of its Motion for Summary Judgment in Novell v. Microsoft, the antitrust litigation in Maryland regarding WordPerfect. Technically, it's Novell's Reply in Support of its Motion for Summary Judgment and Opposition to Microsoft's Cross-Motion for Summary Judgment. Here's that Cross Motion and here's Microsoft's Opposition [PDF] to Novell's motion. I'm sure you recall the mountain of exhibits both parties filed. [Microsoft's; Novell's.] It's complex in that both have filed summary judgment motions, and then Microsoft filed a cross motion in response to Novell's motion. But the themes are not complicated. Microsoft would like the court to accept its claim that Novell can't sue Microsoft over WordPerfect, that it sold its claims to Caldera, which then sued Microsoft and won a huge settlement, and in effect Microsoft is saying the Novell already got paid for any damage done, since it got a cut of the settlement.

Before we get to Novell's rebuttal, I wanted to highlight something. You'll never guess what one of the exhibits is: the email [PDF] from Bill Gates, subject line "Shell plans - iShellBrowser", that we found here also in doing our searchable collection of Comes v. Microsoft exhibits, a project that we are still working. It is Exhibit 46 [PDF] in the Novell v. Microsoft litigation now.

Please continue to help out with the Comes collection, so we can finish this project. As you can see, it's very worthwhile working to make the collection searchable, and there may be other nuggets hidden in the collection.

Here are the filings:

110 - Filed & Entered: 12/14/2009
Reply to Response to Motion
Docket Text: REPLY to Response to Motion re (102 in 1:05-cv-01087-JFM) MOTION for Summary Judgment, (104 in 1:05-cv-01087-JFM) MOTION for Summary Judgment filed by Novell, Inc.. (Attachments: # (1) Affidavit of Paul Graf, # (2) Affidavit of David Bradford, # (3) Affidavit of Stephen J. Hill, # (4) Affidavit of Alex Hassid, # (5) Exhibit 34, # (6) Exhibit 35, # (7) Exhibit 36, # (8) Exhibit 37, # (9) Exhibit 38, # (10) Exhibit 39, # (11) Exhibit 40, # (12) Exhibit 41, # (13) Exhibit 42, # (14) Exhibit 43, # (15) Exhibit 44, # (16) Exhibit 45, # (17) Exhibit 46, # (18) Exhibit 47, # (19) Exhibit 48, # (20) Exhibit 49, # (21) Exhibit 50, # (22) Exhibit 51, # (23) Exhibit 52, # (24) Exhibit 53, # (25) Exhibit 54, # (26) Exhibit 55, # (27) Exhibit 56)Associated Cases: 1:00-md-01332-JFM, 1:05-cv-01087-JFM(Johnson, Jeffrey)

111 - Filed & Entered: 12/14/2009
Notice (Other)
Docket Text: NOTICE by Novell, Inc. re (110 in 1:05-cv-01087-JFM) Reply to Response to Motion,,, Notice of Service of Lengthy Exhibits Associated Cases: 1:00-md-01332-JFM, 1:05-cv-01087-JFM(Johnson, Jeffrey)

Microsoft has alleged that Novell sold its claims regarding business applications to Caldera, and in turn that the settlement in Caldera v. Microsoft was in effect in settlement of those claims. It is true that Canopy paid Novell a portion. There was a breach of contract lawsuit Novell brought against Canopy for not paying what was agreed upon, which Novell won on summary judgment, and which Canopy appealed. Canopy argued that the contract was superseded by oral understandings, but it lost. Microsoft here is trying essentially, as I read it, to use Canopy's failed arguments to build its own argument. Here's the ruling from the Appeals Court, upholding the decision of the district court. Microsoft tries to argue this means Novell was part of that Caldera lawsuit, and that it was about business applications too. Here's how Novell refutes that allegation in this Reply:
Microsoft once told this Court that if allowed discovery on the issues presented by these cross-motions, Microsoft would show that Novell intentionally sold the present claims to Caldera. Microsoft claimed it would prove that when Novell agreed to assign its claims "associated directly or indirectly with any of the DOS Products or Related Technology," Novell had some "obfuscated" intent to include the separate claims associated with its application business.

Discovery is now over. All of the witnesses involved in the transaction between Novell and Caldera unequivocally reject Microsoft's proffer. Paul Graf, the attorney who represented Caldera in its acquisition of Novell’s DOS business and claims, states that Caldera never even considered acquiring Novell’s applications claims, and Novell certainly did not include those claims in the assignment. In Caldera, Inc. v. Microsoft Corp., and again in this action, Robert Frankenberg, Novell’s CEO at the time of the transaction, flatly rejected Microsoft’s assertion of a broad transfer of claims or any intent to transfer anything other than claims for harm to DR-DOS. David Bradford, who was Novell’s Senior Vice President and General Counsel, joins Mr. Frankenberg in testifying that Novell did not intend to assign the applications claims to Caldera. And Stephen Hill, an attorney who counseled Novell in preparing and assigning the DOS claims, and then represented Caldera in litigating the acquired claims, confirms that neither of his former clients intended to transfer the applications claims.

As a matter of law, Microsoft cannot pry from Novell, and force upon Caldera, a claim that neither of them intended to transfer. All of the defenses at issue rely on the false premise. Because Novell did not assign the applications claims, it is the real party in interest, and because its relationship with Caldera was limited to the assigned claims, Caldera’s settlement with Microsoft does not bar Novell’s prosecution of the unassigned applications claims. For these and other reasons shown below, the Court should strike Microsoft’s fourth (estoppel), fifth (waiver), twelfth (accord and satisfaction), thirteenth (res judicata), and fourteenth (collateral estoppel) affirmative defenses.

So that is what all these exhibits seek to demonstrate. I think you'll find this paragraph of interest too, as it will probably make you think of SCO's attempt to bring in various passersby to testify as to the intention of the parties in the APA between Novell and Caldera in 1995. Note the cases Novell here uses, because I have a feeling we might be seeing them again:
The Court has a “‘duty to enforce the intentions of the parties as expressed in the plain language of the [APA’s] covenants.’” Young v. Wardley Corp., 182 P.3d 412, 415 (Utah Ct. App. 2008) (citation omitted). The Court should determine the intent of the contracting parties by “first look[ing] to the writing alone.” Giusti v. Sterling Wentworth Corp., 201 P.3d 966, 975 (Utah 2009). The Court is to consider extrinsic evidence only if “the parties [to the contract] offer opposing interpretations that are reasonably supported by the contract’s language.” United States v. Dunn, 557 F.3d 1165, 1172 (10th Cir. 2009). With or without resorting to extrinsic evidence, the Court determines whether the APA is unambiguous as a matter of law. Giusti, 201 P.3d at 975. ...The APA excluded from transfer any “products or technologies,” such as Novell’s business applications, that were “not developed primarily as components of [the] DOS Products.”
See what I mean? Let's itemize the exhibits that Novell offers in support of its position in this Reply in the antitrust litigation, starting with the attorney affidavits:

The Paul Graf Affidavit - Graf was the attorney who represented Caldera in its purchase of DR DOS and of the related litigation claims from Novell. He states that Caldera bought only claims for injuries Microsoft caused to Novell's DR DOS business. WordPerfect, Quattro Pro, and GroupWise "were never discussed during the negotiations, and claims concerning these products were neither contemplated as part of the conveyance nor actually conveyed to Caldera," despite Microsoft's allegations otherwise. In fact, Graf was interviewed, he says, by a couple of Microsoft lawyers in the summer of 2008, and he told them that "Novell's claims for harm to its applications were never conveyed or even contemplated as part of the conveyance to Caldera," only "claims concerning harm to the DR DOS business". One of the Microsoft lawyers he was interviewed by is Steven Holley, who has submitted a Affidavit [PDF] in support of Microsoft's cross-motion, the document here refuted by Hill.

The Affidavit of David Bradford, formerly General Counsel for Novell, details how Novell viewed DOS and applications claims separately, that he suggested perhaps piggybacking them, but that was not done. This is in rebuttal to Microsoft's cross-motion for summary judgment and "to provide additional information to the Court about issues raised in Microsoft's brief, including the sale of Novell's DOS business and associated claims to Caldera". He states that the sale of DOS assets to Caldera included a potential antitrust claim against Microsoft for damage caused to DOS assets, but those assets "did not include any of Novell's business applications."

He also discusses what Caldera bought and its commitment as part of the transaction to pursue the antitrust claim against Microsoft for damage caused to the DOS business. Caldera was to pay royalties and a percentage of any recovery in the litigation. However, Bradford disputes Microsoft's contention that the language in the APA about claims "associated directly or indirectly" with DOS products transferring to Caldera included business applications like WordPerfect. Caldera was not in the applications business, he says, and he states the language referenced possible patent claims. Novell was not a party to the Caldera litigation against Microsoft, he adds, nor was it involved in settlement negotiations.

Stephen Hill's Affidavit also is to rebut certain assertions of Microsoft regarding an affidavit he provided in the Novell v. Canopy Group dispute, and like Bradford, to provide additional information to the court about the sale of DR DOS and associated claims to Caldera and Caldera's prosecution of those claims. He confirms Bradford's account about the separation between the DOS claims and the business applications claims. He was retained to analyze the DR DOS claim, but he says he never spoke with Bradford about the business applications claims, and when Caldera sued Microsoft, with Hill as one of the attorneys hired by Caldera, there was no inclusion of business applications in the complaint, "because Caldera did not own those businesses or claims associated with them". This all matters because Microsoft is alleging that the earlier antitrust case about DOS precludes Novell from now seeking relief for damages to WordPerfect, and it alleges that Caldera's prayer for injunctive relief for disclosure of APIs means Caldera acquired claims relating to Novell business applications, and Mr. Hill says that is not so. They asked for that relief, Hill explains, "because DR DOS had to support the same APIs as MS-DOS in order to be competitive." And he states that Novell never attempted to direct Caldera's litigation strategy or tactics. "Novell had no input or control over Caldera's settlement with Microsoft," he adds.

The Hassid Affidavit then lists all the other exhibits, telling us what they are, and I've added a bit more detail, for interest here and there. Note that the ones with a line through the number are not available digitally, having been filed in paper format due to length:

  • Exhibit 34: Relevant portions of the deposition of Robert Frankenberg in this case, dated March 25, 2009. [PJ: You see in this snippet the Microsoft lawyer trying to get Frankenberg to say that the contract between Novell and Caldera in its purchase of DR DOS and the claims associated with it actually was much broader. Frankenberg denies that the claims that went to Caldera were anything but those associated with DR DOS. It's actually, to me anyway, kind of funny watching the lawyer's persistence.]

  • Exhibit 35: Relevant portions of the deposition of Robert Frankenberg in Caldera, dated October 2, 1998. [PJ: He talks about the decision to sell of DR DOS and various estimates of what it was thought the litigation rights were worth.]

  • Exhibit 36: Copy of a draft complaint captioned Novell, Inc. v. Microsoft Corp. (D. Utah), dated April 1995.

  • Exhibit 37: Copy of a memorandum from David Bradford (Novell) to the Novell Board of Directors regarding "Microsoft - Legal Complaint in DOS Market," dated April 12, 1995. [PJ: Attached to the memo, it says, was a draft complaint showing "a proposed legal strategy to limit Microsoft's power (both current and future) and to obtain damages from Microsoft for their anti-competitive conduct as it relates to its monopolization of the desktop operating system market." The memo sets forth the pluses and minuses of going forward, and it mentions an offer to assign the DR DOS claim to a third party. The memo encourages the board to file an antitrust claim itself.]

  • Exhibit 38: Copy of a letter from Robert Frankenberg (Novell) to Bill Gates (Microsoft), dated June 23, 1995. [PJ: Letter is in response to one from Gates, in which the two are trying to see if various disputes can be resolved. "To the extent that Microsoft accomplished this [its monopoly] through superior products or business acumen, we have no argument. However, it is clear to Novell that Microsoft's dominant position has been achieved and maintained, in part at least, through conduct violative of the United States antitrust laws. This monopoly in desktop operating systems resulted in Novell eventually dropping DOS from its product line, causing substantial damage to Novell." The letter also mentions Microsoft leveraging its dominant OS position in the applications market. "It is our view that Microsoft's OS's contain undocumented calls, features, and other interfaces that are made available to its own applications developers to give competitive advantages to its applications products. The existence of such interface features constitutes among other things, a textbook example of monopoly leveraging. This has given Microsoft a leading share of the Word Processing and Spreadsheet markets, among others, resulting in a loss of $100s of millions of dollars a year to Novell. This point is further illustrated by Microsoft's refusal to fix certain bugs in Windows '95. It is my understanding that these bugs cause Novell applications to be incompatible with Windows '95 but allow Microsoft applications to run unaffected. Microsoft's OS interfaces constitute a resource, access to which is required in order to be able to compete in the market; Novell cannot duplicate those interfaces; Microsoft has denied them to Novell when it would be simple to reveal them." The letter also mentions the $15 per copy royalty Novell had to pay Microsoft back then every time Novell shipped a copy of "UNIX on the Intel Platform", suggesting it be eliminated. This is likely referring to the same Xenix contractual requirement that Santa Cruz eventually got the EU Commission to alter, which you can read about in this article, Santa Cruz to DOJ in '96 & EU in '97: MS forces us to pay royalties forever for their old Xenix code we don't want.]

  • Exhibit 39: Copy of a memorandum from David Bradford (Novell) to the Novell Board of Directors regarding "May 1, 1995 Meeting Regarding Microsoft," dated April 27, 1995. [PJ: The purpose of the meeting was to consider Novell's options regarding proposed litigation against Microsoft. One possibility was for infringement of Novell's copyrights in the NetWare Core Protocols. The second was "for Microsoft's monopoly in the desktop operating system".]

  • Exhibit 40: Copy of an email from David Bradford (Novell) to Robert Frankenberg (Novell) regarding "Purchasers for 'PerfectWorks' and 'Novell DOS,'" dated May 9, 1996.

  • Exhibit 41: Copy of a memorandum from Rob Hicks (Novell) to David Bradford (Novell) regarding the "Novell DOS Spin Off," dated April 23, 1996. [PJ: Handwritten notes express a worry that spinning off the litigation wouldn't help alleviate the board's concerns about negative reactions, including from Microsoft.]

  • Exhibit 42: Copy of a memorandum from Stephen Hill to David Bradford (Novell) regarding "DOS business - further thoughts," dated May 23, 1996. [PJ: There is a handwritten note giving reasons Novell decided not to pursue the antitrust litigation regarding DR DOS, one reason being "reaction from MS - retribution w/holding of data etc." and the consequent decision to sell the business. It notes various possibilities.]

  • Exhibit 43: Copy of a memorandum from David Bradford (Novell) to the Novell Board of Directors regarding the "Possible Antitrust Lawsuit Against Microsoft - Executive Summary," dated November 18, 1994. [PJ: The memo begins: "Novell faces a decision on what to do with several major antitrust cases it has against Microsoft." It recognizes the reluctance the board feels about going forward, but says "it is important to point out that the legal positions the Company holds are important corporate assets." It mentions that it gave up its legal position related to oppositions Novell had filed around the world to the Microsoft "Windows" trademark. It did that hoping Microsoft would "reciprocate" but they had not, he writes."We cannot let this conduct go unchecked....The truth of the matter is that Novell was seriously harmed by Microsoft's practices." The memo states that Microsoft's corporate goal was "the elimination of all competition in each and every software market in which it offers a product." Their executives had said so, he relates, and boasted about it. "Microsoft's persistent abnormally high profits testify to the firm's status as a monopolist.... Microsoft maintained its DOS monopoly despite the fact that it introduced no new versions or upgrades to MS DOS for a period of almost 5 years between 1986 and 1991. Microsoft made meaningful improvements to MS DOS only after DRI released DR DOS 5.0 in 1990. Were a jury to find against Microsoft in the desktop operating system monopoly they are very likely to piggyback their decision for the applications market as well. Duff Thompson once told me that in the first year Microsoft Word shipped on Windows and WordPerfect's word processing software did not, WordPerfect Corporation lost $250 million dollars." He estimates damages regarding WordPerfect at perhaps $1.5 billion. "Combined with the damages in the desktop O.S. market, Novell has damages which could well exceed $3 billion dollars."

  • Exhibit 44: Copy of the Rebuttal Expert Report of Ronald S. Alepin, dated July 27, 2009. [Filed in paper format.]

  • Exhibit 45: Copy of the transcript of oral argument on Microsoft's Motion to Dismiss Novell's Complaint, dated June 7, 2005. [PJ: At issue was whether Novell had waited too long to initiate this litigation.]

  • Exhibit 46: Copy of an email from Bill Gates (Microsoft) to others at Microsoft regarding "Shell plans - iShellBrowser," dated October 3, 1994. [PJ: This is the famous memo that I might call the smoking gun, "I have decided we should not publish these extensions."]

  • Exhibit 47: Copy of the Expert Report of Ronald S. Alepin, dated May 1, 2009. [Filed in paper format.]

  • Exhibit 48: Copy of Caldera's Consolidated Statement of Facts, dated April 28, 1999. [PJ: Filed in paper format due to length, but never fear. We have it already on Groklaw here and it's available as HTML here. Groklaw has a collection of documents from that Caldera v. Microsoft litigation here, if you are curious.]

  • Exhibit 49: Copy of relevant portions of the deposition of John Constant, Caldera, dated May 8, 1998. [PJ: Constant was a DRI guy, later with Novell when it was merged. He was involved in development of DOS Plus and DR DOS. He was one of the two lead engineers working on DR DOS 3.31, he relates.]

  • Exhibit 50: Copy of the relevant portions of the Declaration of John Constant before the FTC, dated January 11, 1992. [PJ: He gives a history of DR DOS and the competition between MS-DOS and DR DOS, and talks about the "industry recognition of DR DOS's excellence" and "predatory abuse of claimed incompatibility of DR DOS and Windows".]

  • Exhibit 51: Copy of the relevant portions of the Deposition of Steve Tucker, Caldera, dated July 16, 1997. [PJ: He is asked where development work was done for DR DOS 6.0 and who was responsible for fixing incompatibilities when they arose, and he answers Hungerford, UK.]

  • Exhibit 52: Copy of the Declaration of Richard Williams before the FTC, dated January 15, 1992. [Filed in paper format due to length. However, you might find his deposition from the Caldera litigation interesting to watch or listen to, just for fun. Williams is a former President and CEO of DRI. It's part of our Comes collection, because it was entered as testimony in that case. And Novell's Reply describes what he told the FTC, namely that by the spring of 1991, he concluded that DRI could not survive Microsoft's anticompetitive conduct: "I felt that my options were either to get out of this [DOS] market and find another market niche where we would not draw so much attention from MS, to try to go public, or to be acquired by a company that had the resources to better withstand these constant blows." ]

  • Exhibit 53: Copy of the Declaration of Richard Dixon before the FTC, dated January 11, 1992. [PJ: He talks about efforts to market DR DOS in Asia. Mentions "one of the most pervasive and damaging practices employed by Microsoft" as being CPU contracts, which "require the OEMs to pay a royalty to Microsoft for every computer they ship that includes a specified type of microprocessor, whether or not the computer is actually equipped with MS-DOS" locking MS-DOS customers into an "exclusive relationship" with Microsoft for periods of two or three years. He says prior to his experience seeing this in Asia, he had never seen "a contract of this kind," since software typically called for "per copy" or "per system" license. He tells that OEMs that refused CPU contracts were faced with a "significantly higher unit price" or other unattractive options, and he gives examples, like TriGem, Sun Moon Star, Acer, and Hyundai, and how this practice held DR DOS back. He also mentions the technical superiority of DR DOS.]

  • Exhibit 54: Copy of the relevant portions of the Deposition of Richard Dixon, Caldera, dated April 6, 1998. [PJ: He mentions getting fired by Ikon for a difference of opinion. Asked if he was the only one so fired, he says no, Darl McBride was also fired and seven or eight others.]

  • Exhibit 55: Copy of the Declaration of Roger G. Noll, dated May 1, 2009. [PJ: Filed in paper format.]

  • Exhibit 56: Copy of the relevant portions of the Deposition of Roger G. Noll in this case, dated September 10, 2009. [PJ: He is asked if PerfectOffice would pose a threat to Microsoft.]

Microsoft introduced several of these exhibits earlier, attached to the Declaration of Steven Holley, specifically 36, 37, 38, 39, 40, 41, 42, 43, but Novell places them here as well, because they match up with references in their Reply. The idea is to make sure the judge, or his law clerk, has everything before him or her while reading the Reply.

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