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The information on Groklaw is not intended to constitute legal advice. PJ is a paralegal, not a lawyer. Even when lawyers write or contribute to articles, it is still not legal advice, because the lawyers authoring the articles are not your lawyers.

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SCO v. Novell Trial Transcripts, as text -- Day 3, Thompson and Chatlos - as text
Saturday, July 31 2010 @ 06:04 PM EDT

This is the transcript of day three of the SCO v. Novell trial, Wednesday, March 10, as text. The trial began that Monday, March 8, 2010 with jury selection, and it would run for 15 days, Monday through Friday, for three weeks, with the Hon. Ted Stewart presiding. So this is still early, and SCO, who put its first witness, Robert Frankenberg, on the stand the day before, presents two more today. Today's witnesses for SCO will be R. Duff Thompson and Ed Chatlos. Here is Groklaw's eyewitness report from the trial for that day.

The day's transcript as PDF is in three parts: Part 1, Part 2, and Part 3. If you wish to jump to a different day of the trial, you can click on the date that interests you in the calendar, below, and it will take you to a transcript as text, but with the line numbers that appear in the PDFs:

March 2010
M Tu W Th F
08 09 10 11 12
15 16 17 18 19
22 23 24 25 26


read more (36121 words) 12 comments  View Printable Version
Most Recent Post: 07/31 09:43PM by JamesK

USPTO Asks for Comments on New Interim Guidance on Bilski
Thursday, July 29 2010 @ 03:33 PM EDT

The PTO has just issued new guidance for their examiners on Bilski, Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos [PDF] -- on how to follow what they think Bilski held as to what is and isn't patentable subject matter under 35 U.S.C. § 101.

"A claim to an abstract idea is not a patent-eligible process," Bilski holds, they point out, but exactly where is the line? How do you know an abstract idea when you see it? So the USPTO is asking for public comment on what they came up with for their understanding. They want to hear from the public by September 27, and they provide some specific questions and a list of factors examiners are to consider when evaluating an application.

You know pro-patent companies' lawyers in droves will be telling them that their clients should be able to patent God's method and process for creating the heavens and the earth, so you may wish to comment yourself and let them know politely where you think the line should be drawn on the abstract idea exception to subject matter eligibility as set forth in Bilski, if this is a topic you care about. Otherwise, I can see it now, their report: We got 3,201 comments saying X and only 3 saying Y, so X carries the day.


read more (5020 words) 365 comments  View Printable Version
Most Recent Post: 07/31 09:23PM by Anonymous

What's the Latest in the Psystar Appeal?
Wednesday, July 28 2010 @ 02:16 AM EDT

Let's catch up quickly in the Psystar/Apple situation, so we don't miss any of the action. When I read the new DMCA exemptions EFF won, I immediately started to think about Psystar, so I wanted to see what's new. Maybe you did too. So here's the latest I could find. The appeal is going forward. Presumably the next step in the appeal will be oral argument, although I can't swear to it, since Psystar filed its brief under seal with the Ninth Circuit Court of Appeals back in May, so we can't read it, and that's when they would have made the request or not. I can't believe the entire document needed to be sealed, but that is what happened. Perhaps they'd prefer we not get a chance to analyze it? Apple has now filed its answering brief [PDF], along with a request [PDF] that the court take judicial notice of the Florida litigation, and Psystar has just filed its reply brief [PDF], and these documents are not sealed, so we finally get to find out what it's all about.

What Psystar wants is nothing less than to overturn copyright law as we know it and create a new doctrine of per se copyright misuse any time a copyright owner restricts use of its software to particular hardware.

Wait. Isn't that kind of what TurboHercules is whining about too? Here's what TurboHercules told us it wants: "We simply want IBM to agree to allow legitimate paying customers of its z/OS mainframe operating system to deploy that software on the hardware platforms of their choice – including, should they so choose, on low-cost servers using Intel or AMD microprocessors and Hercules." Psystar and TurboHercules are going after different software, but they want exactly the same thing, to force the software creator to let them use it on hardware the owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own software. Let Apple and IBM pay for all that, and then they swoop in and make sure the creators don't benefit from their labor, so that Psystar and TurboHercules can.

You know what I find so striking? This is just one of four cases trying to grab some measure of control or use of other people's software against the owners' will, starting with the SCO v. IBM case.


read more (6591 words) 722 comments  View Printable Version
Most Recent Post: 07/31 08:57PM by gnasher729

Novell Responds to SCO's Attempt to Avoid Paying Costs Now
Monday, July 26 2010 @ 11:00 PM EDT

In the latest news from SCO's slow boat to absolutely nowhere, Novell has filed its opposition to SCO's motion to stay taxation of costs. SCO filed this exact motion [PDF] in 2008, after it lost the first trial, Novell points out, and Novell opposed that motion too, and the motion was denied [PDF] by this very same court, and here they are with the same type of motion and even using the same stupid case that didn't work for them the last time.

Is SCO trying to lose this motion? Or just half-hearted? If it knows the court will not grant the motion, why file it? No. Really. Why? To keep things going as long as possible? They think Judge Ted Stewart will be more favorable to them than Judge Dale Kimball? Nothing else has changed.

When you are the paralegal, all you do is take the old document, change the dates to upgrade it, and hand it to your boss for him to add his touches, if any. I puzzle over why SCO is even bothering. But I'm thinking about that more and more. Why is SCO continuing when the outcome is so obvious?


read more (1367 words) 259 comments  View Printable Version
Most Recent Post: 07/31 11:03AM by WhiteFang

Librarian of Congress Still Clueless About Linux; Groks Jailbreaking - Updated
Monday, July 26 2010 @ 01:35 PM EDT

There are new anticircumvention rules from the US Copyright Office. Several are very good changes, such as allowing you to bypass a technological protection measure to use snips from a movie or video if your purpose is educational or for comment or criticism, and there's more flexibility for phone apps if interoperability is the goal:
“When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses,” the Copyright Office stated.

“It’s gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability,” commented Electronic Frontier Foundation senior staff attorney, Corynne McSherry.

Keep in mind that copyright infringement is separate from DMCA analysis, so you still have to be careful about staying within the fair use boundaries when making a documentary. But at least now you can legally access. And while you can jailbreak your iPhone with respect to the DMCA, there's remains the issue of breaking the warranty. Also, while it's not criminal, there is still a EULA to consider.

But Linux got bonked on the head again. They essentially ruled that if you want to access DVDs or streaming videos, like with Netflix's "Watch Instantly" service, you have to buy a PC or an Apple computer or a DVD player. I wonder why they don't see that this situation is identical to the jailbreaking a smartphone, or should be? What's the difference? Linux users want to view movies too, and all they want is interoperability so they can. I wonder how Hollywood would like it if the government told them that to make their movies they couldn't use Linux but instead had to use a Windows PC or an Apple computer? Hollywood uses Linux to make their movies, but they oppose letting us view their products on Linux? Why? If the government is going to regulate operating systems and compel citizens to buy certain vendors' products as opposed to the ones we want to use, I think it should at least be consistent. Actually, I don't think any government should compel use of any private company's products, and I wish that argument had been presented. Maybe next time.

I'll show you the relevant language in the document Determination of the Librarian of Congress and Text of the Regulation [PDF].


read more (2446 words) 159 comments  View Printable Version
Most Recent Post: 07/30 09:03PM by Anonymous

SCO Files Docketing Statement and We Find Out What Its Appeal Will Be About
Saturday, July 24 2010 @ 08:04 AM EDT

The SCO Group has filed their docketing statement [PDF] in their appeal from the jury's decision and Judge Ted Stewart's rulings and findings in SCO v. Novell. And thus we find out what the appeal is going to be about. The PDF is a honking 323 pages, mostly exhibits.

What does SCO want? What it has always wanted, the UNIX copyrights. It wants the appeals court to rule that Judge Stewart erred in ruling that Novell had the right to waive. After SCO lost the jury trial, it filed some motions, essentially asking Judge Stewart to overrule the jury and grant SCO judgment as a matter of law that the copyrights did transfer in 1995, despite the jury's ruling otherwise, or alternatively SCO wanted a new trial. The judge didn't do either, and SCO now wants the appeals court to rule that was error on his part. Finally, if all that fails, SCO wants the appeals court to rule that SCO is entitled to specific performance, compelling Novell to hand over the copyrights now.

In short, they want to win. They thought the jury "just got it wrong", they asked Stewart to fix that, and he didn't, so now SCO is asking the appeals court to help them win something, one way or another. Why? It wants to sue Linux folks, I presume, and it can't without the copyrights. And it wants to sue IBM, too, and unless it can get the appeals court to rule that Novell has no right to waive and get the copyrights, SCO can't sue IBM. I guess it would be more accurate to say SCO wants to not lose. It's in quite a pickle as things stand. Think of IBM's counterclaims for just a minute, and you'll understand why SCO probably feels it has nothing to lose by trying.


read more (4412 words) 494 comments  View Printable Version
Most Recent Post: 07/29 09:29AM by Anonymous

SCO v. Novell Trial Transcripts - with line numbers - complete
Friday, July 23 2010 @ 09:08 PM EDT

We have all the transcripts from the SCO v. Novell trial now as text, a version for each day with line numbers, so as to match the PDFs. I'll be writing about them one by one, pointing out interesting things, with versions without the line numbers, for readability as well. I've done that for day 1 and day 2, and I'll keep working through them all, all 15 days. So you can pick and choose which way you prefer to read the transcripts. I don't want you to have to wait, though, so here's a calendar you can use right now, to find whatever day of the trial that interests you the most, the text versions with line numbers:

March 2010
M Tu W Th F
08 09 10 11 12
15 16 17 18 19
22 23 24 25 26

You'll find a copy of this calendar on each page, so you can navigate any way you like. Enjoy!


34 comments  View Printable Version
Most Recent Post: 07/31 04:17PM by perpetualLurker

SCO v Novell Trial Transcripts - Day 2, Part 1 as text -Opening Arguments, 1st Witness, Frankenberg - Updated
Friday, July 23 2010 @ 07:19 PM EDT

I have the corrected transcript for day 2 [PDF] of the SCO v. Novell trial as text. This was the very first actual day of trial, the jury having been chosen and sworn in the day before. So today is Tuesday, March 9, 2010, and we have opening arguments from each of the parties and then SCO begins to present its case. You'll find the rest of the day here [PDF; text] and then here [PDF; text].

For SCO's side, Stuart Singer begins the opening argument, and then Brent Hatch finishes up the last part of it. For Novell, it's Sterling Brennan all the way. Then SCO puts on its first witness on the stand, Robert Frankenberg, formerly CEO at Novell, who is examined by SCO lawyer Stuart Singer of Boies Schiller, then on cross for Novell by Sterling Brennan, then Singer on redirect and Brennan on recross. Here's Groklaw's coverage of that day.


read more (42836 words) 50 comments  View Printable Version
Most Recent Post: 07/26 06:47PM by UncleJosh

SCO v. Novell Trial Transcripts, as text -- Day 1, Jury Selection and Instructions - Updated 3Xs
Thursday, July 22 2010 @ 03:55 AM EDT

Isn't it lovely to have the daily transcripts from the SCO v. Novell trial? We're working hard to prepare them all for you as text. This is the first one, from the first day of the trial that began on Monday, March 8, 2010. We'll work sequentially, day by day. Here's the PDF, so you can check any details that intrigue you. I thought I'd share with you my impressions of opening day. I want to explain a few things.

This is technically not the trial itself, but jury selection and instructions to the jury from the judge, the Hon. Ted Stewart. The actual trial didn't start until the following day.

If SCO was hoping for a jury that was tech-challenged, they certainly did not get a jury pool like that. And the number of potential jurors who knew about Linux, had friends or relatives that used it, or who used it themselves was strikingly high. Either Utah loves freedom or someone has been seriously underestimating how many people in the U.S. use Linux. Maybe a little of both. Judge Stewart told SCO that he wasn't going to remove people from the jury just because they knew what Linux was or used it, but a couple of them got weeded out for other reasons.

The day begins with some initial judge/lawyer brainstorming, and then the jury pool is brought in, all 52 of them, and the process begins unfolding. The clerk was expecting 55, but there are always a few that don't show up due to illness or unforeseen occurrences. Judge Stewart tells them how grateful everyone is that they are willing to serve. He tells them that juries are necessary for the legal system in the US to work:

If we did not have individuals such as you who are willing to take your time to be here to allow us to select a jury, and those of you 13 in number who will ultimately be asked to serve as jurors in this case, if they were not willing to serve, then our entire judicial system would collapse. And if we did not have an operating judicial system in this country, we would not have a country.
That's true, by the way, not hyperbole. Juries do play a vital role. And the judge tells them that they'll get out usually by about 1:30 in the afternoon, so they can serve without it being unduly a hardship. So then each one tells a little bit about him or herself, answering a list of questions from the court. And the judge and the lawyers on both sides are listening and observing carefully. At least one jury consultant is present. They have to get from 52 down to 13.

read more (52748 words) 288 comments  View Printable Version
Most Recent Post: 07/28 10:35PM by The Mad Hatter

SCO Bankruptcy: the Very Merry MORs of May
Wednesday, July 21 2010 @ 06:10 PM EDT

SCO filed its monthly operating reports for May. They had the Yarro loan, so these were still relatively flush days. If you are like me, you are deep into the transcripts from the trial, or you are analyzing Mozilla's draft MPL license, or both, so it's hard to focus on this. But the MORs are filed, so those of you who are more accounting-oriented will want to take a look.

As I look quickly through them, it looks like at the end of May, SCO could have paid back the Yarro loan in full. I realize they had just got it in March, and that that wasn't the goal in May. And this is July, not May. They took the loan to be able to keep the litigation going. And going. And going.

Guess how much they've spent in professional fees since this bankruptcy started? $5,097,729 plus $321,753 in expenses, not counting May or bills outstanding. So, the Chapter 11 bankruptcy has pretty much wiped out what they had when they started it, all to lawyers and other professionals helping them. Helping them do what? No wonder they keep postponing meeting with the bankruptcy judge lately. And no wonder they can't pay any creditors. Anyone notice this Chapter 11 thingie doesn't seem to be pointing toward success?


read more (610 words) 87 comments  View Printable Version
Most Recent Post: 07/23 08:16PM by Anonymous

Latest News Picks
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    Earlier this week Apple, Inc. had three patent application publish on what most would consider strange, overbroad and/or dubious inventions. I came across these patent applications thanks to CNET (via Unwired View), and they relate to a method of using a smartphone or other portable electronic device to access travel services (US Patent Application 20100190510), a method of using a smartphone or other portable electronic device to access hotel services ( US Patent Application 20100191551) and a method for providing enhanced access to high fashion using a smartphone or other portable electronic device (US Patent Application 20100191578).

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    [PJ: Dude, when Gene Quinn thinks you've gone too far in your patent application, you probably have. But if Unwired View hadn't noticed this and made it an object of ridicule, do you really think the USPTO would have rejected it? They may not even now. That's exactly the problem. But look at this article about Apple settling with a patent troll, and you may get an idea why everyone tries to get all the stupid patents they can, because otherwise the USPTO will issue them to somebody else, as it did in this instance. And if they don't issue them, then the rejection gets appealed to the US Court of Appeals for the Federal Circuit, and they almost always let you have a patent. I would put an X right there as to where the real problem has been.] - Gene Quinn, IP Watchdog

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