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Further back in the Archive:

Another day, another knockout punch aims at SCO
Dec. 05, 2006

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Last week saw the end of most of The SCO Group's claims of IBM contributing Unix code to Linux. Now, Novell has filed a motion that undercuts all of SCO's contract claims against IBM, based on a "silver bullet" clause in the original sale of Unix to SCO.

In its latest legal move against SCO, Novell on Dec. 1 filed for partial summary judgment against SCO in its own case. In this motion, Novell is asking the U.S. District Court to rule that the Unix APA (Asset Purchase Agreement), which sold Unix from Novell to SCO, gave Novell the right to waive SCO's contract claims.

Novell had long claimed that it never sold Unix's IP (intellectual property) rights to SCO. This new motion, however, isn't connected with those claims.

In the APA, Novell has what Mark Radcliffe, co-chair of the Technology and Sourcing Practice Group at the law firm DLA Piper, called, when Novell first made these claims, a "silver bullet" provision under the APA to block SCO's actions under these licenses. "This provision permits Novell to amend, supplement, modify or waive provisions of the Unix licenses sold to SCO," Radcliffe said. "Novell also retained the unusual right to require SCO to follow its directions to amend, supplement, modify or waive these licenses and, if SCO does not comply, Novell can do so on SCO's behalf."

In the memo in support of the motion (PDF Link), Novell puts it bluntly: "Novell's motion presents a single issue: whether the express terms of a 1995 contract authorize Novell to direct SCO to waive its purported legal claims for alleged breaches of SVRX license agreements with IBM and with Sequent, and to take action on SCO's behalf when SCO refuses to so waive, where the plain language of the 1995 contract gives Novell 'at its sole discretion and direction' the right to take such action concerning 'any SVRX License.'"

While unusual, the APA appears to be quite clear on this point. According to Section 4.16 SVRX Licenses, sub-section b of the APA, SCO "shall not have the authority to, amend, modify or waive any right under or assign any SVRX License without the prior written consent of [Novell.]"

If the court agrees with Novell's logic, this would knock-out all of SCO's contract claims.

[Ernest_at_the_Beach]

Back to this year:

Aftershocks: SCO and Novell on the Novell/SCO court decision
Aug. 13, 2007

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Although Novell has won clear title to Unix's IP (intellectual property) rights, SCO isn't ready to throw in the towel yet.

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On Aug. 10, U.S. District Court Judge Dale Kimball has ruled that Novell, not SCO, owns Unix's IP rights. This, in turn, means the beginning of the end of SCO's cases against IBM, Red Hat and other Linux-using companies.

The SCO Group isn't sure exactly what it will try to do next in the face of the court's damning decision, but the Unix company isn't ready to give up on its lawsuits quite yet.

In a statement, SCO said that it "is obviously disappointed with the ruling issued last Friday. However, the court clearly determined that SCO owns the copyrights to the technology developed or derived by SCO after Novell transferred the assets to SCO in 1995."

According to SCO, this means SCO owns "the new development in all subsequent versions of UnixWare up through the most current release of UnixWare and substantial portions of SCO UnixWare Gemini 64. Also, SCO owns the exclusive, worldwide license to the UnixWare trademark, now owned by The Open Group. SCO's ownership of OpenServer and its Mobile Server platforms were not challenged and remain intact."

These issues, however, were not of material interest in the Novell case.

If SCO continues to try to fight, the issues that might conceivably make a difference are that "the court did not dismiss our claims against Novell regarding the non compete provisions of the 1995 Technology License Agreement relating to Novell's distribution of Linux to the extent implicated by the technology developed by SCO after 1995. Those issues remain to be litigated."