One more new filing from Wednesday, this one from SCO v. Novell. Here's the docket entry: 12/31/2008 576 MEMORANDUM in Opposition re [575] MOTION to Stay Taxation of Costs filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D, # (5) Exhibit E, # (6) Exhibit F)(Sneddon, Heather) **********************************************

You'll see that SCO, despite telling the media yesterday that it would file a plan today, meeting the December 31st deadline set by the court, instead has filed for another delay. Other interesting filings are: SCOGBK-639-4 -- pps. 4, 7 and 8, the winding up of the joint venture in China between China and its "partner". P. 7 mentions a company named Dascom. P. 8 has a notation "Research issues that a company will encounter if it does not receive audited financial statements SCOGBK-639 -- p. 8, the Dorsey & Whitney additional pre-petition bills they didn't notice until now apparently SCOGBK-641-1 -- the Stipulation between Novell and SCO regarding the trust money SCOGBK-643-2 -- p. 4 lists two objectors to the omnibus motion, Feraci and Llyod [sic] SCOGBK-644 -- the signed order based on the stipulation, regarding the constructive trust The stipulation and order resolve Novell's motion for a constructive trust and Novell seeking the monies now. The stipulation has SCO stipulating to the existence of a constructive trust in favor of Novell in the amount Novell asked for, and it puts the money into a trust account, to be disbursed to Novell if SCO loses on appeal on the constructive trust issue.

PJ is obviously having a well deserved break. While she is resting, Groklaw's timelines are still maintained. To keep you up-to-date, here is a raw summary on the recent filings. We hope you'll join us, the Groklaw technical team, in wishing Pamela all the best. Christmas and New Year are in sight. Take it easy.

The Open Invention Network, the Software Freedom Law Center, and the Linux Foundation have teamed up to create another tool to defend Linux from patents. It will be hosted by the NYU Peer to Patent folks, where Mark Webbink is now. It is called Linux Defenders, and that would be you, in that they are asking folks to provide prior art to block anyone else from patenting it. Over time, this could be very significant as a protective wall. Essentially, as I understand it, it works like this: Since it costs a prohibitive amount of money to file for patents, the workaround is defensive publication. That results in prior art which can then block patents on that prior art. Brilliant, my dear Watson. No kidding. This is a good idea. The Linux Defenders site describes defensive publication like this:Defensive publications, which are endorsed by the USPTO as an IP rights management tool, are documents that provide descriptions and artwork of a product, device or method so that it enters the public domain and becomes prior art upon publication. This powerful preemptive disclosure prevents other parties from obtaining a patent on a product, device or method that is known though not previously patented. It enables the original inventor to ensure access to the invention across the community by preventing others from later. So it's a cheap way to collect defensive prior art without having to apply for a patent. Of course, you can do that too. But most of us can't afford to get a pate

Free Software Foundation Europe's Freedom Task Force (FTF) and GPL-Violations.org have just formed a partnership that has released a guide to reporting and fixing license violations. "The best way to solve compliance issues is to prevent them happening in the first place", says Shane Coughlan, FTF Coordinator. "We work to support this by educating the community at large. When problems do occur, we want people to be able to share information and resolve them effectively." Of course, the ideal is for there to be no license violations, but when they happen, it's good to know how to handle it without making things worse. I notice that they suggest being careful about posting a suspected violation on a public message board. When I took a course in the GPL from the FSF some years back, from the US perspective, they said exactly the same thing. For one thing, most violations are not intentional, so why make it harder to resolve it by branding someone in public? There are better and friendlier ways. So what should you do instead? And if you are a business accused of such a violation, what are some tips to resolving it quickly and effectively? One, I see, on the top of the list is do acknowledge quickly receiving word of the allegation. Read on for the rest of their advice, based on their experience handling such matters.

This is for all you "freedom lovers" who got it in your heads that Psystar was fighting against EULAs. Here you go, a reader sent me Psystar's very own Psystar Public License, version 1.0. 1.0. Chortle. Get it while it's hot. That's my advice. Please allow me to give you a brief tour, hitting the highlights. We'll start with the opening paragraph: Please read this License carefully before downloading this software. By downloading or using this software, you are agreeing to be bound by the terms of this License. If you do not or cannot agree to the terms of this License, please do not download or use the software. OMG. You mean I have to agree to Psystar's terms or I can't use the software? Like... um... that meanie Apple? Wait. Wait. How can that be? I thought Apple was supposedly the "bad guy" and Psystar was going to liberate its code for the good of mankind? Folks, did you really think Psystar was fighting to overturn EULAs and set software code free? If you did, please keep reading.

OK. I'm kidding around. It's probably just a form letter, not directed particularly to Boies or any other lawyers cc'd on the letter. It's from the Clerk of the Court of the Appeals Court for the Tenth Circuit. It's full of instructions, which will show you why appellate practice can be very annoying and why it costs you even if you paid your lawyer already ("In addition to the docketing statement, all transcripts must be ordered within 10 days of the date of this letter.... An original and 7 copies of briefs must be filed.") Given the history, you'll have to forgive me for smiling when I read the following:Motions for extensions of time to file briefs and appendixes are not favored and will not be granted unless they comply with 10th Cir. R. 27.3. They don't know the Boies Boyz like we do, huh? Well, time will tell who wins that battle. My money is on the BBs. Meanwhile, the letter answers a question I had, which is that in their opening brief, which must be filed soon ("within 40 days after the date on which the district clerk notifies the parties and the circuit clerk that the record is complete for purposes of appeal"), SCO can appeal any "appropriate" aspect of the case they want to, as they are not limited to the very brief notice of appeal. So, even though they only mentioned by name the August 2007 order and the final judgment, they can bring up the July 2008 decision and the decision on the earlier Novell motion to have a trial before only a judge, not by ju

Apple has filed a motion to amend its complaint [PDF] to add a claim of violation of the DMCA, among other new and enlarged claims. Here's the proposed Amended Complaint [PDF]. So, not only have all of Psystar's counterclaims been thrown out, but now it faces new claims. But here's the big news. Apple alleges that it believes there are corporations and/or individuals behind Psystar, who may be added as defendants once Apple in discovery finds out who they are. Woah. Here's the new paragraph that made my eyes bug out: 18. On information and belief, persons other than Psystar are involved in Psystar's unlawful and improper activities described in this Amended Complaint. The true names or capacities, whether individual, corporate, or otherwise, of these persons are unknown to Apple. Consequently they are referred to herein as John Does 1 through 10 (collectively the "John Doe Defendants"). On information and belief, the John Doe Defendants are various individuals and/or corporations who have infringed Apple's intellectual property rights, breached or induced the breach of Apple's license agreements and violated state and common law unfair competition laws. Apple will seek leave to amend this complaint to show the unknown John Doe Defendants' true names and capacities when they are ascertained. So, Apple apparently believes that somebody else is behind Psystar, which might help to explain why a major law firm would take on what seems like a fly-by-night's ca

Analysis on balance - Standardisation and Patents - by Georg C. F. Greve FSFE, President This paper provides an analysis of the interaction of patents and standards and finishes with some concrete proposals to address the most pressing issues. It was written under the assumption of very little background knowledge, and therefore provides some of the background necessary to understand the issue. An expert in the field should be able to skip the Background section. Introduction Software patents have been a hugely controversial debate, with lines of battle drawn primarily between large corporations holding large patent portfolios and engaged in multiple cross-licensing deals, and the Have-Nots, entrepreneurs, small and medium enterprises, and software users from the student using GNU/Linux all the way to institutional users in governments. This debate got a lot quieter with the rejection of the software patent directive in 2005. Its place in the headlines was taken by other debates, such as standardisaton. Open Standards have been a buzzword for years, but never has this term been discussed more intensively. On Wednesday, 19 November 2008, both debates met in Brussels at a workshop titled "IPR in ICT standardisation", although "Patents in ICT standardisation" would have been a more suitable name because the discussion was exlusively about the interaction of patents and ICT standardisation. Patents and standards are f

I found a treasure on YouTube. Harvard's Berkman Center for Internet & Society has a channel on YouTube now. And they held a conference in September on the US antitrust trial against Microsoft, collecting many of the players in that famous litigation, including David Boies. So it's your opportunity to see him in action. As usual, he's impressive. I think you'll find his explanation of trials as morality plays intriguing. He talks about highly technical trials, and how the judge finally has to decide who he believes, based on credibility. In the SCO context, I'd say that might not be a winning strategy. : D Microsoft's general counsel, Brad Smith, was there too, although he wasn't at Microsoft at the time, but he is refreshingly candid about that trial, saying you can't put lipstick on that pig. He goes on to talk about his efforts to start a new chapter for Microsoft, which I found interesting in that it provides some context into Microsoft's efforts to be less obviously horrible about interoperability, even if you view what is said with one cynical eye open. In any case, fairness alone would cause me to mention it to you. Truth is complex and multi-faceted, and it's really fascinating stuff.

I was trying to figure out how to explain to you all that is involved in the case of the U.S. v. Lori Drew, the cyberbullying case that so many lawyers are expressing concerns about. I felt I needed a lawyer to explain it, but where would I find one who felt like doing some unpaid work, and over the Thanksgiving holiday to boot? Then I had a brainstorm. I could show you the amicus brief [PDF] submitted in the case by the Electronic Frontier Foundation, the Center for Democracy and Technology, and Public Citizen, which was also signed by "14 individual faculty members listed in Appendix A who research, teach and write scholarly articles and books about internet law, cybercrime, criminal law and related topics at law schools nationwide". Appendix A is at the very end. If you look at the list, you'll see that it's some of the finest and most knowledgeable lawyers and law professors specializing in cyberlaw. The brief was written by Jennifer Granick of EFF and Philip R. Malone of Harvard Law School's Berkman Center for Internet and Society's Cyberlaw Clinic. I think when you read it, it will turn your hair white. It did me. In fact, I don't think it's overstating it a bit to say that unless this case is overturned, it is time to get off the Internet completely, because it will have become too risky to use a computer. At a minimum, I'd feel I'd need to avoid signing up for membership at any website, particularly MySpace. Why particularly MySpace? The Times Onl

The clerk that handles sending on notices of appeals for the US District Court for the District of Utah has sent SCO a letter, letting it know that the notice of appeal has been filed with the US Court of Appeals for the 10th Circuit and providing SCO with instructions, including to download the rules and forms from here. Just read the letter, and you'll immediately understand what appeals are like. This is just the beginning, of course. SCO has to do a lot more than file a notice of its appeal. Next the SCO lawyers have to tell the Court of Appeals exactly what they think was decided wrongly at the lower court level. I would guess that was mostly written some time back, beginning in August of 2007, with refinements added after July of 2008. Really, lawyers plan the appeal from day one, as far as strategy goes. So much paper. So many picayune instructions. So much is at stake, and all of it depending on your lawyer getting every detail just right. To me, reading the instructions is a lot like reading IRS tax booklets, but without the refreshing illustrative examples. It's a legal specialty, actually, doing appeals, because not everyone can stand it.

SCO has filed a notice of appeal in the SCO v. Novell litigation, as they said they would: 567 - Filed & Entered: 11/25/2008 Notice of Appeal Docket Text: NOTICE OF APPEAL as to [377] Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,, [565] Judgment filed by SCO Group. Appeals to the USCA for the 10th Circuit. Filing fee $ 455, receipt number 10880000000000796676. (Hatch, Brent) Here's the website for the US Court of Appeals for the 10th Circuit, which is where we are headed. You'll see at the bottom of the page a link to download some of the initial paperwork that SCO's attorneys are filling in these days, along with instructions. If you read the instructions, you'll get a taste of what appeals are like. It's below the notices about the resignation of one of the judges after allegations of judicial misconduct. There is also a link for a PDF of instructions for filing a petition for review. Here are the Rules and Forms and 2008 Federal Rules of Appellate Procedure and Tenth Circuit Rules (F.R.A.P. effective Dec. 1, 2007; 10th Cir. Rules effective Jan. 1, 2008). The answers to many of your questions about process and what happens in an appeal are in there.

The SCO bankruptcy plods right along. I predicted that the SCO bankruptcy hearing on SCO's First Omnibus Objections to Claims would be short, sweet, and simple, and the minutes of the hearing [PDF] indicate that is exactly how it went. We'll know more when the transcript is made public, but the only interesting detail I see in the rubber stamp session is that IBM sent a lawyer [PDF] to observe, presumably. What it means is that those who did not bother to respond to the objections just had their claims disallowed and expunged [PDF]. Also, Tanner got anointed for its new assignment as accountants to SCO. Is Tanner not the luckiest accountant firm in the world, or what? And the stay has been lifted [PDF] so that the IPO plaintiffs can go forward with that litigation against SCO, subject to the terms agreed upon, that any damages award against SCO will come exclusively from the insurance company and not the bankruptcy estate.

Let's conclude our series of articles on In Re Bilski by looking at what the ruling may mean for Microsoft's threats against Linux. We can start by figuring out what kinds of patents Microsoft might think it owns. We've already seen that Microsoft acknowledged in its amicus brief that it owns "process patents", which is the category that the ruling was addressing, and by submitting the brief, clearly Microsoft thought Bilski could impact its software portfolio. When the ruling first issued, you'll recall patent lawyer Gene Quinn immediately wrote that it was bad news for Microsoft, that "much of the Microsoft patent portfolio has gone up in smoke" because, as Quinn's partner John White pointed out to him, "Microsoft doesn't make machines." Not just Microsoft. His analysis was that many software patents that had issued prior to Bilski, depending on how they were drafted, "are almost certainly now worthless." Much of Microsoft's portfolio, then, must be process patents. He was not the only attorney to think about Microsoft in writing about Bilski.

Do you remember the horrible case against OLPC in Nigeria, where a company called Lancor claimed infringement of its design patent on a keyboard? They were asking for $20 million in damages. I have some happy news from OLPC News' recent newsletter:In the domestic Nigerian keyboard case, the court granted OLPC's motions to dismiss Lancor's claims. This means all of Lancor's claims against OLPC, Nicholas Negroponte, and Quanta were dismissed. Nicholas and Quanta are out of the case. OLPC will proceed with its request for a declaratory judgment in the matter. Many thanks again to the outstanding support from the legal team at Foley Hoag. I am not surprised, in that OLPC told the court it never used the Lancor keyboard and the design registration Lancor relied on had expired. However, early news from the local court had been discouraging, but now comes this, and so another bogus claim bites the dust. But it's a crying shame a charity had to go through something like this at all. I'll try to get us more details, but I wanted to share this with you right away. Update: I have been in contact with the OLPC folks. This news is not about Nigeria. It's about the US case, where the OLPC Foundation asked the Middlesex Superior Court in Massachusetts for a declaratory judgment of noninfringement. Update 2: While I don't yet have the documents from the local Massachusetts court, I do have two documents from the US District Court in Massachusetts. Lagos tried to send the case

The final judgment [PDF] from Utah is here at last. It recites what the August 10, 2007 and July 16, 2008 orders said, but it also resolves the recent dispute over SCO's desire to voluntarily waive some claims and then bring them back to the table after an appeal, should it prove successful. Here's SCO's motion to voluntarily dismiss, and Novell's response, so you can verify that this judgment indeed represents another loss for SCO. You'll see that it was Novell that suggested the wording regarding SCO's voluntarily dismissed claims that we see in the judgment, that they be dismissed "without the possibility of renewal following appeal." SCO caved on its voluntarily dismissed claims, then, and Novell did not. So, another loss for SCO. No matter what happens on appeal, then, SCO can't resurrect those claims. It can appeal the rest of the matters it lost in August 2007 and July of 2008. Novell, however, in an identical circumstance, can pull its voluntarily dismissed claims out of its back pocket and go after SCO. And I'm sure it would. In the wording of the judgment, Novell has "the right to pursue these claims only in this action, should there be a subsequent adjudication or trial in this action." So if there were an appeal and SCO got the case sent back to Utah for a jury trial, for example, SCO's favorite daydream, then Novell could bring back to the courtroom all its voluntarily dismissed claims. Here, in contrast, is the wording on the SCO claims from th

SCO has withdrawn its "Motion of the Debtors for an Order Providing that Creditors' Committees are not Authorized or Required to Provide Access to Confidential Information of the Debtors or to Privileged Information", which it filed in September of 2007, when it first filed for Chapter 11 bankruptcy protection. Remember that? They filed it back when SCO thought someone might care enough to actually form a creditors' committee. But since that never happened -- the top 20 unsecured creditors (SCO Group's and SCO Operation's list, PDFs) being mainly friends and allies of SCO -- it obviates the need to protect SCO's secrets from any such committee. There was supposed to be a hearing on that back in October of 2007, but that never happened, and so now for some unknown reason, they are clearing it off the docket.

There is a bankruptcy hearing scheduled for November 20th, and there's a Notice of Matters Scheduled for Hearing [PDF] just filed that tells us that the issue of the constructive trust has been resolved "in principal" and there will be a stipulation or consensual order filed. Good Golly, Miss Molly. Is Novell finally going to see some of its money from SCO? Has somebody sprinkled fairy dust in the air or something?

Psystar's counterclaims against Apple have been dismissed, which does not in the least surprise me. I told you they were off the wall, in my view. The judge agreed. He curls his lip to add that he found Psystar's cases "unenlightening". That's legalese for "are you kidding??" Here's the order [PDF], so you can read all about it.The judge did give them 20 days to try again to get it right, following the map he lays out for them to make improvements:For all the above-stated reasons, Apple's motion to dismiss Psystar's counterclaims is GRANTED. Psystar may move for leave to amend within twenty calendar days of the date of the entry of this order. Any such motion should be accompanied by a proposed pleading and the motion should explain why the foregoing problems are overcome by the proposed pleading. Plaintiff must plead its best case. Failing such a motion, all inadequately pled claims will be dismissed without further leave to amend. For more background, here's Apple's motion to dismiss, Psystar's Memorandum in Opposition [PDF], and here are Psystar's counterclaims to Apple's complaint. What does it mean? It means the counterclaims are gone, and with them any motivation to settle on Apple's side, I'd think, and the complaint remains, unless Psystar can plead its best case within 20 days. Dum dee dum dum.

SCO, or more precisely, SCO Operations has filed an amended Schedule F [PDF], its list of unsecured nonpriority creditors, or in bankruptcy lingo "creditors holding unsecured nonpriority claims". Here's the original Schedule F [PDF], if you wish to compare the lists. Schedule F is found on page 7 of the older PDF. It is interesting to compare, even without fully understanding what it all means.

Well. I got a very nice note from Gene Quinn. He's reading Groklaw. I'm reading what he is writing, because it's fascinating, and it's an opportunity to speak directly with a patent attorney who is a true believer. His most recent article is one I think we should answer, since his fundamental question is this: why should software *not* be patentable? From a conceptual standpoint why not allow for software to be patented. What is the harm? I know many of you reading this have now gone into an apoplectic rage, but conceptually why should software be treated any differently? Isn't the problem that patent offices, particularly the United States Patent Office, are increasingly doing a poor job of finding relevant prior art and weeding out what is new and non-obvious from what is old and obvious? If prosecution were more meaningful, what is the harm in granting software patents? I see none because there is none.... Software is not a mathematical equation, nor is it a mathematical language. How anyone who writes software or professes to understand software could argue to the contrary is beyond me. Do people who write software actually think they are sitting down and writing mathematical equations and stringing them together? It is absurd to have such a narrow view of software. When you write software you are trying to enable a device, such as a computer, to provide certain functionality given a certain stimulus. So you are writing instructions for a computer or other device a

More bills are in for SCO to pay in the bankruptcy. Tanner, Berger Singerman, and Pachulski Stang all have filed for mo' money. From the bills, we can discern through a glass darkly what's been going on. Here's what: the Swiss SUSE arbitration shows activity. You can find it on page 11 of Berger's Exhibit A, where we see a notation that SUSE has filed a "submission" to the tribunal. It references "SUSE arbitration statement to tribunal" also, but it could be the same thing. This happened on 10/1/08. And what else? Research and strategizing on the plan went on in October, which to me points to work on a cramdown. You don't have to research and strategize over a wonderful plan where sufficient money is available for one and all from a fabulously rich prince on a camel. At least by the end of October, there was just researching and strategizing happening, from what we can see in the bills.

It turns out that Stephen Norris did attend SCO's Tec Forum after all, at least according to SCO's latest SCO Partner News newsletter someone sent me. He expressed that SCO's strengths are its customers and its products. That's why the investors he says he represents are "so excited about the business prospects of working with SCO" and in particular because of SCO's commitment to backward compatibility of "all its products -- going all the way back to Xenix". Hmm.

I said I'd write next about Microsoft in my series of articles trying to explain what In Re Bilski means. I also said it would be the last in the series, but it's not. I'm sorry it took me so long, but I decided as I was constructing the article that without the full text of the amicus brief Microsoft filed in the Bilski case, it was almost impossible to be comprehensible. So I took the time to do the text version of the PDF. You'll also want to have the decision [PDF] itself handy. The text version we did of the Bilski decision is here. The Microsoft brief was filed along with Dell and Symantec, and it's an attempt to get the court to deny the Bilski claims while at the same time trying to keep the court from going all the way and deciding software should not be patentable. There are some logic bumps along the way, as you will see. The court diverged from Microsoft's argument about three-quarters of the way through, and it didn't directly address software patents, except in one footnote, mainly because Bilski wasn't about software. So it left unaddressed Microsoft's chief argument about why software should patentable, namely because of what it does to a computer. There will be future cases, though, that certainly will be on this point, so it seems a good time to point out everything we can think of to help the court understand what's wrong with the Microsoft-Dell-Symantec position. I'll start, but jump in any time. You'll see more than I will, since so man

Continuing our series on the In Re Bilski ruling [PDF], here is Judge Mayer's dissenting opinion as text, the one that points out how utterly damaging all business methods patents are. Also, a reader sent me this link to what I agree is the best overview of the ruling that we've seen yet, by the law firm of Ladas & Parry. It sticks to what the ruling says, as opposed to predictions of what it might mean. Here's how they paraphrase Judge Mayer's dissent: The decision is too complicated. State Street should have been over-ruled and patents confined to technological inventions. Clear and simple. And if I might be allowed, Amen. But that might be a little too simplified. Here's a more substantive taste of Mayer's dissenting opinion, in his own words: The en banc order in this case asked: "Whether it is appropriate to reconsider State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999), in this case and, if so, whether those cases should be overruled in any respect?" I would answer that question with an emphatic "yes." The patent system is intended to protect and promote advances in science and technology, not ideas about how to structure commercial transactions. Claim 1 of the application of Bernard L. Bilski and Rand A. Warsaw ("Bilski") is not eligible for patent protection because it is directed to a method of conducting business. Affording

SCO has filed a Statement Regarding Entry of Final Judgment [PDF], responding to Novell's Response to SCO's Notice of Voluntary Dismissal , which asked the court to confirm the amount of the constructive trust the parties have agreed to and to make SCO pay it now, which in turn followed SCO's Notice of Voluntary Dismissal. It's breathtaking to me. SCO actually argues, quoting selectively from the trial order's wording, that while one clause of the 2003 Sun agreement was not authorized, the rest of the agreement was, and in fact in the judge's "nuanced" trial order, that's what he meant, that SCO was authorized to enter into the agreement except for that one itsy bitsy part. Just excise that one clause, and what do you get? An *authorized* agreement. What? Don't hyperventilate. SCO does this. Here's the part of the July 16, 2008 trial order SCO *doesn't* quote from: The Court concludes that Sun's 2003 Agreement License, therefore, "concerns" a buy-out, and SCO was required to follow the additional restrictions imposed by Amendment No. 2 on transactions that concern buy-outs. SCO did not comply with these terms. The Court thus concludes and declares that SCO was without authority to enter into the 2003 Sun Agreement under Amendment 2, Section B, of the APA. Do you see any wiggle room there? Any lack of clarity on the judge's part? If so, send your resume to Boies Schiller right away. They might have use for you.Joke. Joke.

We need to take a quick break from the Bilski series because there are a number of filings in the SCO bankruptcy, including a notation in one filing that seems to indicate that SCO is considering resurrecting the name Caldera International. Take a look at this, Exhibit D [PDF], attached to Dorsey & Whitney's 9th monthly application for compensation. On page 9, we see two notations: 08/11/08 - D. Marx - 0.15 40.50 - Discuss foreign qualification issues of the Company's subsidiary, Caldera, with C. Peters 08/11/08 - C. Peters - 0.15 25.50 - E-mail correspondence with J. Bingham regarding Delaware reincorporation of Caldera International, Inc. What are they up to now? Are they thinking of returning to that name? As in, never mind? Or is there a plan for a new subsidiary? Update: Page 4 is interesting too. A notation references "notification of change of directorship of ME Software" on 8/19/08. On the 21st, you see emails "regarding change of directors". Then on page 10, there are some notations regarding China, including one that reads "Review and revise termination of joint venture agreement." Hearing November 20th -- I see there is going to be a hearing [PDF] on the SCO Omnibus Objections on November 20, 2008 at 9:30 AM, so if you are involved in that, you'll want to make arrangement to be represented there, by phone, by attorney, or in per

Let's start here, the official bios of the justices that serve on the U.S. Court of Appeals for the Federal Circuit, the court that just rendered the ruling in In Re Bilski [PDF]. It will help us to understand their point of view, and that will make us more effective in responding. You'll have to make an effort to look at things from a different angle, since most of us feel so strongly that software patents are a curse on development and innovation. But it's worth it to try, if only so as to formulate arguments that can be effective in trying to help them, and those who think as they do, to realize that there is something new in the patent world, a development model that depends not on closing others out but on collaboration and shared science.

I know you want me to explain what the recent Bilski decision [PDF] means, because you are writing to me. I've shown you some of the apoplectic reactions from the patent bar. But what does it mean to us, to FOSS? First, in a simplified nutshell, here is what Bilski means to everyone: You can't get patents any more on a pure mental process. You can no longer patent a process that you can think through all in your mind. In other words, abstract ideas are not patentable. There has to be either a particular machine or a transformation in the process. So pure "ideas" or "mental processes" are over. That means most business methods patents are no longer valid because they are outside the parameters of what is eligible for patenting. In simple terms, it means this: The End for the stupidest of the stupid patents. Yay! It means that the tide is turning. There could still be an appeal of Bilski, and even without one, there are ways to chip away at this decision's new standard for patentability, to try to get over the new turnstile, so to speak, and strategies on how to do that have begun already. I've spent the days since the decision issued researching for you, so I can explain Bilski to you. There is too much material for just one article. So, I'll break it up into parts. My purpose is to make sure you understand fully, so you can be helpful with your ideas and so you can explain this issue to others, so they understand what is involved for FOSS. If there are parts yo

Novell has filed its Response to SCO's Notice of Voluntary Dismissal. It's ascerbic and funny as can be. It shows the court each and every tricky bit it thinks SCO might just be angling for. I saw in the email exchange between the SCO and Novell attorneys that were attached to the David Melaugh Declaration that SCO has stepped on Novell's last nerve with its trickiness. And here we see the result. Novell points out each and every conceivable thing SCO might be trying for, leaving nothing for SCO to try later.

There are more bankruptcy filings in the SCO bankruptcy, including two that sent me on a deep search for what they mean. Tennessee's Department of Revenue has filed two Withdrawals of Claims, for claims 110 and 111. Why would Tennessee do that, I wondered? Are they giving up on getting paid? The amounts of the claims are a little over a thousand on one and a little over five thousand on the other. Had they decided it wasn't worth fighting for? Or was there a plan to go after SCO in some other way? After hours and hours of research, I confess I am not sure what it means, bankruptcy not being my field. But if someone put a gun to my head and told me to tell what I think after all the research or else, I'd say my best guess is that Tennessee realized that SCO doesn't owe them those sums after all. I learned some interesting things about withdrawing claims, though, which I'll share with you.

Pop some champagne! The Appeals Court decision [PDF] is in on Bilski: I'm still reading it, but on first quick reading, one thing is clear: it's a win! Eligible patent matter just got smaller. Here's a snip from the opening: We affirm the decision of the Board because we conclude that Applicants' claims are not directed to patent-eligible subject matter, and in doing so, we clarify the standards applicable in determining whether a claimed method constitutes a statutory "process" under § 101. This was an appeal against a rejection of a business methods patent, and the appeals court has now agreed with the rejection. At issue was whether an abstract idea could be eligible for patent protection. The court says no. Buh-bye business methods patents! [Most of them: see update.]

Here we go. Novell has filed a motion asking the bankruptcy court to confirm the constructive trust amount and order SCO to pay it now: 586 - Filed & Entered: 10/29/2008 Motion to Approve (B) Docket Text: Motion to Approve Order Confirming Constructive Trust and Directing the Debtors to Pay Funds to Novell Filed by Novell, Inc.. Hearing scheduled for 11/20/2008 at 09:30 AM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. Objections due by 11/13/2008. (Attachments: # (1) Notice # (2) Exhibit A# (3) Exhibit B# (4) Proposed Form of Order) (Poppiti, Jr., Robert) The parties have agreed on the amount to put in the constructive trust, Novell reminds the court, $625,486.90, "based on an uncontested reading of trust tracing law and SCO's relevant daily balance information" regarding the Sun SVRX royalties that the court concluded were Novell's from that deal, $2,547,817. What they don't agree on is when SCO should pay it.

All right. We can't be serious about SCO all the time. Time for a laugh. And this is funny. Thanks to Christopher B. Wright's using a Creative Commons license for his cartoons, we can add this one to our permanent collection. Enjoy. P.S. I also love Ubersoft's phrase at the top of the page: UBERSOFT. We Patent, So You Can't. That captures the spirit of the patent system well. I enjoyed Help Desk's take on a reorganization plan for SCO. Someone file this in court, please, the second SCO's exclusivity time period to come up with a plan runs out. Kidding.

SCO Group and SCO Operations have filed the monthly operating reports for September. Also Pachulski Stang filed its 11th monthly bill, which covers July, meaning there are more bills to come. I find page 15 of SCO Operations' filing [PDF] fascinating. Am I going nuts or is SCO sending money to the foreign subsidiaries? Take a look.

Google has reached a settlement in the litigation over its Google Books feature. The settlement is complex, but on a quick look, it seems a bit like radio paying into a copyright clearinghouse to be able to play music. It has agreed to sell books and then pay 70% of revenues to authors via a "Books Rights Registry" being established; and Google also will pay the Registry 70% of net advertising revenues. It's a good arrangement for Google and for the authors. For fair use, I'd call it a loss. Nevertheless, Google Books is still awesome. It hasn't been officially approved yet by the court, but it's reasonable to expect it will be. The parties will each call it a win, of course. Google: Today we're delighted to announce that we've settled that lawsuit and will be working closely with these industry partners to bring even more of the world's books online. Together we'll accomplish far more than any of us could have individually, to the enduring benefit of authors, publishers, researchers and readers alike. You can read the settlement in full. Here's the proposed Order [PDF], which one can opt out of, as it explains, or object to if you are in the settlement class. Here's the money part [PDF], who gets what. Google can continue Book Search, but books commercially available are in a "No Display" category. In addition, any author can opt out totally. We will have access to more books online now, according to Google's explanation.

Dave Hitz, CEO at NetApp, has posted his view on the latest happenings in the NetApp v. Sun patent litigation. Sun's General Counsel, Mike Dillon, recently described the outcome of the Markman hearing, which Sun was pleased with, and he also announced that the USPTO has agreed to reexaminations of several of NetApp's patents, including agreeing to a reexamination of the '292 patent [Order]. Hitz says NetApp has more patents even if these are invalidated, and he asks some questions which I'd like to answer. He questions the motives behind Sun's request to the court for a stay in the proceedings while the validity of the patents are decided. He seems to view that as Sun dragging its feet, and he asks if Sun's request indicates a lack of confidence in its position. I'll bet your answers will be a lot like mine, particularly if you've had your SCO inoculations.

You have to read this. Do you remember when SCO tried to accuse IBM of spoliation, albeit unsuccessfully? If so, you will enjoy reading this ruling, where a New York judge actually agreed with a plaintiff that the defendant had deliberately destroyed computer evidence. It's a case from the Eastern District of New York. That would be either Brooklyn or Central Islip. It's hard to be sure without checking outside the four corners of the order, because quick checks on the companies mentioned in the order turn up nothing at all for most of the names and the only info on the one I could find anything on shows that the company has changed name servers 23 times in five years and is now on servers in Las Vegas, if you know what I mean, despite being apparently in Ramapo. So that would indicate Central Islip. When I read it, the first thing that entered my mind was that it's a warning not to use IE or Windows. But really it's more a warning about how hard it is to spoliate evidence in the digital age and get away with it. You should never destroy evidence anyway, whether someone will catch you or not, but I couldn't help but wonder how these folks, assuming the judge is correct, thought they could get away with it. You'll note the alibi in what the judge writes. If you are a lawyer, you most especially need to read this, particularly if you or your clients use Microsoft Windows. It's a clear cautionary warning about the lack of privacy in proprietary software. There may b

Well, this is perfect. SCO's plans for the future surfaced at TecForum 2008 in a presentation they've put on their website, so we can all have a laugh together. Here's the plan. It's all so vague, maybe it'd be more accurate to call it SCO's hopes. They -- yes, they, since Stephen Norris appears on page 39, under the header: Opportunity -- spin off the company's assets, leaving SCO Group the Litigator as an empty shell, or nearly empty, to pursue the litigation. With Darl at the helm, maybe, if I recall their most recent word on that subject. That way, if they lose all the lawsuits -- how could *that* ever happen? -- the titular winners of the litigation, IBM, for example, will be unable to get any assets at all from SCO. Sounds fair to them. They get to sue you for everything you own if they win, but you get nada if you win. Tails SCO wins, heads you lose.

Some of the creditors that SCO tried to toss out of the lifeboat with its First (Non-Substantive) Omnibus Objection to Claims are starting to show up, evidently mad as can be, to support their claims. And Pachulski Stang has filed a quarterly bill. However, I worry that the responses to SCO's objection may not be sufficient to achieve the intended goal. IANAL, though, so ask one. What I think stockholders are supposed to do is file an amended proof of interest, providing whatever was missing from the initial filing, whether attaching a copy of the stock certificate or whatever else was the original problem. The reasons could vary, so there is no blanket instruction. If you care about your interest and/or claim, depending on why you are on the list, then, you really need to ask a lawyer to help you. This is all about getting the details right. I see one of the filings asserts that one of the lawyers at Pachulski Stang is representing him, but I fail to see how that can happen, since Pachulski Stang represents SCO. Just saying. Seriously. Ask a lawyer to help you get this right. You can pay a lawyer for a visit, where he or she tells you how to amend a claim, and then do it yourself, if your funds are limited. You're allowed to appear pro se, including at the hearing by phone even, but you still need to know what you are doing. SCO's lawyers are not your lawyers. They are paid to help SCO, not you. That's how I'd see it, anyway. SCO's motion tells you exactly wha

All right. I wanted to goof off yesterday, but the amount of silly stories about the Apple v. Psystar case drove me to do some real digging and then write an article to try to tell you the real story. Here is the bottom line. Neither party is running and hiding from an open court. Neither party has given up or given in or decided to settle. It was the judge that sent the parties to ADR. Alternate Dispute Resolution, or ADR, is a process that the US District Court for the Northern District of California pushes in civil cases. They recommend it, but it doesn't block the litigation from going forward. It's also not binding on the parties. And it's not necessarily secret if an agreement is reached. Which I doubt. I will show you the details on how it works. Here's the latest, by the way: Psystar had just filed a Memorandum in Opposition to Apple's Motion to Dismiss Psystar's counterclaims. The hearing on that will be on November 6. So. Onward.

Finally, it's here: 561 - Filed & Entered: 10/20/2008 Notice of Voluntary Dismissal Docket Text: NOTICE of Voluntary Dismissal of Its Unresolved Stayed Claims With Prejudice filed by Counter Defendant SCO Group (Attachments: # (1) Text of Proposed Order) (Normand, Edward) 562 - Filed & Entered: 10/20/2008 Reply Memorandum/Reply to Response to Motion Docket Text: REPLY to Response to Motion re [554] MOTION for Entry of Judgment and in support of [561] NOTICE of Voluntary Dismissal of Its Unresolved Stayed Claims With Prejudice filed by Counter Defendant SCO Group. (Attachments: # (1) Text of Proposed Order Proposed Final Judgment)(Normand, Edward) Whoa. Is SCO throwing in the towel on these claims? Update: I knew there had to be a trick. If you read the Proposed Order, it's chock-o-block full of materials you don't find in the reply memorandum, and it looks to me like SCO is trying to dismiss with prejudice not only its own claims, but Novell's too. Huh? I have all the documents as text for you. See what you think when you read them. Oh. I just noticed something else. They ask the court to rubber stamp their thought that execution of the court's orders in August of 2007 and this July should be stayed until the automatic stay is lifted by the bankruptcy court in Delaware! But ... sputter... choke...pass out with laughter... it was already lifted regarding this Utah business. Man, oh, man. They don't want to have to pay Novell. They'd rather spend t

Well, it's time for SCO's Tec Forum, which is what SCO is calling SCOforum this year, and lest the company's press releases get lost to paid services someday and disappear behind their drawbridge, and in harmony with our goal to provide historians with the entire picture, here are a couple of press releases that went out today, one about an upgrade to SCOoffice Server and the other about SCO Mobile Server SDK availability. In case you want to replace Microsoft Exchange with SCO's product or want to help them develop Me Inc., now you have a way. Some of you will recall that Jeff Hunsaker said this would be perhaps one of the most significant SCOforums in history, and the earlier press release used a quotation from Stephen Norris in which Norris used the royal "we" regarding SCO, the company:"It is important for SCO customers to understand that we are committed to provide them with world-class products and services," said Steve Norris, Chairman of Stephen Norris Capital Partners. "SCO Tec Forum is an important opportunity for my team to get to know SCO's customers and partners better. We have been impressed with the loyalty and commitment we have seen from SCO's customers and partners during our due diligence, and we will reciprocate," said Norris. So one can't help but wonder if there will be any news on that front. Anybody there from Stephen Norris Capital Partners? I'm sure you share my curiosity about any results from on the Middle East money-hunting safaris Darl told

This is so funny. Yet another "history" of Linux. I'm deep into writing an article on the Apple-Psystar litigation, to rebut some of the absolute nonsense I see being written about it, but I have to take a brief detour to share something with you, so you can laugh too. I put in News Picks a couple of days ago the farewell letter of ex-hedge fund manager, Andrew Lahde, who is one of the few who predicted the current Wall Street meltdown, and one of the things he suggested was that great minds get together and come up with a new "system of government that truly represents the common man's interest....This forum could be similar to the one used to create the operating system, Linux, which competes with Microsoft's near monopoly." This seems to have seriously twisted someone's neurons in a bunch, and here's part of Dennis Byron's response on Seeking Alpha:Linux was created by IBM, HP (HPQ) and other former IT systems monopolists that realized that Microsoft was taking their systems monopoly away from them. IBM, HP, Digital Equipment (now part of HP), etc. had banded together for this purpose in the early 1980s while Linus Torvalds, the nominal creator of Linux and who now works for one of the groups IBM, HP, etc. put together for its trust-like purposes, was still in short pants. Ten years later, the consortium chose a small piece of software code, "forked" by Linus from some other code while he was in college, to complement the still ongoing technical development effort by

Ina Fried has an interview with "Microsoft's top intellectual property lawyer", Horacio Gutierrez, and Gutierrez directly threatens to sue any company, like Red Hat, that refuses to sell out and do a patent deal like the one Novell signed up for:"If every effort to license proves not to be fruitful, ultimately we have a responsibility to customers that have licenses and to our shareholders to ensure our intellectual property is respected," he said. So, more threats to try to force Red Hat to sign a deal that violates the GPL and that the GPLv3 makes very interesting in effects for Microsoft. I almost hope they mean it this time. Talk about anticompetitive use of patents, though. Nothing but the destruction of the FOSS development model and chosen license structure will do. No one I know, including FOSS lawyers, is losing any sleep over these threats.

After reading about the ACAP system that Copiepresse is pushing to regulate access to content, I decided to take a closer look at the system of selling older articles that were free on the Internet when they first appeared. One company alone, Highbeam, says it provides access to 3,500 publications, like the Chicago Tribune, Harpers, and the Washington Post. They also offer older press releases, in case you have too much money cluttering up your wallet and want to buy to read one. Here's how Highbeam describes itself: HighBeam is an online library and research tool for individuals, students and small businesses. We collect millions of research articles from published sources and put them all in one place. Library, to me, means you can read for free forever. This is a paid library. I was researching trying out Google's new system for News whereby it makes older articles available by year, and I was using in particular those from the 1990s. Here's a sample results page. Look at how many on that list are press releases now subscription only, 13 out of 14. The last is an article from 1994 you could have read for free at the time. Actually, you still can find some of the materials for free elsewhere. I'll tell you how to find things like that, now that publishers are trying to close off the Internet.

It's been more than a year since we had an update on the Copiepresse litigation against Google. There was supposed to be another court hearing in September, but it was postponed and last I heard it will be in November. In case it actually happens this time, Sean Daly has done the Copiepresse summons to Google for us in English as text. Most of us have wondered from day one why Copiepresse didn't just use robots.txt to tell Google and other search engines what it wants left alone. Google did show them how, if you recall, and they agreed to use it. It turns out that publishers Copiepresse represents felt robots.txt was not sufficiently fine-tuned. So Copiepresse is now busy evangelizing for a system called ACAP, which stands for Automated Content Access Protocol. I'm sure you love the very sound of it. Well, if you are a publisher of the old fashioned variety, you may start drooling on your tie when I tell you it's a use and permissions system. I'll tell you all about it, but the short version is that it's an extension to robots.txt to give all control to publishers over their work by regulating what search engines can and can't do. It's a concept trying to solve a real problem, namely how to set up machine-interpretable permissions so that neither search engines nor publishers have to individually negotiate permissions. But it's also Larry Lessig's Code and Other Laws of Cyberspace come true. They read his book and thought it was a great idea, I gather, and

I don't want to overstate anything, but I can't help but notice that Berger Singerman's 13th bill has just been filed, and it includes this intriguing notation on Exhibit A [PDF], the breakdown of how it spent its hours in September on SCO's behalf:9/26 - AJS - Review Memo by I. Marcushamer Regarding Cramdown of Stand Alone Plan and Prepare Correspondence to Him Regarding Same - 0.20 A cramdown is exactly what it sounds like, I gather from my research, a bankruptcy court's approving a reorganization plan over the objections of one or more creditors. I say I don't want to overstate it because lawyers are supposed to research all likely and even reasonably conceivable alternative possibilities, so this doesn't necessarily mean that the hopes for cash infusions are over. It does indicate that SCO's lawyers are at least thinking about the alternative, having to do a standalone plan that at least some creditors might not like so very much. And creditors do get to vote, or more accurately some creditors do. Other interesting tidbits from the exhibit are several interfaces with Boies Schiller guys, including Ted Normand helping to prepare Darl for his testimony at the most recent bankruptcy hearing and "Mauricio" discussing the "Novell constructive trust issue", Mauricio presumably being Mauricio Gonzales of Boies Schiller.

Tanner has filed with the bankruptcy court in Delaware a motion [PDF] asking the court to approve an expansion of its work for SCO. It projects for the year ahead that it will do SCO's annual report, its 4 quarterly 10Qs, and the required Sarbanes-Oxley Act Section 404 audit statements. Exhibit A [PDF] is the October 3, 2008 letter from Tanner to the Audit Committee of the Board of Directors of SCO, and specifically to Dan Campbell, its Chairman. It memorializes the understanding between the two companies, and in it Tanner outlines exactly how unlikely it is to find any fraud or other illegal activity in its audit, Sarbanes-Oxley or no Sarbanes-Oxley, and how it's SCO's responsibility to inform Tanner about any such misbehavior. On its honor. That's my reading anyway. Well, if you can't trust SCO, who *can* you trust? I can just imagine how glowingly SCO will find it has done its job, I'm sure. And then Tanner will attest to it, and then they'll submit the bill, and presto, change-o, mo' money. No wonder Wall Street is collapsing, if this is how it's regulated.