SCO's argument asking for more time is interesting, because we learn that Novell asked to -- and SCO agreed they could -- attach 60 more documents to the Appendix. And Stuart Singer, who takes credit in his bio on Boies Schiller's website for representing SCO as lead counsel at this same court of appeals the last time SCO appealed, is busy with another case, working on a preliminary injunction proceeding. Well. Almost. It doesn't say the "SCO" word:

Won appellate decision from Tenth Circuit (August 2009) regarding ownership of copyrights and contract rights for the UNIX operating system.

Preliminary injunctions are very, very hard to win, because one of the things you have to demonstrate early in the case, meaning before you've done discovery, is that you probably will win in the end, so it's a legitimate excuse this time. But what might those extra 60 documents be, I wonder?

I think it ought to inspire you, reading Allen's complaint [PDF], that it might get you to the tipping point, or at least help you to understand why most engineers do hate software patents, because they are a drain on the economy and a hindrance to innovation. So we did Allen's complaint as text, sort of as Exhibit A, shall we say, illustrating the point.

But if you can figure out precisely what this litigation is about from this complaint, what the defendants are alleged to have done wrong, you are doing better than I am. It's unbelievably vague.

So are the patents. What is it that these patents do? What's the process or method? I mean, "Alerting Users to Items of Current Interest", a patent on a system for recommending things that might interest you based on your interest in something else? How's this for prior art? When I go to the local hamburger joint, they ask me if I want fries with my burger.

08/26/2010 - 890 OBJECTIONS to 879 Bill of Costs filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A)(Normand, Edward) (Entered: 08/26/2010)

I will translate for you. What that means is that SCO would like to pay less. If Novell had lost, and they had been ordered to pay SCO's bill of costs, SCO would have fervently argued the opposite. Last time, SCO was able to get a bit knocked off the bill, so they may again. But they'll probably still have to pay something. But will they? In real life, I mean. Not on paper.

Focus, please, also on what he's learned about patents, how to invalidate them in various ways, especially the part about proving non-infringement and why that is easier than proving prior art, and then the part about finding a workaround and then publicizing it. He shows how to read a patent filing document. You guys have been effective already in the past in finding prior art, but he is raising the bar with more techniques.

I see some of you are already posting what you believe to be prior art on the Oracle America patents being used against Google, and we might as well do it as well as we can once we are sure Oracle is going to go forward full steam ahead, but there are other arrows to add to our quiver. I'm waiting to see if there is a settlement of some kind, but when I am sure it's going forward, I'll tell you. Patent infringement cases go on for years, usually, so there's time to hope for progress. Larry Ellison is giving a talk at JavaOne September 20 in San Francisco on "Oracle's vision and strategy" for Java. As James Gosling points out, there is still a way to fulfill the 2007 Java pledge by setting up an independent Java foundation, and there are other steps Oracle can still take. In spite of all that is happening, one thing I am clear on. Oracle is not SCO. Oracle is Oracle. Sui generis.

Update: Google announced it will not be attending JavaOne.

But as Eben Moglen pointed out recently at LinuxCon, the patent crisis in general isn't going away. So it's best that we figure out the very best ways to deal with it. I'm told his talk will be available as video soon, and when it's up, it will be here on the Linux Foundation website.

The case, Apple Inc. v. High Tech Computer Corp. et al, is now before Judge Gregory M. Sleet, docket number: 1:10-cv-00544-GMS, in the US District Court in Delaware. The et al means there are others as defendants, and the full caption is Apple Inc. and NeXt Software, Inc. v. High Tech Computer Corp., a/k/a HTC Corp., HTC (B.V.I.) Corp., HTC America, Inc., and Exedea, Inc. The defendants are asking to move the case from Delaware, where Apple filed, to Northern California. I don't know about you, but I'd rather be in any state *but* Delaware, after watching SCO's bankruptcy there.

HTC denies infringing the patents, of course, but they also say as a first affirmative defense that four of the patents are invalid for "failure to comply with one or more of the conditions for patentability set forth in Title 35 of the United States Code, including, but not limited to, utility, novelty, non-obviousness, enablement, written description and definiteness in accordance with 35 U.S.C. §§ 101, 102, 103, 112, and/or 116, or are invalid pursuant to the judicial doctrine barring double-patenting". HTC also claims prior art, marking, laches and marking defenses, and it says it has license agreements with third party suppliers to do what they do the things Apple is suing them over. It asks the court to declare the patents invalid. Here's a recent case highlighted on EFF's site where some of those types of defenses worked perfectly.

You know how in the movies when two guys get into a fight on the street, another guy will run into a bar and yell, Fight! and everyone runs outside to watch? I feel like that guy reading this filing, because I see HTC intends to fight back.

Now that the old caldera.com pages are on Internet Archive again, thanks to SCO selling off the domain name, many interesting things are surfacing, and we find out why SCO tried to hide them for so long. They should have waited a little bit longer.

But there's more. Microsoft is fighting to keep certain documents it alleges the judge in the district court didn't base his ruling on from being considered by the court of appeals. Here's the Microsoft Motion to Strike [PDF]. The full title is Motion to Strike Certain Exhibits from the Joint Appendix and Any References to Such Documents in Novell's Brief. Microsoft is relying in part on some cases Novell already pointed out to Microsoft don't apply, as I'll show you. [Update: One of the exhibits is actually marked as filed under seal. So we've now split them apart.] [Update 2: We checked, and the filing is now unsealed and is part of the public record, so I've added it to the list.]

But the case is interesting also on a tech level, because, in my view, the judge doesn't understand fully the difference between an operating system and an application. He ruled that WordPerfect is, under the relevant APA, an associated DOS operating system product and hence covered by the DR DOS litigation Caldera brought successfully against Microsoft. Because he lumped them together in a jujitsu way, accepting Microsoft's position, he found for Microsoft on summary judgment.

That reminds me, because Groklaw is now in the Library of Congress's digital collection, accessible if you visit the library, I have been taking time to try to fix older broken links, and I just finished updating the links in the US v. Microsoft litigation section, part of our permanent page on Microsoft Litigation, to include the famous video moment, the doctored video. There are links now to Ed Felten's testimony [PDF] that you could indeed uninstall IE in Windows 98, the trial exhibits, the depositions used, and direct testimony transcripts. including the transcript of the cross examination of Microsoft's Jim Allchin by David Boies, the famous Perry Mason moment. The transcript is, ironically enough, in Microsoft's .doc format, but if you don't have Microsoft Windows and don't wish to buy it, you can download OpenOffice.org for free, as in beer and as in freedom, thanks in part to all the antitrust rulings in the US and the EU and then thanks to all the volunteers who worked so hard to give us a viable alternative, and you'll be able to read it just fine.

If you notice any broken links, particularly on our permanent pages, please let me know. Being included in the Library of Congress is a great honor that I feel deeply, and when I disappear on the weekends somewhat these days, it's because I'm feeling that responsibility, knowing our work is available to researchers there who might not otherwise know about Groklaw, and I want to be sure our historical collections are as accurate as human limitations and the constantly changing Internet allow, so they are optimally useful. Also, I continue to work on completing our collection of exhibits in the Comes v. Microsoft antitrust case, some of which turned out to be relevant in the Novell v. Microsoft case, so if you'd like to help finish up, just go here, find any numbered PDF that isn't described or available in full as text, and do either a description or a transcript following the general style you see others have used, and then post what you find in plain text, ideally with HTML done and showing, or email me by clicking on the envelope icon. Thank you.

But let's take a look at the latest dispute in the Novell v. Microsoft appeal.