Judge Dale Kimball has also denied SCO’s request for a jury trial, meaning that he will hear what remains of Novell’s counterclaims against SCO at a trial scheduled to begin September 17. Whatever the outcome of that trial, SCO will then have the opportunity to appeal his copyright decision.
In late August SCO asked Judge Kimball to issue a final judgment that Novell owns the Unix System V copyrights so that it could launch an immediate appeal while Novell’s counterclaims, including how much of SCO’s intellectual property licensing revenue Novell is entitled to, are decided at trial.
SCO had wanted to appeal against the ruling that Novell retained the Unix System V copyrights via the 1995 asset purchase agreement (APA) through which it sold its Unix business to the Santa Cruz Operation, a predecessor to the SCO Group, and the court’s decision that the APA means Novell is entitled to waive SCO’s breach of contract claims against IBM.
However, given that the trial is due to start later this month and last only four or five days, Judge Kimball decided that an immediate appeal was unnecessary. The court finds no compelling reason to separate these remaining claims for an immediate appeal given that the remaining claims in the case will be ready for appeal in two to three months, he wrote. Regardless of the outcome of the upcoming trial, there will undoubtedly be an appeal at that time. Thus, the first appeal would still be in the briefing stage when the second appeal was initiated.
He also denied SCO’s request for a jury trial on the grounds that the remaining claims in the case are matters of equity, rather than law.
The remaining claims boil down to whether SCO had the authority to enter into its SCOsource intellectual property agreements with Microsoft, Sun and others; whether the additional SCOsource licenses should be considered Unix licenses to which Novell is entitled to a portion of the fees; and how much of the fees from Microsoft, Sun, and other SCOsource agreements Novell is entitled to.
