|Authored by: stegu on Monday, June 18 2012 @ 06:06 AM EDT|
|I agree that this is worrying, not just for|
the personal well-being of Judge Motz, but
for the health of this important case.
The judge seems to pay attention, and makes
a clear statement that indicates he has got it,
but he doesn't take it in, so a couple of
days later it seems all gone. I can't see how this
could be anything else than a sign of contemplated
but ill-conceived malice or a sign of an onset of
senility, or worse.
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|Authored by: Anonymous on Monday, June 18 2012 @ 06:33 AM EDT|
|Reading this day's transcript, I have to agree with that assessment. Either
he's forgetting by accident, which raises questions as to his competence, or
he's forgetting on purpose which is even worse since it demonstrates
I'm very pleased that the jury mostly managed to see through all that.
But I am likewise very concerned about the JMOL motion, especially as it was
argued without public notice.
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|Authored by: hAckz0r on Monday, June 18 2012 @ 11:45 AM EDT|
|A poor short term memory, but then having command and the ability to remember
things from many years ago, like the law and all the relationships between
issues pertaining to such. |
DRM - As a "solution", it solves the
wrong problem; As a "technology" its only 'logically' infeasible.
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|Authored by: Ian Al on Wednesday, June 20 2012 @ 03:52 AM EDT|
|Here's cpeterson's report about the Frankenburg complaint. I've quoted almost
all of it because it completely reverses the view I derived from reading the
transcript. Thank heaven for cpeterson's report because I believe it tells us
what really happened; and it wasn't a senior moment. Not that I like what it
Then, going second, responding to the Rule 50 motion,
Jeff Johnson took the podium for Novell.
Mr. Johnson then attempted to resume his
presentation about Microsoft's evangelism, and how it made Christy Sports v.
Deer Valley inapposite, when he was again interrupted by Judge Motz asking,
Mr. Johnson started out with
an apology, stating that since this was a motion for summary judgment, Novell
had prepared its response on matters of law. But, since Mr. Tulchin spent so
much of his time arguing the evidence, he would try to address that as
His ire was up.
He started out his statement with an
analogy about what anti-trust law is about: he said it's not about who wins or
who loses, but about who can play. He likened it to a sports venue, with six
gates onto the playing field -- five of which are owned by Microsoft. The
question, he says, is whether Microsoft can also control the sixth
He started with stating that Novell's intent was to compete. He
then went on to show, from the transcripts and visuals, the evidence in the
record showing Novell's actions in trying to put together a workable, and
quality, product. His next point was that Novell didn't know that Microsoft
would stop cooperating. They didn't know that Microsoft was going to turn away
from the course they had stated when they "evangelized" the new APIs to
Judge Motz, who had been fairly chatty with Mr. Tulchin, here
interrupted Mr. Johnson, asking where there was any evidence that Robert
Frankenberg, Novell's CEO, had complained to Microsoft about being cut out from
the APIs. Mr. Johnson responded with a showing that other Novell witness had,
indeed, been in touch with Microsoft raising the issue, but that was waved off
by the judge. No, he demanded, I don't mean some low-level developer. If you
can't show me evidence that the CEO even cared to ask for a response from
Microsoft, then... (shrug, 'nothing I can do' palms up).
insisted that this appeared to be a technical issue, and the technical people
were the ones who were handling it. Judge Motz again interrupts, indicating that
the absence of Frankenberg's response is fatal to Novell's case. [PJ: See what I
mean about this judge?]
One of the other attorneys passed a note to Mr.
Johnson, who then said that Mr. Frankenberg *did* contact Microsoft. "Show me",
says Judge Motz. "If that evidence isn't in the record, this case is *over*."
There was a short conference at Novell's table, then -- I believe it was Mr.
Schmidtlien -- rose and stated that Frankenberg *did* get in touch with
Microsoft but that the emails were not in the record, because they were written
by Novell's counsel, addressed to Microsoft's counsel, and were specifically
about anti-trust concerns; and, being privileged communications, Novell has
never had reason to believe Judge Motz would want or allow them on the record.
However, he continues, if the judge so wishes, Novell can produce them on Monday
Judge Motz makes a "stop" gesture with both hands -- "No,
no, if they exist, then that's OK. I'll want to see them, but I applaud your not
attempting to put privileged material into the record." (I'm holding a little
bet with myself - I think Novell will at the least enter a motion to put those
emails on the record, simply because during the above Mr. Tulchin had stood up
and stated "There are no such emails - they don't exist." Then he quickly sat
back down. Might Novell decide to make him object to the entry of the
"non-existent" emails into the record?)
Mr. Johnson then attempted to
resume his presentation about Microsoft's evangelism, and how it made Christy
Sports v. Deer Valley inapposite, when he was again interrupted by Judge Motz
asking, "Do you have any case where a defendant is required to share its
intellectual property with a competitor?"
Mr. Johnson paused for a
moment, then confided: "If Microsoft had come to us in '93, telling about the
new APIs, and how wonderful they were, and how they were going to change
everything, and then said '... and nyah, nyah, you can't have them', well, that
would have been cold and venal and cruel, but it wouldn't have been actionable.
They would have been within their rights to do that. But they didn't do that.
They advised us -- pleaded with us -- demanded that we use the new APIs. That
makes it different."
Judge Motz still seemed inclined to argue that
there was nothing actionable about Microsoft doing whatever they want with their
own intellectual property. Mr. Johnson said Novell isn't claiming they can't,
and isn't claiming rights to Microsoft's IP. On the big screen then appears the
appellate court's "baseball bat" analogy, and the Judge subsided for the
Continuing onward, again, Mr. Johnson tries to resume his
presentation. He attempts to describe the link between the Hood Canal retreat
documents and the October '94 Bill Gates email ordering the withdrawal of the
APIs, when Judge Motz interrupts again. He wants to go back and talk about
Frankenberg some more.
He asks to be shown some of Mr. Frankenberg's
testimony, relating to QuattroPro. Frankenberg had been shown an email about the
majority of the QuattroPro developers resigning. (This is, I believe, an email
from 23 Dec 1995) He had agreed that had happened, but that it didn't matter,
because as the email said, development of QuattroPro was "basically done".
"There's your proof right there," says Judge Motz. "Frankenberg says
it was basically done, and that implies, *not* done." He went on to reprise
Microsoft's argument about the non-existence of the software suite which could
have been damaged by Microsoft actions.
No, says Johnson, that's not
the case. The portion of QuattroPro which wasn't complete was the Shared Code
portion, which depended on the Microsoft APIs. Everything else was done; the
core engine was not being substantially changed from the prior version of the
product. The delivery of WordPerfect never was dependent upon the delivery of
QuattroPro; even the PerfectOffice suite product didn't necessarily depend on QP
delivery because they had -- as some development team members had testified -- a
backup plan to ship PerfectOffice with a coupon for QP whenever it did become
Well, where is your evidence, Judge Motz wants to know, that
WordPerfect was designed to run on something other that Win95? How can you claim
this is about competition in the operating systems market, if you're not
marketing another operating system? What is that other operating
Novell's lawyers appear, by this time, quite flabbergasted.
This is all about a version designed *for* Win95, and the judge says that if
Novell can't prove that it was designed for something other than Win95, the
whole case gets tossed out? Exchange of glances, shrugs, dismayed
Novell puts up a chart showing the numerous different
versions of WordPerfect: for Dos, for Win3, Win3.1, OS/2, Unix, etc.
But, says Judge Motz, those are *earlier* versions. The evidence all says you
just wanted a Windows 95 product. The developers -- Harral, Richardson, Gibb --
all testified that they loved the new technology. They wanted to marry their new
product to it. Show me the new operating system which was going to be
competitive, or else I just have to assume that Windows 95 won the market
because it had superior technology.
Again Mr. Johnson contradicts
Judge Motz, saying that for one thing, the "middleware" capabilities of
WordPerfect make it, itself, the OS-replacement; or at least, the thing that
would make the OS choice unimportant. Besides, says Mr. Johnson, that isn't a
point we have to prove, because it's already been ruled on.
"If I say
you have to prove it," says Motz, "then you have to prove it."
why we have a thing called 'the law of the case'," responds Johnson.
Judge Motz slams both palms down on the desk, then points his finger at Mr.
Johnson. "DON'T talk to me about 'law of the case'," he says. "When I ruled the
way I did, I didn't have the evidence from Gibb, or Harral, or Richardson. If I
feel like the new evidence says I was wrong before, then I'll say I was wrong.
If I think the new evidence says the appeals court was wrong, then I'll say they
were wrong. I can be wrong, but I don't have to *stay* wrong."
civility in the courtroom suffered after that point. (On a personal note, I was
shaking pretty badly -- the stress on top of no lunch -- and couldn't make a
legible note after that.) However, since the proceedings thence became less
"legal argument" and more like the layman's definition of "argument", my
feelings of guilt over not bringing you a more complete blow-by-blow account are
I will just say that at a number of points, Mr.
Johnson had both of his fists clenched in his hair in an attempt to contain
himself; Judge Motz, when he wasn't speaking, mostly turned away, using his
hands to cover his face, and often his ears.
And just one other
comment on the matter: during the interplay about Mr. Frankenberg's testimony,
Mr. Johnson had the transcript up on the big screen reading it. It turned out
that the majority of the transcript's content was Judge Motz's comments and that
he and Frankenberg did not see eye to eye.
Then, the judge told Mr.
Johnson "I'm going to order you to stop there." Johnson replied, "I agree, your
honor, there is no need to get into the unfortunate comments on the next
Later, there were a couple of references by both Johnson and
the judge to "Mr. Frankenberg's testimony prior to the unfortunate
To end - I'll see if I can clarify the ending of the day's
proceedings: they're not done. Argument on the Rule 50 motion will continue
Monday morning, and Judge Motz will (may?) defer ruling on the motion until the
completion of those arguments. They don't expect to go much longer, so the jury
will be asked to come in on Monday, although it is unknown what time they might
be brought into the courtroom. It is still possible - not improbable, even -
that Judge Motz may grant the motion, and release the jury.
everybody agreed on one thing, though -- next stop for this case is the 10th
Circuit Court of Appeals. ("The home grounds of Aspen Skiing", as Mr. Johnson
Software Patents: It's the disclosed functions in the patent, stupid!
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