Novell’s said the minutes prove senior management approved the 1995 Asset Purchase Agreement (APA) on the understanding Novell would retain copyright over AT&T Unix.
The filing was made by Novell in support of its attempt to have Santa Cruz Operation (SCO) Group Inc’s slander of title action thrown out by US District Court for the State of Utah, hearing the case.
SCO brought the action against Novell in January, after the companies made competing claims over who is the rightful owner of the Unix operating system. SCO said Novell’s claims were damaging its Unix Intellectual Property (IP) case.
The action is important because it potentially influences the outcome of SCO’s larger, multi-billion dollar legal action against IBM Corp, for alleged breach of copyright and breaking the terms of a Unix licensing agreement. SCO says IBM broke its contract by putting portions of the company’s AIX operating system in Linux.
If SCO cannot prove it owns Unix, then the case against IBM will become difficult to sustain.
Novell’s filing followed a recent court submission by SCO, which the company said reinforced its claimed ownership of Unix. SCO submitted a declaration from former Novell employee Ed Chatlos who had been involved in negotiations between Novell and SCO over the APA.
Chatlos said: I believe I would have known if the parties had agreed that Novell would retain any UNIX copyrights.
Novell, though, dismissed the Chatlos submission: Mr Chatlos does not claim that he had a role in actually drafting any of the language of the APA, let alone the provisions currently under dispute. It is not clear from Mr Chatlos’ declaration whether he even read the APA at the time of the transaction.
Novell added the September 1995 board meeting provides: Contemporaneous, authoritative documentary evidence… that at the highest levels of the organization, Novell approved the transaction on the understanding that ‘Novell will retain all of its copyrights’.
