SCO has asked [PDF] the Court for more time to respond to Novell's Opposition to SCO's Cross Motion for PSJ on Novell's Fourth Claim for Relief, which was filed under seal. It's a cross motion, because Novell has its own Motion for Partial Summary Judgment on its 4th Counterclaim for Relief [PDF) so both sides are asking for a ruling on that counterclaim to go their way. You'll remember SCO asked for and, despite Novell's opposition, eventually got more time to respond to that motion too. Delay, delay, delay. SCO's middle name.

To refresh your memory, this is the Novell counterclaim asking the Court for a declaration that Novell had and has the right to waive SCO's claims against IBM and Sequent, and that SCO be obligated to recognize Novell's waiver of SCO's purported claims against IBM and Sequent. Novell also seeks a declaration that SCO was obligated to seek Novell's "prior approval to enter into new SVRX licenses or amendments to SVRX licenses, including SCO's agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses", unless it could demonstrate that they qualified under two exceptions. Novell then has an interesting alternative request for relief, namely for a declaration "that SCO had no authority to enter into the Sun and Microsoft SVRX Licenses, as well as the Intellectual Property Licenses with Linux end users and UNIX vendors".

SCO filed their Cross Motion for PSJ on this issue on January 18th [PDF], on the asserted grounds that "the evidence of the parties’ intent under the APA and Amendments thereto is undisputed in SCO’s favor." Undisputed. ! ?

Assuming this request is granted, and SCO says Novell doesn't oppose, then SCO's Reply will be due on this coming Friday, March 16th.

For reference, Novell's Counterclaims are here [PDF] and Groklaw's chart showing the Novell Counterclaims and SCO's Reply is here.

FOURTH CLAIM FOR RELIEF
(Declaratory Relief: Rights and Duties under § 4.16(b) of the
Asset Purchase Agreement, § B of Amendment No. 2)

117. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.

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118. Under § 4.16(b) of the APA, Novell has the right, at its sole discretion, to direct SCO to waive any rights under any SVRX Licenses. In the event that SCO fails to take any such action at Novell's direction, § 4.16(b) gives Novell the right to take any action on SCO's own behalf. SCO refused to perform its corresponding duties under § 4.16(b) and substantially and materially breached § 4.16(b) by:

a. Purporting to cancel or terminate SVRX licenses, including the IBM and Sequent SVRX licenses, and then refusing to waive these purported rights as directed by Novell; and

b. Refusing to recognize actions taken by Novell on SCO's behalf pursuant to § 4.16(b), including Novell's waiver of SCO's purported claims against IBM and Sequent.

119. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that:

a. Under § 4.16(b) of the APA, Novell is entitled, at its sole discretion, to direct SCO to waive its purported claims against IBM, Sequent and other SVRX licensees; and

b. Under § 4.16(b) of the APA, Novell is entitled to waive on SCO's behalf SCO's purported claims against IBM, Sequent and other SVRX licensees, when SCO refuses to act as directed by Novell; and

c. SCO is obligated to recognize Novell's waiver of SCO's purported claims against IBM and Sequent.

120. Under § 4.16(b) of the APA, SCO is obligated to seek Novell's prior approval to enter into new SVRX Licenses or amendments of SVRX Licenses, subject to limited exception. SCO did not perform its corresponding duties under § 4.16(b) and substantially and materially breached § 4.16(b) by:

a. Purporting to enter into new SVRX licenses without Novell's prior approval, including agreements with Sun, Microsoft and other licensees of

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SCO's Intellectual Property Licenses, without demonstrating that either of two limited exceptions was applicable; and

b. Purporting to enter into amendments of SVRX Licenses without Novell's prior approval, including agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses, without demonstrating that a limited exception was applicable.

121. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that:

a. Under § 4.16(b) of the APA, SCO was obligated to seek Novell's prior approval to enter into new SVRX licenses or amendments to SVRX licenses, including SCO's agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses; and

b. Under § 4.16(b) of the APA, SCO is obligated to seek Novell's prior approval to enter into new SVRX licenses or amendments to SVRX licenses, unless SCO can demonstrate to Novell that any exceptions to the prohibitions against new licenses and amendments by SCO are applicable.

122. Under § B of Amendment No. 2 to the APA, SCO is obligated to consult Novell and obtain Novell's approval before concluding any potential buy-out transaction with an SVRX licensee. SCO did not perform its corresponding duties under § B of Amendment No. 2 and substantially and materially breached § 4.16(b) by entering into the 2003 Agreement with Sun without consulting Novell or securing Novell's prior approval.

123. Novell pleads in the alternative for a declaration pursuant to 28 U.S.C. § 2201 that SCO had no authority to enter into the Sun and Microsoft SVRX Licenses, as well as the Intellectual Property Licenses with Linux end users and UNIX vendors.

*****************************

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff /Counterclaim-Defendant,

v.

NOVELL, INC.,
a Delaware corporation,
Defendant/Counterclaim-Plaintiff.

MOTION FOR EXTENSION OF TIME
TO REPLY TO NOVELL'S
OPPOSITION TO SCO'S CROSS
MOTION FOR PARTIAL SUMMARY
JUDGMENT ON NOVELL'S FOURTH
CLAIM FOR RELIEF

Case No. 2:04CV00139
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

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Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO"), through counsel, hereby moves the Court for an extension of time to reply to Novell's Opposition to SCO's Cross Motion for Partial Summary Judgment on Novell's Fourth Claim for Relief filed by Defendant/Counterclaim-Plaintiff Novell, Inc. ("Novell").

SCO respectfully requests that it be granted an extension of time, to and including March 16, 2007, within which to file a response to Novell's opposition. Counsel for SCO has conferred with counsel for Novell regarding the requested extension. Novell's counsel does not oppose SCO's request for an extension of the deadline to March 16, 2007.

DATED this 9th day of March, 2007.

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

Counsel for The SCO Group, Inc.

By __/s/ Edward Normand______________

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CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing was served on Defendant/Counterclaim-Plaintiff, Novell, Inc., on this 9th day of March, 2007, via CM/ECF upon the following:

Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]

Michael A. Jacobs
Matthew I. Kreeger
Kenneth W. Brakebill
MORRISON & FOERSTER
[address]

_______/s/ Edward Normand________

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