Last time we looked in on this case, the parties had filed summary judgment motions. Now Microsoft has filed a cross motion asking the court to dismiss Novell's complaint, and Novell has filed a response in opposition. Very much at issue are exhibits in the Comes antitrust case against Microsoft. Believe it or not, no one had adequately set up a database system to be able to search through the exhibits efficiently. So Novell wanted Microsoft to look for what it was asking for in discovery, and Microsoft wanted Novell to have to do that. And the court didn't press Microsoft much. And so at the end of the day, there was no evidence on some key points that either party could find.

Groklaw is now working on such a searchable system, which we hope will be available in about a week's time, if all keeps going well, so you and I and the world can search the exhibits easily. It may be too late for this litigation, and there may not be any more relevant evidence to find -- how I wish I'd known there was this need earlier -- but now that we know, we are working on it and at least it will be in place for others. Anyway, while the database Microsoft has is more complete than the Comes materials made public in that litigation, we certainly can arrange what we have better than that, and we are just a bunch of volunteers. Capice?

If you look carefully, you will see that one of the emails [PDF] we posted on that last article is now referenced in Novell's Response as footnote 4 (I think the Hassid affidavit has transposed 4 and 5, by the way). It could be coincidence. But if not, this is surely worth doing. Anyway, it's what Groklaw was born for. It's Open Source, so many eyeballs make bugs shallow. If they belong to geeks, you can throw in some technology, and solutions are possible that law firms often can't achieve on their own. And yes, if it were the other side searching, I'd still do it, although I'd have some questions about the plausibility of such an expressed need in this case.

The AutoZone settlement agreement received no written objections, but the U.S. Trustee's office does have an "informal" objection to the sealing of its terms. That means that will be at least discussed, unless they can get it resolved before Friday, and the Notice of Agenda says they're working on that. The U.S. Trustee's Office has been on the ball from the starting gate.

The motion by Wayne Gray to lift the stay will also be argued at that hearing. SCO's Chapter 11 Trustee, Edward Cahn, objected and Gray responded, so it's game on. The hearing should be pure fascination, to say the least. But I doubt the outcome is hard to guess.

As you may recall, if you've been around since 2003, SCO's position on the GPL has been that while it may have distributed its code under the GPL, it didn't mean to do it, that it never knowingly distributed Unix or Unixware code under the GPL. I'd like to briefly explain why that excuse doesn't matter to either Novell or IBM. IBM of course has always taken the position that it hasn't infringed any copyrights, no matter who owns them. But let's take SCO's words at face value, and pretend that they are true. Then how does the GPL moot their claims?

Psystar's motion for summary judgment on trademark infringement and trade dress is denied. So is its illusory motion for copyright misuse.

There are still issues remaining for trial, despite Psystar's attempt to present everything now as being moot. Here's what's left to be decided at trial: Apple's allegations of breach of contract; induced breach of contract, trademark infringement; trademark dilution; trade dress infringement; and state unfair competition under California Business and Professions Code § 17200; and common law unfair competition. See anything on that list that will be helpful to Psystar?

So that means damages ahead for Psystar on the copyright issues just decided on summary judgment, at a minimum. The court asked for briefs on that subject. In short, Psystar is toast. Psystar's only hope now is Florida, and frankly I wouldn't bet the house on that one. Judges notice if you were just found guilty of a similar cause of action in another state.

You're surprised? I told you, I told you, I told you. So, to those who feel crushed at the moment, there could be an appeal, I suppose. And if you want freedom for your code, you certainly can find it on Planet Earth. Look in the right direction. You'll be happy you did, because you can hack away to your heart's content, and it's perfectly legal. The court's message is clear: EULAs mean what they say; if you don't want to abide by its license, leave Apple's stuff alone.

We have the order for you as text.

And Bert Young has a new job. He is now CFO at a company called Benefitfocus, located in South Carolina.

Update: Jeff Hunsaker is out.

Groklaw member PolR has written an explanation for lawyers of computation theory to try to fill a gap in their knowledge that he has observed from reading legal briefs.

Here it is, patent number7617530. Thanks, USPTO, for giving Microsoft, which is already a monopoly, a monopoly on something that's been in use since 1980 and wasn't invented by Microsoft. Here's Wikipedia's description of sudo, which you can meaningfully compare to Microsoft's description of its "invention".

This is why what the US Supreme Court does about software patents means so much. Hopefully they will address the topic in their decision on Bilski. Sudo is an integral part of the functioning of GNU/Linux systems, and you use it in Mac OSX also. Maybe the Supreme Court doesn't know that, and maybe the USPTO didn't realize it. But do you believe Microsoft knows it?

Perhaps Microsoft would like everyone in the world to pay them a toll at least, even if they don't want to use Microsoft's software? Like SCO, but with more muscle behind the request? Or maybe it might be used as a barrier to competition? What do you personally believe Microsoft wants patents on things like sudo for? To make sure innovative new companies can compete on an even playing field with Microsoft?

Updated with further filings, including the transcript of the October 23, 2009 bankruptcy hearing.

For sure the questions from the court to Bilski's attorney, J. Michael Jakes, and to the attorney for the government, Deputy Solicitor General Malcolm L. Stewart, are interesting. I conclude that the justices are way ahead of them on just how crazy the current patent system has become. Thank heaven there were so many amicus briefs, because reasonable, logical arguments were few and far between from either attorney, in my view, in that they each seemed to argue very much for the status quo, or in the case of Bilski's lawyer for an even broader free-for-all in patentability.