Maureen O'Gara

Intellectual Property on Ulitzer

SCO may yet get to drag Novell kicking, screaming and clutching at the doorpost in front of a jury to decide who really owns Unix.

In the first and only head-snapping legal decision in all the years SCO has been in court, the 10^th Circuit Court of Appeals in Denver denied the bid Novell made Tuesday for a 90-day stay in going to trial back in Utah so it can appeal to the Supreme Court.

The court moved so quick the ink on Novell's motion wasn't even dry yet. The court slapped it down in less than 24 hours.

Apparently the guys in black think there's been way too much foot-dragging going on here.

Novell claimed in its motion that it's really, really important that all the circuits in the land agree on how precise the language in a contract must be to transfer copyrights and that the 10^th Circuit is out of step with 5^th and 9^th Circuits and Novell's reading of the Copyright Act.

Novell made the same argument when it asked the 10^th Circuit to rehear and rehear en banc its decision to overturn the Utah summary judgment awarding ownership of Unix to Novell.

To get a rehearing the issue has to be really, really important - just the way it has to be to go the Supremes - and the 10^th Circuit didn't think so. That's why it turned Novell down last week. So its decision Wednesday was logically consistent.

It was unclear from Novell's motion for a stay whether it wanted to use the three months to file for certiorari with the Supreme Court and see if it got it or just burn the time filing for certiorari because what it said was "A stay will provide Novell with time to prepare and file a petition for a writ of certiorari in the Supreme Court of the United States, which would be due on January 18, 2010" and it painted a picture of many amicus briefs being filed in its support.

Of course getting cert, as it is called, is like the modern day equivalent of passing a camel through the eye of a needle so maybe what Novell was really trying to do was buy time is achieve a penny-on-the-dollar settlement with an increasing financially exhausted SCO and its emotionally detached trustee now that SCO's ramrod, CEO Darl McBride, has been fired.

SCO objected to the stay so presumably it's headed on down to the courthouse in Salt Lake City to get on the docket.

The 10^th Circuit sent the case to a jury to decide what, if any, copyrights transferred to SCO from Novell because it was sure, based on the evidence presented, that something had happened despite a "linguistic ambiguity."

Novell can still try to get heard by the Supremes because, as it said in its motion, "an adverse ruling for SCO in this case will ultimately affect how two other federal district court actions concerning the same copyrights" - meaning SCO v Novell and SCO v IBM - "will proceed."