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More Wayne Gray. No! Again? Still?! Yes. He Wants to Reopen Discovery in the USPTO Dispute
Friday, April 22 2011 @ 08:45 PM EDT

Even I finally got my bellyful of SCO. But there is yet one guy left who still can't get enough. And so it transpires that there are new developments in the never-ending trademark dispute that was initiated by X/Open in 2001 when Wayne Gray tried to trademark the mark INUX. If you recall, the dispute was put on ice back in the summer of 2010, pending resolution of Gray's civil litigation.

He lost. Big time. Now he's back at the USPTO's Trademark Trial and Appeal Board, filing a motion to reopen discovery there. Yes. He claims he has discovered "dispositive new evidence" from the SCO v. Novell trial, and he wants five more months of discovery to flesh it out.

Wayne, dude, I want to retire, already. Give it a rest, please.

I'm talking to the wrong guy, I expect. His lawyer is back, representing Gray once again. In the immortal words of Cee Lo Green, "WHY??? WHYYYY!!!???" Why are you not explaining to your client that rejected testimony is not "dispositive new evidence"? What is wrong with this picture?

You know what awoke this modern-day Javert? The fact-challenged and jury-rejected testimony of SCOfolk at the trial, all of which Mr. Gray apparently believes is true, despite the jury not accepting it at trial and SCO losing utterly:

This opposition, and the case Gray v. Novell, et al that was before the Florida District Court and Eleventh Circuit Appeals Court, mostly rely on the answer to two simple questions:

1. Did Novell lawfully own and transfer the UNIX trademarks, associated goodwill and its UNIX business to X/Open in November, 1998, as Novell and X/Open represented to the USPTO in the Novell-X/Open June, 1999 UNIX trademarks Assignment recordation?

2. If not (as the evidence now irrefutably confirms), was that false representation fraud upon the USPTO, and thus grounds for UNIX trademark cancellation?

The Florida District Court, and the Eleventh Circuit affirmed, that the answer is yes to the trademark ownership part of question #1 without considering lawful UNIX goodwill and business ownership, and with no availability to the Novell's and SCO's March 2010 sworn trial testimony, trial evidence and related documents.

Oh, lordy. Here we go again. Five more months? Let me guess. So SCO's appeal has time to be decided? Or maybe somebody behind all this wants more discovery on some point they didn't think of until now? Or maybe it's just that thinking too much about SCO can drive anyone stark raving mad?

You be the judge. Here's the file at the USPTO. The motion to reopen discovery [PDF] was filed March 24th, 2011, which X/Open opposes [PDF] on the grounds that while the appeal is over, there is still pending X/Open's requests at the district court and appellate level for further attorneys' fees. Gray was already ordered to pay some of X/Open's fees.

And it wouldn't be a Wayne Gray dispute without exhibits galore. Remember when he filed 855 pages of attachments to a proposed amicus brief he was eventually not allowed to file in the SCO v. Novell appeal, the first one?

Here are the rest of the filings this time, with some excerpts so you can get a handle on what this is all about now:

  • X/Open's Opposition:
    While the civil action that occasioned the suspension of the Board proceedings has been resolved in X/Open's favor (see copy of Eleventh Circuit's decision attached at Exhibit A), Applicant omits to mention in his notice that X/Open's motions for attorneys' fees are still pending before both the Florida district court and Eleventh Circuit Court of Appeals.

    On June 28, 2010, the Florida district court granted X/Open's entitlement to attorneys' fees incurred with certain pleadings of Applicant that "lacked substantial legal and factual support." On March 15, 2011, X/Open filed a memorandum supporting the amount of its requested attorneys' fees. Further, X/Open moved the Eleventh Circuit on February 11, 2011 for certain appellate attorneys' fees incurred with that appeal.

    As such, X/Open respectfully requests that the present proceedings remain suspended until such time as the Florida district court and Eleventh Circuit proceedings are disposed in their entireties.

  • Gray's Combined Motion and Brief to Resume the Opposition Proceeding and Reset the Schedule plus Exhibits 1-8:
    Applicant Wayne R. Gray (herein "Mr. Gray"), by and through his undersigned counsel, hereby moves to re-set the schedule in this opposition, and extend the time for discovery an additional five (5) months to enable Mr. Gray's introduction of dispositive new material evidence into this opposition. Grounds for this motion are given below. This opposition was suspended on July 17, 2007 pending final determination of a certain civil action before the United States District Court, Middle District of Florida, Tampa Division (herein "District Court") between the parties hereto, which case was styled Wayne R. Gray v. Novell, Inc., The SCO Group, Inc. and The X/Open Company Limited2 (herein Gray v. Novell et al.), and the suspension was extended for the related appeal before The United States Court of Appeals for the Eleventh Circuit (herein "Eleventh Circuit"). Those actions are now final, and Mr. Gray did not prevail.

    Basically, Mr. Gray has discovered dispositive new material evidence that was introduced in the case styled The SCO Group, Inc. v. Novell, Case No. 2:04cv00139, Utah Dist.. (herein "SCO v. Novell"). Because this new evidence was not available to the District Court or Eleventh Circuit Appeals Court, and because the District Court did not consider or rule on lawful UNIX goodwill ownership, Mr. Gray requests that this opposition proceeding be resumed and the discovery period reset to provide sufficient time to introduce the dispositive new material3....

    The Florida District Court did not consider or rule on who lawfully owned the UNIX business or goodwill associated with the UNIX trademarks in and after 1996....

    The March 2010 SCO v. Novell jury trial testimony includes admissions, evidence, and sworn statements by Novell and Santa Cruz (as SCO's predecessor in interest) executives, in-house counsel and outside counsel with first-hand knowledge of Santa Cruz's lawful UNIX trademarks ownership pursuant to the 1995 APA as amended, and SCO's continuing ownership at least to 2005. In their sworn testimony the witnesses unanimously agree and state that Novell and SCO have known since 1996 that Novell transferred its entire UNIX business, UNIX trademarks and associated goodwill to Santa Cruz in December, 1995 pursuant to the 1995 APA, and that Novell by non-compete contract terms was prohibited from remaining in or re-entering the UNIX business thereafter. They also testified that Santa Cruz/SCO’s continuing UNIX trademark rights ownership was required for it to operate its UNIX business. Thus, Novell and SCO, under oath, confirmed that all of X/Open's UNIX trademark and licensing representations and arguments in the Florida District Court and Eleventh Circuit Court, and here before the USPTO, are completely and flagrantly false. Mr. Gray's motion was denied on February 15, 2011, and thus this dispositive new material evidence of SCO's lawful UNIX trademark ownership in 2001 and X/Open's knowing and willful fraud upon the USPTO was not available to or considered by the federal courts....

    That testimony and documents make it irrefutably clear that both Novell and SCO never disputed, and stipulated to, in SCO v. Novell, the following: 1) Santa Cruz/SCO (not X/Open) lawfully owned Novell's entire UNIX business, and UNIX trademarks and associated goodwill after 1995 pursuant to the 1995 APA as amended; 2) Novell was specifically prohibited from remaining in or re-entering the UNIX business after 1995, and 3) Novell never lawfully owned and never intended to own the UNIX trademarks and/or associated UNIX goodwill after 1995.

  • Declaration of Wayne R. Gray in Support of Applicant's Motion to Resume the Opposition Proceeding and Reset the Schedule :
    5. Exhibit No. 1 to Mr. Gray’s Motion is a true and correct copy of certain relevant pages of the Tenth Circuit Appeals Court Ruling dated August 24, 2009, in the action styled SCO v. Novell, Appeal No. 08-4217, in the United States Court of Appeals for the Tenth Circuit.

    6. Exhibit No. 2 to Mr. Gray’s Motion is a true and correct redacted copy of certain relevant pages of the untitled Novell-X/Open May 10, 1994 Agreement, submitted to the court in the civil action styled Wayne R. Gray v. Novell, Inc., The SCO Group, Inc. and X/Open Company, Ltd. in the United States District Court for the Middle District of Florida Case No. 8:06-cv- 01950-T-33TGW (“Gray v. Novell, et al.”), to the Declaration of Evan Raynes (then counsel for Opposer herein) in Support of X/Open’s summary judgment motion as Dkt. No. 86-6. Also as X/Open document production therein as Bates Nos. UNIX 000029-UNIX 000051.

    7. Exhibit No. 3 to Mr. Gray’s Motion is a true and correct copy of certain relevant pages of the Novell-Santa Cruz UNIX Business Asset Purchase Agreement dated September 19, 1995 (“1995 APA”), submitted in Novell’s document production as Bates Nos. NOV-32-0000038 - NOV-32-0000094, in the action styled Gray v. Novell, et al. in the United States District Court for the Middle District of Florida Case No. 8:06-cv-01950-T-33TGW. Also as Exhibit No. 1 to Dkt. No. 260, as Bates Nos. SCO1185893-SCO1185949, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    8. Exhibit No. 4 to Mr. Gray’s Motion is a true and correct copy of Schedule 1.1(a) to the September 19, 1995 APA titled “Assets” submitted in Novell’s document production as Bates Nos. NOV-32-0000095 - NOV-32-0000098, in the action styled Gray v. Novell, et al. in the United States District Court for the Middle District of Florida Case No. 8:06-cv-01950-T- 33TGW. Also as Exhibit No. 1 (part 3) to Dkt. No. 260, as Bates Nos. SCO1185950- SCO1185953, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    9. Exhibit No. 5 to Mr. Gray’s Motion is a true and correct copy of Schedule 1.1(b) to the September 19, 1995 APA titled “Excluded Assets” submitted as Exhibit No. 1 (part 3) to Dkt.

    No. 260, as Bates Nos. SCO1185954-SCO1185955, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    10. Exhibit No. 6 to Mr. Gray’s Motion is a true and correct copy of certain relevant pages of Novell’s Seller Disclosure Schedule to the 1995 APA, with Attachment “C” titled “Trademark Status Report” and Attachment “G” titled “Seller Contracts Containing Business Related Rights which are Terminable in the Event of Acquisition,” submitted in Novell’s document production as Bates Nos. NOV-32-0000107 - NOV-32-0000133, in the action styled Gray v. Novell, et al. in the United States District Court for the Middle District of Florida Case No. 8:06-cv-01950-T-33TGW. Also as Exhibit No. 1 to Dkt. No. 260, as Bates Nos. SCO1185962-SCO1185988, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    11. Exhibit No. 7 to Mr. Gray’s Motion is a true and correct copy of the December 6, 1995 Bill of Sale to the 1995 APA. Also Exhibit No. 3 to Dkt. No. 260, as Bates No. SCO1185881, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    12. Exhibit No. 8 to Mr. Gray’s Motion is a true and correct copy of the October 16, 1996 Amendment No. 2 to the 1995 APA, submitted in Novell’s document production as Bates Nos. NOV-32-0000154 - NOV-32-0000156, in the action styled Gray v. Novell, et al. in the United States District Court for the Middle District of Florida Case No. 8:06-cv-01950-T-33TGW. Also Exhibit No. 5 to Dkt. No. 260, as Bates Nos. SCO1451873-SCO1451875, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    13. Exhibit No. 9 to Mr. Gray’s Motion is a true and correct copy of certain relevant pages of the SCO pleading titled “Memorandum in Opposition to Novell’s Motion for Partial Summary Judgment on SCO’s Noncompete Claim in its Second Claim for Breach of Contract and Fifth Claim for Unfair Competition” dated May 18, 2007. As Dkt. No. 301, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    14. Exhibit No. 10 to Mr. Gray’s Motion is a true and correct copy of the December 6, 1995 Technology Licensing Agreement between Santa Cruz and Novell (TLA”), and associated with the 1995 APA, as Exhibit No. 4 to Dkt. No. 260, as Bates Nos. SCO1186018-SCO1186022, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    15. Exhibit No. 11 to Mr. Gray’s Motion is a true and correct redacted copy of the Novell-Santa Cruz-X/Open September, 1996 Confirmation Agreement, submitted to the Declaration of Evan Raynes in Support of X/Open’s summary judgment motion as Dkt. No. 86-9, in the action styled Gray v. Novell, et al. in the United States District Court for the Middle District of Florida Case No. 8:06-cv-01950-T-33TGW. Also as X/Open document production therein as Bates Nos. UNIX 000132-UNIX 000135.

    16. Exhibit No. 12 to Mr. Gray’s Motion is a true and correct certified copy of certain relevant pages of the March 9, 2010 SCO v. Novell jury trial transcript, as Dkt. Nos. 855-2, 856 and 856-1, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    17. Exhibit No. 13 to Mr. Gray’s Motion is a true and correct copy of the “Declaration of [Novell General Counsel] David Bradford,” as Dkt. No. 279, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    18. Exhibit No. 14 to Mr. Gray’s Motion is a true and correct copy of the September 18, 1995 Novell Board of Director Meeting Minutes, as Exhibit A to “Declaration of Kellie Carlton in Support of Novell, Inc.’s Motion to Dismiss,” as Dkt. No. 57 (Exhibit A), in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah. Also as Exhibit No. Z3 in the SCO v. Novell March, 2010 jury trial, entered into evidence on March 9, 2010.

    19. Exhibit No. 15 to Mr. Gray’s Motion is a true and correct copy of certain relevant pages of the Novell pleading titled “Memorandum in Support of Novell’s Opposition to SCO’s Motion for Partial Summary Judgment on SCO’s First, Second, and Fifth Causes of Action and for Summary Judgment on Novell’s First Counterclaim,” filed May 14, 2007 as Dkt. No. 292, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    20. Exhibit No. 16 to Mr. Gray’s Motion is a true and correct certified copy of certain relevant pages of the March 10, 2010 SCO v. Novell jury trial transcript, as Dkt. Nos. 857, 857-1 and 857-2, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    21. Exhibit No. 17 to Mr. Gray’s Motion is a true and correct copy of Novell Worldwide Sales Director of UNIX Products Mr. Larry Bouffard’s email dated October 18, 1995. Available at SCO’s official web site at URL - http://www.sco.com/company/legal/update/Bouffard.pdf (last viewed March 24, 2011).

    22. Exhibit No. 18 to Mr. Gray’s Motion is a true and correct certified copy of certain relevant pages of the March 11, 2010 SCO v. Novell jury trial transcript, as Dkt. Nos. 858, 858-1 and 858-2, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    23. Exhibit No. 19 to Mr. Gray’s Motion is a true and correct certified copy of certain relevant pages of the March 12, 2010 SCO v. Novell jury trial transcript, as Dkt. No. 859, 859-1, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    24. Exhibit No. 20 to Mr. Gray’s Motion is a true and correct certified copy of certain relevant pages of the March 23, 2010 SCO v. Novell jury trial transcript, as Dkt. Nos. 866, 866-1 and 866-2, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    25. Exhibit No. 21 to Mr. Gray’s Motion is a true and correct copy of SCO’s August 3, 2005 “Response to Office Action” letter to the USPTO. USPTO certified document.

    26. Exhibit No. 22 to Mr. Gray’s Motion is a true and correct certified copy of certain relevant pages of the March 25, 2010 SCO v. Novell jury trial transcript, as Dkt. No. 868, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    27. Exhibit No. 23 to Mr. Gray’s Motion is a true and correct certified copy of certain relevant pages of the March 26, 2010 SCO v. Novell jury trial transcript, as Dkt. Nos. 869 and 869-1, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    28. Exhibit No. 24 to Mr. Gray’s Motion is a true and correct copy of certain relevant pages of Santa Cruz’s antitrust complaint dated January 31, 1997, Santa Cruz v. Microsoft, entered into evidence as Exhibit No. 127 in the SCO v. Novell jury trial on March 15, 2010, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah. Available at SCO’s official web site (last viewed March 24, 2011) at URL - http://www.sco.com/company/legal/update/Microsoft%20Complaint.pdf .

    29. Exhibit No. 25 to Mr. Gray’s Motion is a true and correct copy of certain relevant pages of the SCO memorandum titled “SCO’s Memorandum in Support of its Renewed Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial,” filed April 27, 2010 as Dkt. No. 872, in the action styled SCO v. Novell, Case No. 2:04cv00139, in the United States District Court for the District of Utah.

    30. Exhibit No. 26 to Mr. Gray’s Motion is a true and correct copy of certain relevant pages of SCO’s June 20, 2007 response to Mr. Gray’s First Request for Admissions, in the action styled Gray v. Novell, et al., in the United States District Court for the Middle District of Florida, Case No. 8:06-cv-01950-T-33TGW.

  • Exhibits 9-11
  • Exhibits 13-15, 17
  • Exhibits 21, 24-26
  • Exhibits 12, 16, 18-20, 22, 23
  • Motion for Protective Order; Proposed Order:
    COMES NOW applicant Wayne R. Gray, by and through his undersigned counsel, and moves for entry of a protective order on the following grounds.

    As mentioned in Applicant’s Motion to Resume and Reset filed recently in this matter, there are confidential documents in existence (but not yet in evidence in this opposition) which have a very significant impact with respect to ownership of the UNIX trademark, upon which Opposer bases its opposition. Two of those documents are known as the September 1996 Confirmation Agreement (unredacted), and the May 10, 1994 Novell-X/Open Agreement (untitled). Applicant has received said Confirmation Agreement in discovery in this matter, but it has not yet been entered into evidence due to the lack of a suitable protective order. The May 10, 1994 agreement has been requested in discovery from Opposer, but has not yet been furnished. It is believed that other important documents of a confidential nature also exist which have not yet been furnished in response to Applicant’s discovery requests.

Wait. He requested the May 10, 1994 agreement and it has not been furnished? How then did he attach it as Exhibit 2? And as an exhibit to his motion to file an amicus brief in the first appeal of SCO v. Novell back in 2009? Seriously. It's attached as one part of Exhibit 1. I have never highlighted it on Groklaw, even though it's a redacted copy, because it's my understanding that it's still subject to a protective order. Man. Oh. Man. Now what do I do? It's stamped Confidential. He keeps filing this, and it's not filed under seal. And then he complains he can't get it?

And if you read it, it says the trademark will be licensed for a year and then Novell will assign it to X/Open thereafter, and on page 10 it says it could be "earlier or later" than one year, and with the assignment subject to there being no material adverse tax consequences "or other material incremental costs" to Novell. And it adds that Novell agrees it will only use the mark on new products that meet "the Quality Criteria except, as described in sub-clause (i) above, for UnixWare and its subsequent releases." But note that on page 10, Novell retained the "rights to enforce such license in the event of misuse" by licensees.

I don't know if anyone has noticed, but the document was signed by executives at X/Open and UNIX Systems Laboratories, not Novell.

Some background for you: When Novell bought Unix in 1993, not everyone was thrilled at the idea that one company would control Unix. So to try to make it more acceptable, Novell let it be known that it would transfer control of the trademark to X/Open. Here's the abstract of a NY Times article you can buy if you wish to confirm it, at the link:

Having acquired Unix Systems Laboratories from AT&T in Jun 1993, Novell owns both the Unix trademark and the original Unix technology. Based on a Unigram.X newsletter report, the industry had expected Novell to announce it was furnishing Unix gratis to the X/Open Inc industry consortium so that it could develop an open Unix standard. Chmn and CEO Ray Noorda says Novell continues to negotiate with X/Open, and will work with other vendors to find a common foundation for all Unix versions.
And that is exactly what Noorda did. Here's the abstract of another 1993 NYTimes article:
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.
As you see, some old pennies are showing up, mocking anyone who isn't in love with Microsoft. And here's the 1993 X/Open press release announcing the gradual turning over of APIs and the UNIX trademark to X/Open. Notice that all the documents indicate that X/Open would need to develop some things in order for the transfer to happen. And it was a bit open-ended for that reason. And that will help you to understand this language in the 1995 APA between Santa Cruz and Novell, in the Schedule listing Novell's assets:
Trademarks UNIX and UnixWare as and to the extent held by Seller (excluding any compensation Seller receives with respect of the license granted to X/Open regarding the UNIX trademark).
Obviously, its ownership was encumbered due to the prior deal with X/Open. For some reason that I can't figure out, Gray insists that none of the above is so, that Santa Cruz got all the trademarks. Here's the report on the hearing in 2009 on his motion to lift the bankruptcy stay and force SCO to join the Florida action he eventually lost, a motion that was denied. Here are my notes on the audio from the hearing, and I discussed the 1994 and later agreements in that article, with zillions of links to evidence that to me demonstrated that Gray's assertions are off-base. Here's a chunk of it:
Wait until you hear what happened with the Wayne Gray motion to lift the stay. The problem is that when lawyers tell fibs or seriously redacted stories, shall we politely say, to courts or government agencies, down the road some donkey will ride into court on their fibs, claiming it's the God's honest truth. It simply *must* be true, because the lawyers said so, and to a *government* agency.

Yes, friends, the Gray attorney tells the court that because SCO told the USPTO in August 3, 2005 that it owned the UNIX and UnixWare trademarks, it is *undisputed* that they do own them. Here is that letter, four pages as four PDFs, one per page:

Page 1
Page 2
Page 3
Page 4
Novell, according to Gray, transferred everything to Santa Cruz in the 1995 APA, and SCO never transferred the trademarks back to Novell after 1995, so it couldn't assign them to X/Open in 1998, as claimed, and so the judge should somehow make SCO go to Florida and fight for the trademarks.

Excuse me, sir, but did you forget to tell the judge that the marks were very much disputed and that in the end SCO didn't get the marks, despite telling the USPTO some very odd things, that I and the rest of planet Earth would view as inaccuracies or at least only part of the story? And did you fail to point out that the 1996 assignment was a three-way document referencing an earlier 1994 agreement promising the trademarks to X/Open, and that the 1998 document was one that SCO, Santa Cruz, itself signed? 1996 comes after 1995 in the Gregorian calendar, last I checked, so I believe this paragraph from page 3 of the 1996 document is pertinent:

5. This Agreement supersedes all prior agreements, arrangements and understandings among the parties and, together with any relevant portions of the 1994 Agreement that are not inconsistent with this Agreement, constitute the entire understanding among the parties relating to the subject matter of this Agreement. No addition to or modification of any provision of this Agreement shall be binding on the parties unless made by a written instrument signed by a duly authorized representative of each of the parties.
I read that as saying that this agreement, which Santa Cruz signed in 1996, is the one to go by, not the 1995 APA, with respect to the trademarks. You'll find the document and the 1998 Novell/X/Open confirmation referenced in Gray's attachments [PDF] to his motion to lift the stay, attachments 1 and 2.

You know what Gray claimed when he saw that document? That it was a forgery, backdated. But Fatell read at the hearing what the Florida court wrote on that point, that Gray submitted no evidence at all to support such a claim. From the agreement we learn that the 1995 APA conveyed Novell's "entire right, title and interest in and to the UNIX trademarks to SCO, subject to rights and obligations established in a May 14, 1994 Novell-X/Open Trademark Relicensing Agreement, as amended... with the exception of non-assignable agreements and any compensation received by Novell from X/Open pursuant to the 1994 Agreement". Well. That explains the language in the APA, doesn't it? There is no "whole kit and kaboodle" in this language. There were restrictions. But here's the kicker:

WHEREAS, pursuant to the 1994 Agreement, X/OPEN is entitled to receive, subject to certain conditions not relevant here, full ownership of the UNIX trademark as of May 14, 1997.
The parties go on to say they want to accelerate the vesting of title in X/Open and the assignment to SCO only of Novell's rights under the 1994 agreement. So Santa Cruz never got the trademarks, just Novell's lingering rights with respects to them during the transition to X/Open, which definitely was promised the complete ownership in 1997, if conditions were met, which evidently they were.

So the next paragraph makes clear that Novell is said in the language to be "considered the owner of legal title" for the purpose of the acceleration. It doesn't say Novell *is* the owner in 1996. Gray makes much of this language, but I don't think he understands it. This is a document to hurry up what was already agreed to, that's all, and so they are going back to the original agreement, so to speak, when Novell was the title holder, and redoing the agreement to hurry things along. Here's the actual language:

NOW, THEREFORE, for appropriate consideration, the adequacy and sufficiency of which are acknowledged, the parties agree as follows:

1. At the request of X/OPEN, NOVELL shall, as soon as possible after the date of execution of this Agreement, execute appropriate assignment document(s), to be prepared by X/OPEN, formally transferring to X/OPEN the legal title to the UNIX trademark. As among NOVELL, SCO and X/OPEN, and notwithstanding any prior understandings to the contrary, NOVELL shall for this purpose be considered the owner of legal title to the UNIX trademark and shall execute such assignment document(s) as assignor. SCO agrees that notwithstanding the fact that NOVELL will be executing such assignment document(s) after the Closing Date established by the APA, such assignment by Novell shall not be considered a breach of NOVELL's obligations under the APA. X/OPEN acknowledges and confirms that, as of the date of execution of such assignment document(s) ("Assignment Date"), it will be solely responsible for all expenses and fees incident to the protection and enforcement of the UNIX mark, including but not limited to expenses of seeking, obtaining and preserving registration of same, and the expenses of transferring existing registrations into the name of X/OPEN; provided, however, that with respect to any document that is required to be executed by SCO to perfect X/OPEN's title to such mark after such assignment, SCO shall execute such document without cost to X/OPEN.

Could it get any clearer who was to get title to the trademarks? So why is Gray persisting? Let's take a closer look. As it happens, Groklaw covered the trademarks disputes in some detail at the time, and since we are trying to create a complete history of SCO's litigations, let me put everything we know about those trademarks right here in one place. That won't stop future or present story tellers hoping to make a buck by confusing judges, but at least those who really are interested in the truth will be able to find a complete narrative of what really happened. It's long. Truth usually is shorter and simpler; convolution generally indicates there is magic in the air, and someone would like you to look at anything but what is up their sleeve. That's my impression, anyhow.

So, for historians someday, not to mention future successors-in-interest, let's put here all the links to documents filed by Wayne Gray so far in the various litigations. I'll be taking the material from our Timeline pages, which have all the documents we've obtained from PACER over the years in all the cases we have covered, and from our articles over the years. We only put on the Timeline pages documents from PACER unless otherwise marked. The latter is very rare, things from the earliest days, like as an example, Red Hat's complaint. We later got it from PACER also, and both are now on the Red Hat Timeline page. I mention this so any new people will know the care we've taken to make sure our collection is accurate.

Here is the link to the USPTO, so you can do your own searches and try to prove me wrong, if you feel like trying, or just want to verify for yourself. Verification is always a good thing, actually, which is why I always provide links to the data I have used to reach whatever conclusions I have, so you can decide for yourself. Here, then, are the filings, separated into the various litigations.

In the SCO v. Novell Appeal

If you recall, Gray tried to intervene in the appeal in SCO v. Novell, seeking permission to file an amicus brief, which was denied:

  • 9652158 - April 20, 2009 - Motion for leave to file an amicus brief filed by Movant Wayne R. Gray. Served on 20-Apr-2009. Manner of Service: email. [Groklaw article]
  • 9652159 - 20-Apr-2009 - Amicus brief received from Wayne R. Gray but not filed (pending ruling on motion to become amicus). Served on 20-Apr-2009. Manner of Service: email. [Groklaw article]
  • 9652345 - April 21, 2009 - Order filed by Clerk of the Court response to motion to become amicus. Response due on 05-May-2009 for SCO Group. Served on 21-Apr-2009. [Groklaw article]
  • 9654117 - April 23, 2009 - Appellant's reply brief filed by SCO Group. Original and 7 copies. Served on 23-Apr-2009. Manner of Service: email. [Groklaw article; text]
  • 9655340] - April 30, 2009 - Response filed by Novell, Inc. to Wayne R. Gray's Motion for Leave to File Amicus Brief. Served on 30-Apr-2009. Manner of Service: clerk. [Text]
  • 9655989 - May 04, 2009 - Response to Motion for leave to become amicus filed by SCO Group. Served on 04-May-2009. Manner of Service: email. [Groklaw article]
  • 9656977 - 06-May-2009 - Response filed by Wayne R. Gray to Appellee Novell, Inc.'s Opposition to Wayne R. Gray's Motion [9652158] for Leave to File Amicus Brief and Appellant's Response to Wayne R. Gray's Motion for Leave to File Amicus Brief in Support of Defendant/Appellee Novell, Inc.. Served on 06-May-2009. Manner of Service: email, clerk.
  • 9660271 - May 18, 2009 - Motion filed by Movant Wayne R. Gray for entry of order either releasing audio recording of oral argument or releasing a certified transcript of oral argument. Served on 18-May-2009. Manner of Service: US mail. filed by Wayne R. Gray. Original and. Served on 18-May-2009. Manner of Service: US mail. [Groklaw article]
  • 9660359 - May 19, 2009 - Order filed by Judges Lucero, Baldock and McConnell Denying Movant Wayne R. Gray's request for an order requiring release of the court's oral argument recording for this matter, or in the alternative Mr. Gray seeks release of a certified copy of the transcript. See 10th Cir. R. 34.1(E). Served on 19-May-2009. [Groklaw article]

There is more on the complete Timeline page, but these are the ones regarding Gray. You'll note that while the appellate court asked SCO to respond to the Wayne Gray motion for leave to file an amicus brief, and it did, as did Novell, with a reply from Gray, the court never ruled on the motion as far as the public can determine. So there's no amicus brief reflected on that docket, as Fatell pointed out at the hearing. Perhaps something was said at the oral argument in the appellate court, but we don't have that information, because that appeals court doesn't let you have the transcripts of hearings in the normal course. Weird. They were definitely on the fast track on SCO's request for speed, shall we say. So that string was not tied off.

Gray's attorney claimed at the hearing that in fact the court did allow Gray to file an amicus brief, which "it carried with it" throughout the proceedings and then ultimately denied. Look at the dates. Did you notice that Gray only filed his response to Novell on May 6? That is the date of oral argument in the appeals court. So did Gray really file an amicus brief that was carried along throughout? It's conceivable, but why isn't it on the docket then? I notice an entry that says that an item was removed from the docket on May 18, but I don't know what it was. What do you think really happened? Isn't the public supposed to have access to what courts are doing?

Gray's Florida Litigation, Gray v. Novell, Inc., The SCO Group, Inc. and X/Open Company Limited

Now here's what we have from the Florida litigation, in Florida Middle District Court, Tampa Division, Case No: 8:2006cv01950:
  • Justia's docket - free access
  • Order tossing out all 11 claims in Gray's complaint and denying Gray's summary judgment motion. [Text.]

The SCO Failed Attempt to Claim the Trademarks

Now, here's what we covered in the trademark dispute, and yes, there was a dispute, one that SCO lost:
  • SCO applies for the mark Unix System Laboratories in 2004.
  • A Trademark Tale, February 17, 2006, SCO's letter to the USPTO, claiming that that USL "is now part of the Applicant," meaning part of SCO, and that is why SCO deserves the trademarks, three of them, UNIX, UnixWare and USL. The article walks you through the real history, as the rest of the world but SCO knows it, in detail. It's significant, in that the very claim that Gray says "proves" SCO owns the marks UNIX and UnixWare is the same claim that didn't work out for SCO in trying to get the marks. They claimed ownership, but the USPTO disagreed.
  • The final denial of SCO's application [PDF] by the USPTO on September 12, 2005
  • The TARR page showing the chain of events, with links, leading to SCO's failure to respond timely to the letter of denial, thus making the USL mark abandoned. It had six months to do so, but it never responded at all. It's easy to make a claim. It's proving it that is hard.

SCO already fought for the marks and had to retreat under fire, giving up the field. By 2007, it knew it didn't own the marks, and that the USPTO had so ruled. Gray complained at the hearing that it was possible bankruptcy fraud for SCO not to put the trademarks on its bankruptcy schedules as assets. It would have been fraud maybe if it had included them, but not failure to do so, I wouldn't think.

The Gray attorney kept saying at the hearing that the 1998 Confirmation Agreement was no good because Novell had no rights to confirm, having given them away in the 1995 APA. But that isn't at all what the history showed, according to X/Open. I'll repeat here some of the material from our 2006 article, when this all came out:

Now, when the USPTO sent its final letter of denial, it referenced some trademarks they show as belonging to The Open Group, which I think SCO also had every reason to know about by August of 2005. And that brings us to an intriguing subplot and some answers to some mysteries.

4. The iNUX Trademark Opposition

You'll remember that when SCO first applied for the USL trademark we dug up a case between X/Open, now called The Open Group, and a guy in Tampa, FL, named Wayne Gray. Back in 2001, Gray wanted the trademark iNUX to use on a purportedly Linux-based operating system he said he wanted to sell. I say purportedly because I can't find any such operating system in existence, and even the website speaks of it in the future tense. The Open Group opposed his application, and for a while, it seemed to be a normal opposition process. Then, after SCO started claiming it owned UNIX in various courts, it got really interesting because this supposed "Linux" person vigorously used SCO's court claims to try to "prove" that SCO is the rightful owner of the UNIX trademark, not the Open Group. I wrote to him in 2004 to ask him what was up, but to date I have received no reply. I finally concluded that it's just another in a line of lone-gunman litigants who have shown up just happening to want precisely what SCO wants.

After SCO filed its claims against IBM and Novell, the fellow started using SCO's legal filings and SCO's arguments to buttress his own claims. And he started asking for an enormous amount of discovery. And here's the thing I found interesting: he subpoenaed not only The Open Group but Novell and SCO too. I found 284 pages of discovery requests for documents. He even asked for documents concerning the USL v. BSDi lawsuit.

For a while, it seemed to be helping him to file SCO's court claims as exhibits, and the USPTO tends to give lone litigants more than the usual patience anyway, I imagine. The most recent notation on the docket on the case is February of 2005, saying that proceedings were suspended pending a ruling on a motion which still has not been decided. They're probably doing what I've been doing, trying to understand this whole UNIX mess.

Gray is asking the USPTO to take the UNIX marks away from Open Group. Gray claims SCO got all the IP in the Novell to Santa Cruz and the SCO to Caldera transfers, and he used SCO's documents as "proof". Gray's other angle is that the Open Group doesn't deserve the trademark for a long list of reasons that are too off the point of this article to explain, even if they did receive them from Novell. You can just click on all his documents, and I do mean all, to get the whole picture. He's very long-winded. Here's the page listing everything that has been going on since 2001 in this weirdo Opposition action before the Trademark Trial and Appeal Board. (Here's the interlocutory attorney who is hearing the case.)

If you open number 41 on that list, on page 2, X/Open says this:

Novell granted X/Open an exclusive license to use the UNIX mark in an agreement dated May 10, 1994, and subsequently assigned the UNIX mark to X/Open pursuant to that agreement.

Then on page 8 of document 47 (X/Open's Motion for a Protective Order, the one that is hanging in the air), X/Open says there was "a May 10, 1994 agreement in which Novell granted X/Open an exclusive, perpetual, irrevocable license to use and sublicense the UNIX mark, and agreed to assign the Mark to X/Open." That will help us to understand the wording of the 1996 Amendment 2 of the 1995 APA, which said the Excluded Assets were: "All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." Novell had already promised the UNIX trademark to X/Open in 1994. So, SCO got the UNIX source code, but not the trademark, X/Open says. On page 16, it says: "SCO never owned the UNIX mark and was not a party to the May 10, 1994 agreement between Novell and X/Open."

Then, in document 57, on page 5, the Open Group says something I never knew. It solves the mystery of the 1998 date. Open Group says there is a three-way agreement between X/Open, Novell, and SCO "dispositive of Gray's allegation that Novell transferred the UNIX mark to SCO and not to X/Open." And both sides reference a 1998 Deed of Assignment from Novell to X/Open, the document that officially transferred the mark, as per the promise in 1994. What stands out to me in this part of the story is that SCO, because it was involved in discovery in this trademark opposition, knows about that three-way agreement, but when it sent its letter to the USPTO, it never even mentioned it. I realize that Santa Cruz was a party to the agreement, but despite claiming to be Santa Cruz, SCO Group seems to be missing some paperwork you'd think a successor in interest would have, so I stress that even if they had never heard of the 1998 confirmation, they certainly know about it from the iNUX case.

Document 29 is a request to amend, and it has SCO's complaints in the IBM and Novell court cases attached, as well as the March 17, 2003 "Dear Fortune 1000 and Global 500 Customer" letter from SCO, on page 96.

And on page 109, you can see the Deed of Assignment from Novell to X/Open dated November 13, 1998 for the trademarks serial numbers 1392203, 1390593, 1780785, and if you look at page 110, you'll see that the marks that were transferred to Open Group were UNIX and UNIX SYSTEM LABORATORIES.

Yes. You read it right. UNIX SYSTEM LABORATORIES, the mark SCO told the USPTO should belong to them. Incredible, no?

You'll find on p. 114 the claims made by Gray. You see him asking for cancellation of the marks on page 119.

Here's the page of everything SCO has had assigned to it that are pertinent to Unix: SCO GROWS YOUR BUSINESS, serial number 76490790; SCO, #73801197; CALDERA VOLUTION, #76299429; OPEN LINUX, #75250949; and OPENDOS, #75283050.

That's it. No UNIX. No UNIX SYSTEM LABORATORIES. It also didn't get the mark UNIX SVR4.2, or at least not according to these USPTO records, which shows it still belonging to Novell, serial # 74288588, which it got from Unix System Laboratories, Inc.

There's lots more there, actually. I guess that shows I can still retire, because no matter what anyone says about the copyrights or trademarks or anything else about SCO, it's already answered here on Groklaw in our archives of the research we have done. And so, I'll let you read all the rest of Gray's new filings. My off-duty light just went on. And my stomach can take just so much.

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