This time, SCO asks the appeals court to rule that the lower court erred in finding that SCO does not require the UNIX and UnixWare copyrights. Considering that is what SCO's CEO at the time told the SEC, they are, in short, as cheeky as ever. Their argument is that they didn't need it for the technology business, but they need them to litigate. Also, SCO asks it to consider if the court erred in ruling that Novell can waive IBM's alleged breaches of the license agreement. SCO also takes issue with the judge at the second SCO v. Novell trial, the Hon. Ted Stewart, allowing the jury to hear about the 2004 BusinessWeek article calling SCO the 'Most Hated Company' in the technology industry. Also it takes issue with the judge's evidentiary rulings. For example, SCO doesn't like it that the judge allowed the jury to hear about the earlier decisions in Novell's favor.

What is the relief that SCO is requesting this time?

SCO respectfully requests, for the foregoing reasons, that the Court reverse the district court's denial of SCO's motion for judgment as a matter of law on SCO's claim for slander of title, or, in the alternative, grant a new trial; and that the Court reverse the district court's findings of fact and conclusions of law as set forth herein.

They have a number of suggestions on how they think you can help, including searching for prior art. The result of all this, unless Oracle changes course, will be, FSF points out, that everyone will dump Java:

Programmers will justifiably steer clear of Java when they stand to be sued if they use it in some way that Oracle doesn't like. One of the great benefits of free software is that it allows programs to be combined in ways that none of the original developers would've anticipated, to create something new and exciting. Oracle is signaling to the world that they intend to limit everyone's ability to do this with Java, and that's unjustifiable.

SCO objects to $2,914.74 in costs for folders and binders, which were part of the copy costs. Rather than further dispute entitlement to such costs, Novell withdraws its request for them. However, SCO's assertion that because Novell failed to disaggregate these costs, the Court should 'deny Novell's Bill of Costs in its entirety,' is absurd. (Objections to Bill of Costs at 7.) Novell's Bill of Costs contains several entries that are not even addressed in SCO's Objections, not the least of which is $99,639.09 in costs that were previously awarded by the Court following the initial bench trial and simply have never been paid by SCO.

I think I can explain both events, because they are part of one campaign. Or as American Lawyer describes [PDF] the lawyers behind this, they are on a crusade against Google. The article is titled 'The Google-Slayers'. Guess who the lawyers on this crusade have as a client? Microsoft. They handle Microsoft's antitrust work. Guess who sent the first complainant to these lawyers, which led to this crusade? Microsoft. The jumping off point.

So. A crusade to destroy Google. By folks who count Microsoft as an important client, with new clients, at least one of them directly referred to the 'crusaders' by Microsoft and the rest now under their umbrella. My stars, gentlemen. Where is your subtlety?

But there's more.

Darl and Me Inc Holdings LLC, Darl's LLC, got not only the copyrights but a patent application as well, including rights to sue for any past infringement. The patent is entitled 'Systems and Methods for Providing Distributed Applications and Services for Intelligent Mobile Devices,' and the application was filed in 2006, #11/533347 . We were told in advance of the sale that this patent application was excluded, but then he got it anyway.

What was SCO thinking, I was asking myself as I read the agreement? I could just see it: 'Darl sues Google's Android'. Why not? Everyone else and his dog is. Of course there's some prior art on that method of making fast, easy money. Seriously, though, if you check the transaction history for this patent application with the USPTO's PAIR system, what you learn is fascinatingly funny.

At the time of the sale in April, the patent application was still working its way through the system. There was a non-final rejection notice that issued in January of 2010, which presumably Darl knew about if he did any due diligence. In July, post-sale, there was a request for more time to answer that notice and then they filed a reply. But on August 17, there was a final notice of rejection anyway of claims 1-17 and 19-20. Prior art and obviousness. Claim 18 had been 'withdrawn from consideration' so the rejection was not only final but total. Darl has 3 months to reply, and, in some conceivable convoluted drag-it-out process the rejection outlines, it could last six months, tops. But it looks like Darl bought a pig in a poke.

And some of you say there is no God.

SCO's argument asking for more time is interesting, because we learn that Novell asked to -- and SCO agreed they could -- attach 60 more documents to the Appendix. And Stuart Singer, who takes credit in his bio on Boies Schiller's website for representing SCO as lead counsel at this same court of appeals the last time SCO appealed, is busy with another case, working on a preliminary injunction proceeding. Well. Almost. It doesn't say the 'SCO' word :

Won appellate decision from Tenth Circuit (August 2009) regarding ownership of copyrights and contract rights for the UNIX operating system.

Preliminary injunctions are very, very hard to win, because one of the things you have to demonstrate early in the case, meaning before you've done discovery, is that you probably will win in the end, so it's a legitimate excuse this time. But what might those extra 60 pages be, I wonder?

I think it ought to inspire you, reading Allen's complaint [PDF], that it might get you to the tipping point, or at least help you to understand why most engineers do hate software patents, because they are a drain on the economy and a hindrance to innovation. So we did Allen's complaint as text, sort of as Exhibit A, shall we say, illustrating the point.

But if you can figure out precisely what this litigation is about from this complaint, what the defendants are alleged to have done wrong, you are doing better than I am. It's unbelievably vague.

So are the patents . What is it that these patents do? What's the process or method? I mean, 'Alerting Users to Items of Current Interest', a patent on a system for recommending things that might interest you based on your interest in something else? How's this for prior art? When I go to the local hamburger joint, they ask me if I want fries with my burger.

08/26/2010 - 890 OBJECTIONS to 879 Bill of Costs filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A )(Normand, Edward) (Entered: 08/26/2010)

I will translate for you. What that means is that SCO would like to pay less. If Novell had lost, and they had been ordered to pay SCO's bill of costs, SCO would have fervently argued the opposite. Last time, SCO was able to get a bit knocked off the bill, so they may again. But they'll probably still have to pay something. But will they? In real life, I mean. Not on paper.

Focus, please, also on what he's learned about patents, how to invalidate them in various ways, especially the part about proving non-infringement and why that is easier than proving prior art, and then the part about finding a workaround that then publicizing it. He shows how to read a patent filing document. You guys have been effective already in the past in finding prior art, but he is raising the bar with more techniques.

I see some of you are already posting what you believe to be prior art on the Oracle America patents being used against Google, and we might as well do it as well as we can once we are sure Oracle is going to go forward full steam ahead, but there are other arrows to add to our quiver. I'm waiting to see if there is a settlement of some kind, but when I am sure it's going forward, I'll tell you. Patent infringement cases go on for years, usually, so there's time to hope for progress. Larry Ellison is giving a talk at JavaOne September 20 in San Francisco on 'Oracle's vision and strategy' for Java. As James Gosling points out , there is still a way to fulfill the 2007 Java pledge by setting up an independent Java foundation, and there are other steps Oracle can still take. In spite of all that is happening, one thing I am clear on. Oracle is not SCO. Oracle is Oracle. Sui generis.

But as Eben Moglen pointed out recently at LinuxCon, the patent crisis in general isn't going away. So it's best that we figure out the very best ways to deal with it. I'm told his talk will be available as video soon, and when it's up, it will be here on the Linux Foundation website.

The case, Apple Inc. v. High Tech Computer Corp. et al, is now before Judge Gregory M. Sleet, docket number: 1:10-cv-00544-GMS, in the US District Court in Delaware. The et al means there are others as defendants, and the full caption is Apple Inc. and NeXt Software, Inc. v. High Tech Computer Corp., a/k/a HTC Corp., HTC (B.V.I.) Corp., HTC America, Inc., and Exedea, Inc. The defendants are asking to move the case from Delaware, where Apple filed, to Northern California. I don't know about you, but I'd rather be in any state *but* Delaware, after watching SCO's bankruptcy there.

HTC denies infringing the patents, of course, but they also say as a first affirmative defense that four of the patents are invalid for 'failure to comply with one or more of the conditions for patentability set forth in Title 35 of the United States Code, including, but not limited to, utility, novelty, non-obviousness, enablement, written description and definiteness in accordance with 35 U.S.C. §§ 101, 102, 103, 112, and/or 116, or are invalid pursuant to the judicial doctrine barring double-patenting'. HTC also claims prior art, marking, laches and marking defenses, and it says it has license agreements with third party suppliers to do what they do the things Apple is suing them over. It asks the court to declare the patents invalid. Here's a recent case highlighted on EFF's site where some of those types of defenses worked perfectly.

You know how in the movies when two guys get into a fight on the street, another guy will run into a bar and yell, Fight! and everyone runs outside to watch? I feel like that guy reading this filing, because I see HTC intends to fight back.

Now that the old caldera.com pages are on Internet Archive again, thanks to SCO selling off the domain name, many interesting things are surfacing, and we find out why SCO tried to hide them for so long. They should have waited a little bit longer.

But there's more. Microsoft is fighting to keep certain documents it alleges the judge in the district court didn't base his ruling on from being considered by the court of appeals. Here's the Microsoft Motion to Strike [PDF]. Warning: it's 75 pages long, including all the exhibits. The full title is Motion to Strike Certain Exhibits from the Joint Appendix and Any References to Such Documents in Novell's Brief. Microsoft is relying in part on some cases Novell already pointed out to Microsoft don't apply, as I'll show you.

But the case is interesting also on a tech level, because, in my view, the judge doesn't understand fully the difference between an operating system and an application. He ruled that WordPerfect is, under the relevant APA, an associated DOS operating system product and hence covered by the DR DOS litigation Caldera brought successfully against Microsoft. Because he lumped them together in a jujitsu way, accepting Microsoft's position, he found for Microsoft on summary judgment.

That reminds me, because Groklaw is now in the Library of Congress's digital collection, accessible if you visit the library, I have been taking time to try to fix older broken links, and I just finished updating the links in the US v. Microsoft litigation section, part of our permanent page on Microsoft Litigation , to include the famous video moment, the doctored video. There are links now to Ed Felten's testimony [PDF] that you could indeed uninstall IE in Windows 98, the trial exhibits , the depositions used , and direct testimony transcripts. including the transcript of the cross examination of Microsoft's Jim Allchin by David Boies, the famous Perry Mason moment . The transcript is, ironically enough, in Microsoft's .doc format, but if you don't have Microsoft Windows and don't wish to buy it, you can download OpenOffice.org for free, as in beer and as in freedom, thanks in part to all the antitrust rulings in the US and the EU and then thanks to all the volunteers who worked so hard to give us a viable alternative, and you'll be able to read it just fine.

If you notice any broken links, particularly on our permanent pages, please let me know. Being included in the Library of Congress is a great honor that I feel deeply, and when I disappear on the weekends somewhat these days, it's because I'm feeling that responsibility, knowing our work is available to researchers there who might not otherwise know about Groklaw, and I want to be sure our historical collections are as accurate as human limitations and the constantly changing Internet allow, so they are optimally useful. Also, I continue to work on completing our collection of exhibits in the Comes v. Microsoft antitrust case, some of which turned out to be relevant in the Novell v. Microsoft case, so if you'd like to help finish up, just go here , find any numbered PDF that isn't described or available in full as text, and do either a description or a transcript following the general style you see others have used, and then post what you find in plain text, ideally with HTML done and showing, or email me by clicking on the envelope icon. Thank you.

But let's take a look at the latest dispute in the Novell v. Microsoft appeal .

So this is Cahn's omnibus reply to them all, with some points regarding each objection. He still wants the sale to go forward, and the hearing on this will be Monday at 3 PM, so I hope some of you can go! The schedule for the day is filed as well, with all the details.

'Motion to stay taxation of costs' is legalese for 'SCO doesn't want to have to pay what they owe Novell for dragging them through another pointless trial that found exactly what the first trial found, so it would like to figure out what the costs are later, much, much later.' SCO asked for a postponement until all their appeals were decided. But the judge wasn't buying it.

Note they don't have to pay within ten days. They have to tell the court within ten days if there are any items on Novell's bill it thinks it should not have to pay at all.

Doing documents as text is very helpful, because it forces me to notice such details. Here is what else I'm noticing so far.

On the Oracle patents, in a post-Bilski world, the right question would seem to be:

Are *any* of the asserted Oracle patents tied to a specific machine?

Carlo Daffara has the patents Oracle is relying on listed with helpful links here . Groklaw member Celtic_hackr went through them and sees none that are tied to any specific machine. Only look if you are free to do so, but this is a shout out to the lawyers out there to at least investigate this possibility. If it's true, this might turn into one of the most interesting litigations we've ever covered. Yes, Groklaw will cover this litigation soup to nuts.

And may software patents crash into the ocean as an unintended consequence of this patent attack.

I've collected some links to give you context. I put them in News Picks already, but unless I put them in an article, they're hard to find down the road, and now that I've decided Groklaw will cover this litigation, we'll probably want to refer to these resources.

So, Ocean Park wants more money for advising SCO about its way forward and its obligations. I will provide my own analysis for free: SCO has fallen and it can't get up. It can never pay off all the folks it owes, even if it suddenly tried. The litigation history is rather clear, is it not, that SCO's stories in court rooms don't actually get believed? There's a reason for that, one SCO's current leadership might want to look into. As a result, SCO is now a serial loser.

Extrapolate. The way forward seems clear enough to me. There is no way forward.

There. I suggest my analysis is worth at least 5 cents. I'll assume my check is in the mail.

SCO in its motion had asked that two of IBM's motions for summary judgment on some of SCO's claims, long on ice because of the SCO bankruptcy, be revived and allowed to go forward so SCO could pursue claims not affected, in SCO's view, by SCO's loss in the SCO v. Novell case. IBM, of course, opposed on several grounds. First, it makes no sense to go forward until SCO's appeal is decided. Second, IBM wasn't crazy about SCO's idea of being allowed to go forward piecemeal, with IBM standing there tied up, so to speak, while SCO gets to kick them in the shins. IBM's position as well is that all SCO's claims are off the table, due to its loss in the Novell case, so unless it wins on appeal, there's nothing to go forward on. What a waste of judicial resources.

Oddly, SCO, as it turned out, at the conference asked to proceed on only one of the motions, #782 , IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim (SCO's Sixth Cause of Action). Probably they read IBM's memorandum in opposition. Argument was heard, and the judge, the Hon. Tena Campbell, has taken it under advisement.

There is no good argument for going forward piecemeal like that, IBM argues. The claims and counterclaims are too intertwined to do just those two motions without all of IBM's counterclaims, because they can't easily be untangled, and why do it now? It would be a waste of judicial resources:

2. Now, before the Tenth Circuit has ruled on the appeal, SCO seeks to pursue several of its claims against IBM, while IBM's counterclaims against SCO remain stayed as a result of SCO's 2007 bankruptcy filing. SCO's claims in this case depend on the outcome of SCO's appeal in the Novell Litigation. If affirmed, Judge Stewart's judgment will foreclose them. Moreover, they are closely related to IBM's stayed counterclaims and should not be litigated in the absence of IBM's counterclaims. While IBM shares SCO's interest in the expeditious resolution of this case, it makes no sense to litigate the case piecemeal. Doing so would waste judicial and party resources and potentially result in inconsistent rulings. Proceeding as SCO proposes would require the Court and the parties to undertake considerable work (on highly-complex issues) that might not be required, and risk litigating the same issues multiple times before different fact finders, depending on the Tenth Circuit's ruling.

It speaks volumes that Judge Dale Kimball did not rule on these motions pending SCO's first appeal, IBM points out, and his wisdom in so doing should be informative of the right solution now. If SCO loses the appeal, it can't go forward on any of these claims. But for sure, if any of the claims are tried, they should all go forward together.

There are some new tools , and they are open sourced too, and the program also includes 'training, a standard format to report software licensing information, consulting and a self-assessment checklist that will help companies comply with open source licenses.'

It's not hard to comply, certainly easier, I'd say, that with proprietary licenses, but anything new to you can feel harder, and this is designed help businesses easily and effectively incorporate open source tools into their products without friction.

I guess after this there really will be no excuse not to get it right. The press release has links to all the details.

Old-timers here will notice that it looks a lot like SCO's opposition brief to Novell's petition [PDF] to the Tenth Circuit Court of Appeals last year, when Novell asked for a rehearing by the Tenth Circuit of its decision on SCO's first appeal. That decision is the same one Novell now is asking the Supreme Court to review. Compare the table of contents on each SCO filing, and you'll see that SCO is recycling. In fact, I was able to just copy and paste their Table of Authorities from the earlier filing, and the only change I needed to make was to the page numbers by one digit.

Don't take this case, SCO says to the Supreme Court. It's moot, because we lost in the trial the appeals court ordered and so Novell owns the UNIX and UnixWare copyrights at issue. We are appealing, but if we win, Novell can petition you then. And it doesn't involve a question of importance anyhow, SCO argues. Besides, the court of appeals was right, SCO goes on. The APA, once amended by Amendment 2, is a copyright transfer writing, because it showed an intent to transfer some copyrights.

This is exactly what the jury just decided was *not* the case.

'Additional Disclosure Schedules may be added Upon Finalization of Agreement,' SCO says. Like... um... the buyer? Little details like that? I mean who'd want the business on these terms, I wonder? Ralph Yarro? Darl? Whoever it is, he or she is ready to roll:

At the Trustee's request, OPA has begun the process of marketing the Debtors' business by preparing a due diligence room and marketing materials, identifying potential purchasers and engaging in preliminary discussions with certain interested parties. Immediately upon approval of this Motion, OPA is poised to commence the sale process without delay.

14. Before the appointment of the Trustee, the Debtors attempted to sell their assets and were met with objections by Novell, based on, inter alia, the uncertainty of the Debtors' rights in the UNIX and UnixWare copyrights in light of the then pending Utah Litigation. Now that the 10th Circuit, the District Court on remand and the jury have ruled and the Debtors' interest in the Acquired Assets is clarified, the Trustee seeks to sell the Acquired Assets to maximize value for the estates.

It also wants to hire a firm, King & McCleary, to do taxes for SCO. It believes SCO lacks the employees necessary to do the job. And the job is federal and state tax returns for *2008* and 2009:

Based upon the status of these chapter 11 cases and the state of the Debtors' businesses, the Trustee believes that the engagement of King & McCleary is necessary in order to bring the Debtors into compliance with applicable non-bankruptcy law. Specifically, the Trustee does not believe that the Debtors have the necessary staff to perform the Tax Services internally.

The bankruptcy stay, SCO writes, applies only to litigation against SCO, not SCO suing others. So it would like the court to rule on SCO's summary judgment motions filed years ago.

But, I hear you say, that's not fair. Well. I look at it this way: if SCO started to play fair, it might upset the balance in the universe in the butterfly's wings sense. So it's very careful never to be fair. For our benefit. And let's be real. The only way SCO can win is if no one else is allowed to do a thing.

The Notice of Hearing sets August 11 at 3:00 PM before Judge Tena Campell. So I hope some of you can attend. It should be fun. IBM will certainly have something to say about this latest oily move.

We need to think about the grand strategy of our continued forceful campaigning for free as in freedom. But we also need to be extremely aware of the extent to which we can now capitalize upon the achievements we have already set up and the alliances with forces not necessarily concerned with freedom that our technological sophistication has brought to them.

Microsoft will continue to attempt to get paid for what we do, by forcing people -- or quasi-forcing people through intimidatory conduct -- to take patent licenses to run our software....If we are to quell this nuisance we can only do so in cooperation with others who see clearly that this is a threat to the welfare of their customers....

We try to know what is going on, and we try and respond to it as effectively as we can, and we try to build coalitions with industrial parties outside the limits of the free world, narrowly construed, in order to protect the free world's interests.

A member of Groklaw, brooker, has done an unofficial transcript of the video . Enjoy! There are a few places where the audio was unclear, and we've left those without guessing. But if your ears are better than ours, and you can decipher the words, please let me know. We aim for perfection, while recognizing our limitations.

I know. Lots of witnesses, but it's short snips from prior depositions mainly. Still, it feels like a long, long day.

This is still SCO presenting its case. Novell's turn comes later, and Novell's lawyer, Sterling Brennan, in his opening statement had asked the jury to wait for the rest of the story from Novell before reaching any conclusions during SCO's presentation. I have to say though that one inescapable conclusion from the day is that SCO didn't hit any solid home runs, but it definitely got hit in the head with a couple of fastballs. I think Fibers.com has a perfect T-shirt for SCO's Day 4 witnesses. It says :

'I reject your reality and substitute my own'.

Of course, to collect the money, the plaintiffs must apply to bankruptcy court as a creditor, and you know from watching the SCO case what can happen to creditors in a bankruptcy case, but if you are one of the other defendants, one thing you know for sure now: the GPL has teeth, it is enforceable in a court of law, and if you violate it, it can cost you.

'A claim to an abstract idea is not a patent-eligible process,'Bilski holds, they point out, but exactly where is the line? How do you know an abstract idea when you see it? So the USPTO is asking for public comment on what they came up with for their understanding. They want to hear from the public by September 27, and they provide some specific questions and a list of factors examiners are to consider when evaluating an application.

You know pro-patent companies' lawyers in droves will be telling them that their clients should be able to patent God's method and process for creating the heavens and the earth, so you may wish to comment yourself and let them know politely where you think the line should be drawn on the abstract idea exception to subject matter eligibility as set forth in Bilski, if this is a topic you care about. Otherwise, I can see it now, their report: We got 3,201 comments saying X and only 3 saying Y, so X carries the day.

What Psystar wants is nothing less than to overturn copyright law as we know it and create a new doctrine of per se copyright misuse any time a copyright owner restricts use of its software to particular hardware.

Wait. Isn't that kind of what TurboHercules is whining about too? Here's what TurboHercules told us it wants: 'We simply want IBM to agree to allow legitimate paying customers of its z/OS mainframe operating system to deploy that software on the hardware platforms of their choice - including, should they so choose, on low-cost servers using Intel or AMD microprocessors and Hercules.' Psystar and TurboHercules are going after different software, but they want exactly the same thing, to force the software creator to let them use it on software the owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own software. Let Apple and IBM pay for all that, and then they swoop in and make sure the creators don't benefit from their labor, so that Psystar and TurboHercules can.

You know what I find so striking? This is just one of four cases trying to grab some measure of control or use of other people's software against the owners' will, starting with the SCO v. IBM case.

Is SCO trying to lose this motion? Or just half-hearted? If it knows the court will not grant the motion, why file it? No. Really. Why? To keep things going as long as possible? They think Judge Ted Stewart will be more favorable to them than Judge Dale Kimball? Nothing else has changed.

When you are the paralegal, all you do is take the old document, change the dates to upgrade it, and hand it to your boss for him to add his touches, if any. I puzzle over why SCO is even bothering. But I'm thinking about that more and more. Why is SCO continuing when the outcome is so obvious?

But Linux got bonked on the head again. They essentially ruled that if you want to access DVDs or streaming videos, like with Netflix's 'Watch Instantly' service, you have to buy a PC or an Apple computer. I wonder how Hollywood would like it if the government told them that to make their movies they couldn't use Linux but instead had to use a Windows PC or an Apple computer? Hollywood uses Linux to make their movies, but they oppose letting us view their products on Linux? Why? If the government is going to regulate operating systems and compel citizens to buy certain vendors' products as opposed to the ones we want to use, I think it should at least be consistent. Actually, I don't think any government should compel use of any private company's products, and I wish that argument had been presented. Maybe next time.

I'll show you the relevant language in the document Determination of the Librarian of Congress and Text of the Regulation [PDF].

What does SCO want? What it has always wanted, the UNIX copyrights. It wants the appeals court to rule that Judge Stewart erred in ruling that Novell had the right to waive. After SCO lost the jury trial , it filed some motions, essentially asking Judge Stewart to overrule the jury and grant SCO judgment as a matter of law that the copyrights did transfer in 1995, despite the jury's ruling otherwise, or alternatively SCO wanted a new trial. The judge didn't do either, and SCO now wants the appeals court to rule that was error on his part. Finally, if all that fails, SCO wants the appeals court to rule that SCO is entitled to specific performance, compelling Novell to hand over the copyrights now.

In short, they want to win. They thought the jury 'just got it wrong', they asked Stewart to fix that, and he didn't, so now SCO is asking the appeals court to help them win something, one way or another. Why? It wants to sue Linux folks, I presume, and it can't without the copyrights. And it wants to sue IBM, too, and unless it can get the appeals court to rule that Novell has no right to waive and get the copyrights, SCO can't sue IBM. I guess it would be more accurate to say SCO wants to not lose. It's in quite a pickle as things stand. Think of IBM's counterclaims for just a minute, and you'll understand why SCO probably feels it has nothing to lose by trying.

You'll find a copy of this calendar on each page, so you can navigate any way you like. Enjoy!

For SCO's side, Stuart Singer begins the opening argument, and then Brent Hatch finishes up the last part of it. For Novell, it's Sterling Brennan all the way. Then SCO puts on its first witness on the stand, Robert Frankenberg, formerly CEO at Novell, who is examined by SCO lawyer Stuart Singer of Boies Schiller, then on cross for Novell by Sterling Brennan, then Singer on redirect and Brennan on recross. Here's Groklaw's coverage of that day.

This is technically not the trial itself, but jury selection and instructions to the jury from the judge, the Hon. Ted Stewart. The actual trial didn't start until the following day.

If SCO was hoping for a jury that was tech-challenged, they certainly did not get a jury pool like that. And the number of potential jurors who knew about Linux, had friends or relatives that used it, or who used it themselves was strikingly high. Either Utah loves freedom or someone has been seriously underestimating how many people in the U.S. use Linux. Maybe a little of both. Judge Stewart told SCO that he wasn't going to remove people from the jury just because they knew what Linux was or used it, but a couple of them got weeded out for other reasons.

The day begins with some initial judge/lawyer brainstorming, and then the jury pool is brought in, all 52 of them, and the process begins unfolding. The clerk was expecting 55, but there are always a few that don't show up due to illness or unforeseen occurrences. Judge Stewart tells them how grateful everyone is that they are willing to serve. He tells them that juries are necessary for the legal system in the US to work:

If we did not have individuals such as you who are willing to take your time to be here to allow us to select a jury, and those of you 13 in number who will ultimately be asked to serve as jurors in this case, if they were not willing to serve, then our entire judicial system would collapse. And if we did not have an operating judicial system in this country, we would not have a country.

As I look quickly through them, it looks like at the end of May, SCO could have paid back the Yarro loan in full. I realize they had just got it in March , and that that wasn't the goal in May. And this is July, not May. They took the loan to be able to keep the litigation going. And going. And going.

Guess how much they've spent in professional fees since this bankruptcy started? $5,097,729 plus $321,753 in expenses, not counting May or bills outstanding. So, the Chapter 11 bankruptcy has pretty much wiped out what they had when they started it, all to lawyers and other professionals helping them. Helping them do what? No wonder they keep postponing meeting with the bankruptcy judge lately. And no wonder they can't pay any creditors. Anyone notice this Chapter 11 thingie doesn't seem to be pointing toward success?

The trial began on March 8, 2010, a Monday, and ran for 15 days.

Here's where you can find the Mozilla Public License , the current version, along with a FAQ that explains it and an annotated version, and here's where you can get the draft of the revised version [PDF], and here is a red-lined version [PDF]. Nothing in the draft revision is yet set in stone. You'll notice that they are working on it like Legos, issue by issue, and this draft isn't addressing all the issues they hope to address. Here's the big picture .

But before we dig in, I'd like to talk to you about the big picture with licenses generally, where we are now, and why it's important to revamp licenses at this point in time. I hope OSI folk will read this too, because in my view, what Mozilla is doing is what needs to be done with every single license on the OSI list. Let me explain why.

Part 1 listed the reasons why IBM did nothing wrong, in that it has multiple licenses to use the code, for one thing, and this part continues that argument, but it then focuses on the files that SCO presented to the court, stating point blank that they are not protectable under copyright law. If you are not a programmer, and you see a list of header files allegedly infringed and don't know who is right, this is the document that will explain it all to you.

Just as we thought, SCO sued over essentially nothing at all, or as IBM puts it:

Despite SCO's grandiose description of its alleged evidence of IBM's infringement, it is now clear that SCO does not have (and never has had) any such evidence.

194. The Final Disclosures do not specifically allege or include any evidence of unauthorized copying of System V code in Linux by IBM, unauthorized distribution of Linux by IBM or unauthorized preparation of derivative works by IBM relating to Linux. (See Ex. 54.)

What were they thinking? How could SCO's lawyers keep this going so many years? How could they even want to? Weren't they ashamed? Or don't they grok the tech? Was it all a cynical exercise in harassment? Could they ever seriously have thought IBM would settle over *this*?

My reaction on reading this document was how sad that the world was put through all this for absolutely no reason. How did they dare? And on what basis would anyone, let alone a retired judge, I couldn't help but ask myself, read a document like this and decide to go forward with this litigation? It's inexplicable to me. One thing is clear as a bell if you understand the tech: Linux doesn't infringe UNIX at all. That's what I get out of this.

Laws of nature, abstract ideas, and natural phenomena are excluded from patent protection. Diamond v. Diehr, 450 U.S. at 185. A claim that recites no more than software, logic or a data structure (i.e., an abstraction) does not fall within any statutory category. In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). Significantly, 'Abstract software code is an idea without physical embodiment.'Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007). The unpatentability of abstract ideas was confirmed by the U.S. Supreme Court in Bilski v. Kappos, No. 08-964, 2010 WL 2555192 (June 28, 2010).

It talks about ELF , Streams , all the oldies and goodies, the claims that survived Magistrate Judge Brooke Well's order granting IBM's motion to limit SCO's claims as a sanction. Most of SCO's list of allegedly infringed materials, filed by SCO under seal , was tossed for lack of specificity. It wasn't a long list, in any case, as you will see, judging from IBM's math.

I just noticed we never did this memorandum as text. Can anyone help by doing an OCR for us, so we can add it to our collection on Groklaw? Before you say yes, it's long, in two parts, IBM's Redacted Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-infringement (IBM's Tenth Counterclaim:

Part 1
Part 2

District courts should have discretion to award fees when a patentee was objectively reckless -- that is, filed or maintained a lawsuit with an objectively low likelihood of success knowing or having reason to know that it was likely to lose -- or when the court finds that the defendant vindicated an important public interest.

If we can't yet get rid of software patents as a category outright -- although, I must say, after reading about this case, you may agree we ought to -- at least savvy patent lawyers can tweak the system so it's not so lopsidedly awful. Yes, there are such patent lawyers. If you download the filings, you'll see that Michael A. Jacobs of Morrison & Foerster is on the Netflix legal team, along with Durie Tangri's Mark A. Lemley . So that drew my attention right off the bat. This case is important enough that amicus briefs have been filed by Amazon, Facebook, Microsoft, Oracle, Toyota, and others supporting Netflix's request for an en banc hearing. Let's take a look. I think you'll want to follow this one.

SCO then filed objections to Novell's list of costs. It got it whittled down slightly.

And here is SCO, submitting the same motion on the same grounds that the court said wasn't convincing the last time. Are they just going through the motions, so Novell has the annoyance and costs of having to file an opposition? One might begin to suspect. And no doubt Novell will oppose again. It wants to be paid. SCO even cites the same case [PDF] that didn't work for them last time, that Novell pointed out doesn't support their motion. What in the world is SCO thinking? Are they really trying?

I don't think SCO is giving this their all. Here's what never changes. SCO doesn't want to pay Novell anything if there is any way around it.

PLEASE TAKE NOTICE that the omnibus hearing scheduled in the above-captioned case for July 12, 2010 at 1:30 p.m. has been cancelled. The next omnibus hearing is currently scheduled for August 16, 2010 at 10:30 a.m.