Congratulations! You have purchased an extremely fine device that would
give you thousands of years of trouble-free service, except that you
undoubtably will destroy it via some typical bonehead consumer maneuver.
Which is why we ask you to PLEASE FOR GOD'S SAKE READ THIS OWNER'S MANUAL
CAREFULLY BEFORE YOU UNPACK THE DEVICE. YOU ALREADY UNPACKED IT, DIDN'T
YOU? YOU UNPACKED IT AND PLUGGED IT IN AND TURNED IT ON AND FIDDLED WITH
THE KNOBS, AND NOW YOUR CHILD, THE SAME CHILD WHO ONCE SHOVED A POLISH
SAUSAGE INTO YOUR VIDEOCASSETTE RECORDER AND SET IT ON "FAST FORWARD", THIS
CHILD ALSO IS FIDDLING WITH THE KNOBS, RIGHT? AND YOU'RE JUST NOW STARTING
TO READ THE INSTRUCTIONS, RIGHT??? WE MIGHT AS WELL JUST BREAK THESE
DEVICES RIGHT AT THE FACTORY BEFORE WE SHIP THEM OUT, YOU KNOW THAT?
-- Dave Barry, "Read This First!"
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Final Judgment in SCO v. Novell: SCO Loses Again
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 the judgment: 3. The remaining portions of SCO's claims for Breach of Contract (Count II), Copyright Infringement(Count IV), and Unfair Competition (Count V) are voluntarily dismissed with prejudice, without the possibility of renewal following appeal. So, all the tricky language SCO suggested to the judge was for naught. Whew.
SCO Bankruptcy: SCO Withdraws Motion Re Confidentiality
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.
SCO and Novell Settle Constructive Trust/Payment Matter "In Principal"
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?
All Psystar's Counterclaims Against Apple Dismissed! Told 'Ya - Updated: The Order as Text
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 Files an Amended Schedule F
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.
Answering Gene Quinn, Patent Attorney - Updated
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 and explaining how the computer or device needs to process information. You do not explain how to process information with mathematical equations.
If you would read his article in full and then answer him here, in members-only space, I'll collect the best comments and try to tie it all together, if it works out well. It's an opportunity to reach not only Quinn but all the other patent attorneys who do read what he writes.
Game on?
Update 2: I'm reading your comments, and I don't think I can improve on them. So I'll let you all speak directly, by making this article public now.
Bills in the SCO Bankruptcy Show Activity in the Swiss Arbitration
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.
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