The trial is due to start on September 17 but the two companies cannot agree whether it will be heard by a jury, how long it will last, or whether it will include arguments about how much of SCO’s intellectual property licensing revenue Novell is entitled to.
What it clear is that none of SCO’s claims against Novell will be covered at the trial. The core slander of title claim was dismissed by Judge Dale Kimball’s decision that Novell is the owner of the Unix System V copyrights, as was the of claim for breach of contract.
The joint status report filed by lawyers acting for both parties suggests that SCO has decided not to appeal. The parties agree that this claim is dismissed in its entirety, they wrote of both the slander of title and breach of contract claims.
The Lindon, Utah-based company’s breach of purchase agreement, copyright infringement and unfair competition claims are all stayed pending the resolution of an International Court of Arbitration hearing relating to the UnitedLinux agreement signed by SUSE and SCO in 2002, meanwhile.
Judge Kimball ruled earlier this month that Novell is the rightful owner of the Unix System V copyrights, that Novell had the right to waive SCO’s breach-of-contract legal claims against IBM, and that Novell was entitled to a portion of the $25.9m it earned from its licensing program.
How much of that revenue Novell is entitled to will be decided at trial, unless SCO can persuade the court that it does not have to make any payments after all. The parties agree that the Court’s Order finds SCO liable for breach of the APA (Asset Purchase Agreement) as to the Sun and Microsoft licenses, the joint status report said.
However: SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to a UnixWare license in the Sun and Microsoft licenses (or any other license), SCO did not breach the APA and Novell’s is not entitled to any apportionment of the Sun and Microsoft royalties (or royalties for any other license.
Novell believes that SCO’s argument had already been dealt with by the court order and plans to further investigate whether SCO breached its fiduciary duties by retaining SVRX royalties from SCO’s remaining SCOsource licenses.
Novell’s counterclaims to be heard at trial include two counts of breach of contract, two counts of declaratory relief, constructive trust/restitution/unjust enrichment, breach of fiduciary duty, conversion, and accounting.
The trial had originally been scheduled to last three weeks but will now be considerably shorter. SCO and Novell are still to agree how long would be appropriate and whether a jury will be required. Novell thinks not, while SCO originally requested a jury trial and is sticking to its guns.
