"Q: How did the idea to acquire SUSE germinate?

"STONE: In April at BrainShare is when we made the first announcement that NetWare services were going to go basically on top of Linux. We wanted to learn how the open-source community actually works. We didn't want to be the big, bad enterprise company that dove into it.

"We had been working with SUSE for quite some time. But we decided strategically that we really needed to provide the entire stack. So it was about two months ago that we really decided to go for it. They weren't out grocery shopping. We really decided this is what we wanted to do, and we went after it. . . .

"Q: Don't you see this as a risky move at all, in light of the legal actions SCO has taken with respect to Linux?

"STONE: No, not at all. We think the SCO move is pretty much an unsubstantiated claim. They've never been able to prove anything they've been talking about. Our customers have not balked at this issue. I don't believe SUSE has any particular issues with SCO. As far as we're concerned, it hasn't been an issue."

SUSE will be a wholly owned subsidiary of Novell, and SuSE CEO Richard Seibt will be the CEO and general manager, reporting to Novell CEO Jack Messman.

If it interests you, there is a Novell and IBM Linux Solutions Seminar that you can attend free:

"The Novell and IBM Linux Solutions seminar is taking place in more than 40 cities around North America, so locate a seminar near you and register today. All attendees will receive a Linux Solutions kit which will include a Novell Nterprise Linux Services Beta One CD."

It was supposed to be about Ximian, but I'm guessing the topic just expanded. If anyone attends, I would love to hear about it. Here's what they said it was going to be about:

"Attend the seminar to find out what Novell's recent acquisition of Ximian, a leading provider of Linux server and desktop solutions, means for your business."

It started today and runs through the 13th. The cities are listed on the web site. Signing up doesn't guarantee a place, and it's first-come, first-serve. Here, for example, is what they say if you go to sign up for the Nov. 12 NYC event:

"Join us to learn how new Linux solutions from Novell, Ximian, and IBM can expand your options and lower your TCO.

"During this informative event, Novell experts will show you how Novell Nterprise Linux Services, Ximian solutions, and IBM can help you enhance your NetWare environment, embrace open source solutions, and deliver secure, consistent services and support across your NetWare and Linux systems."

Longtime Microsoft foe Novell has signed an agreement to acquire SuSE Linux for $210 million in cash, while IBM, the most powerful backer of the Linux OS, will make a $50 million investment in Novell. . . .

SuSE is strongest with the open-source software on servers, the networked machines that handle chores such as hosting Web sites and routing e-mail.

The acquisition is expected to close by the end of Novell's first fiscal quarter in January, at which point the IBM investment will become effective, Novell said. IBM plans to buy $50 million of Novell preferred stock.

In addition, IBM and Novell are negotiating an extension to SuSE's agreement to support all four of IBM's server lines and are planning joint marketing and support relationship, the companies said.

Novell--a company that has retained significant rights from its former ownership of Unix--now has a strong vested interest in Linux. SuSE, meanwhile, believes its former alliance with SCO shields it, an assertion SCO denies.

"We chose SUSE LINUX because they are a clear market leader in Linux technology for the enterprise," Messman said. "With this acquisition, Novell will be the only billion-dollar software company with a Linux distribution and a worldwide ecosystem around it. A worldwide technical staff of more than 600 has been trained to support Linux. The acquisition of SUSE LINUX completes our technology stack from the desktop to the server."

Beyond the technology, the acquisition will also expand Novell's strategic commitment to the open source community. The combination of SUSE LINUX and Novell will deliver not only complete enterprise Linux software solutions, but also worldwide channels and industry-leading partnerships. The combined company will help promote a thriving, global open source ecosystem that creates innovation and choice for developers, users and organizations alike. Novell is firmly committed to open standards and maintaining the existing open source kernel development efforts. From advocacy and development resources to events and support of open source efforts like kernel projects, XFree86, ReiserFS, KDE, GNOME and Mono, Novell stands side-by-side with the open source community.[emphasis added]

The press conference can be heard live at 11:00 EST. The lesson to be learned? You don't want IBM mad at you. They fight to win.

Peter Williams adds this detail:

Mike Davis, senior researcher at analyst Butler Group, said Novell had been trying to reposition itself because its NetWare [operating system] was very dated. But he thought IBM's involvement was the most telling element in the deal.

"SuSE became more vulnerable after the SCO Group, which has worldwide offices, pulled out of United Linux. IBM has a great need to maintain viable and strong distributions. So a bit of me says this is directly as a result of SCO's actions," he said.

FOR IMMEDIATE RELEASE
NEW YORK - The New York City-based Public Patent Foundation, a non-profit organization aimed at protecting individuals and small businesses from the negative effects of the patent system, has begun operations with the assistance of seed financing provided by the global social venture fund Echoing Green.

Daniel Ravicher, Founder of the Public Patent Foundation and a registered patent attorney, was named by Echoing Green as one of the world's "Best Emerging Social Entrepreneurs" for his campaign against patents that harm the public health, impinge civil liberties, and impair free markets.

According to Ravicher, roughly half of all patents in the United States are illegitimate, meaning they should have never been granted. Illegitimate patents restrict the availability of critical medications to the public and deprive small businesses in information technology industries of fair opportunities to compete in the marketplace. Utilizing legal action, advocacy and public education strategies, the Public Patent Foundation will work to expose and neutralize illegitimate patents through various mechanisms, including filing requests with the U.S. Patent and Trademark Office to have such patents revoked. Prominent law professors from Columbia, Georgetown and Stanford law schools have already pledged support for the organization.

"The company said it has uncovered a 1996 amendment to the contract under which Novell sold many of its Unix assets--which appears to give SCO claim to at least some Unix copyrights.

"The amendment seems to reverse a provision in the original 1995 asset transfer agreement under which Novell sold much of the Unix business to SCO's predecessor, the Santa Cruz Operation. That sale specifically excluded copyrights from the transfer. The amendment modifies this exclusion, so that SCO seems to receive at least some Unix copyrights."

I have been waiting for that document to show up in the discovery process or as an exhibit, but unless I've missed it, so far I haven't seen hide nor hair of it, which seems odd. Time will tell. I mention it, because this document, while a bit unclear, tips away from SCO, but if there really is an authentic amendment, it could change the picture.

There was a conference on the 31st before the administrative judge, who has set November 21 as the date for a second conference. If at that second conference there is still a problem with discovery, then the Motion to Compel Discovery will be argued on December 5 at 10:00 AM.

So things are progressing nicely, and the noose tightens around SCO's neck. They have to show the code and particularize their claims. Judges will let you get away with delays at the start, to give you every benefit of the doubt, which you want if you are ever in a court battle, but the honeymoon doesn't last long.

It looks like the judge is putting SCO on notice that they have a real deadline now, and should they fail to meet the November deadline without a mighty good excuse, the Motion is already set for oral arguments. She could instead have said that she wanted both sides to report back to her in November and then she'd see what to do. Instead, she set a firm date for oral arguments, so it's a kind of a warning that they've delayed as long as they can get away with. Oral arguments on a Motion to Compel -- well, that is, to say the least, what you want to avoid, if you are SCO.

The information is up on the paid Pacer listing, but not on the public one. Here are the details, exactly as listed on Pacer.

I believe it is one of the most helpful research tools Groklaw has ever offered, because you can see at a glance precisely what SCO is denying and admitting, and some of SCO's denials are astonishing.

What is left out of the chart are IBM's Prayer for Relief and SCO's Affirmative Defenses, which do not parallel each other and therefore are not included here.

We'll be offering this new comparison feature with other documents as we go along in the case, so you should find it much easier to follow along from now on. Enjoy.

What stands out from the transcript, aside from the discussion of Novell and copyright and the confirmation that SCO sent IBM its letter notifying them that their AIX license would be "terminated" the same day they filed the lawsuit, is McBride stating that they decided to enforce their legal rights back in the fall of 2002. ("Last fall we set on a course to go down the path of enforcing our rights in this Unix business.")

So they planned to enforce from the fall of 2002. Yet, when reporters began to question them about insider trades in August, McBride and others indicated that Robert Bench's "pre-set"sales plan was set up prior to any plans to sue IBM. McBride said that Robert Bench, who was the first to set his sales plan up, did so in January:

"Chief Financial Officer Robert Bench began the selling by SCO insiders, four days after SCO filed the suit against IBM. Bench is selling to help pay a $150,000 tax bill, McBride said. Under the Sarbanes-Oxley law, companies are no longer able to loan executives money to pay taxes or other expenses.

    "Bench submitted a sale plan in January, months before any legal action against IBM was contemplated, McBride said."

These two statements do not seem at first glance to be compatible, unless I am missing something. Perhaps it's another instance of being literally true words but misleading statements, at the same time.