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No jury for SCO vs. Novell
Sep. 10, 2007

SCO wanted a jury to hear its side of the story in its Novell lawsuit, but U.S. District Court Judge Dale Kimball has ruled that he, and he alone, will hear the case.

The last few weeks haven't been good ones for litigious Unix company SCO. First, Kimball ruled in early August that Novell, not SCO, owns Unix's IP (intellectual property) rights. This, in turn, cut the legs out from underneath SCO's cases against IBM and other Linux-using companies.

On Aug. 29, SCO asked the court to enter a final judgment on the Unix ownership issues so that it could seek an immediate appeal to this decision. On Sept. 7, the judge told SCO that it wouldn't be getting its appeal.

In his ruling on this, Kimball wrote that SCO had no "just reason for delay of entry of final judgment in light of the strong policy against piecemeal appeals." After all, Kimball continued, "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. Regardless of the outcome of the upcoming trial, there will undoubtedly be an appeal at that time."

This trial, Kimball continued in the next part of his ruling, will not be heard by a jury. The judge went into great detail as to why this case need not be heard by a jury, but it all boils down to, as Pamela Jones, editor of Groklaw put it, "Novell is seeking only equitable relief," since the court had already ruled in Novell's favor on the other issues, such as breach of contract, which would require a jury trial. So it is that SCO will not have a chance to razzle and dazzle a jury.

Next on the legal agenda for SCO is what should be a minor hearing on Sept. 11. On Sept. 17, the remaining issues in SCO vs. Novell will be heard by the judge.

According to Jones, there are only three issues left for this hearing. These are: "(1) Are additional SCOsource licenses, like the Sun and Microsoft licenses, 'SVRX Licenses' within the meaning of the APA [Asset Purchase Agreement]?; (2) What proportion of the payments received and retained by SCO from the Sun, Microsoft and additional SCOsource licenses should have been paid to Novell?; and (3) Did SCO have authority under the APA to enter into the Sun, Microsoft and additional SCOsource licenses?"

Even after the court rules on these remaining issues, Kimball has already noted that this will not be the end of SCO's legal war. He expects that SCO will appeal these decisions. For all its legal defeats, it seems that we can expect SCO to fight on in the courts well into 2008.

—Steven J. Vaughan Nichols


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