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SCO Ordered to Reply to Novell's Petition for Rehearing
Thursday, September 17 2009 @ 03:59 PM EDT

The Tenth Circuit Court of Appeals is taking Novell's Petition for Rehearing and Rehearing en Banc seriously. They have ordered SCO to file a response within 14 days of the order. This is a significant order, in my view, and a major win for Novell. Here is the order:
09/17/2009 - Open Document - [9693254] Order filed by Clerk of the Court response to petition for rehearing en banc due. Response due on 10/01/2009 for SCO Group. Served on 09/17/2009.

"This matter is before the court on appellee’s Petition for Rehearing and Rehearing En Banc. The appellant shall file a response within 14 days of the date of this order." So 14 days from September 17. I've seen a number of comments on how hard it is statistically to get a rehearing, but what you are overlooking is the following explanation, from California Appeals Statistics:
Before you decide whether to start or defend an appeal, you may want to consider the overall statistics. That said, the chances of any specific appeal succeeding depend on the merits of that case. There are no quotas that the courts apply. When one considers reversal rates, one has to keep in mind that the overall statistics include a fair number of appeals that are hopeless and that never had any realistic chance of success.
So Novell's chances were never statistically determined. It is on the merits that such matters are decided, and at a minimum, it's now clear that the appeals court believes Novell's points require SCO to answer.


SCO Ordered to Reply to Novell's Petition for Rehearing | 218 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO Ordered to Reply to Novell's Petition for Rehearing
Authored by: Peter H. Salus on Thursday, September 17 2009 @ 04:07 PM EDT

That's October 1. A Thursday. And no tolerance here for a petition to file
overlength, I'd bet.

Peter H. Salus

[ Reply to This | # ]

Corrections here.
Authored by: Erwan on Thursday, September 17 2009 @ 04:11 PM EDT
If any.


[ Reply to This | # ]

OT Here
Authored by: SpaceLifeForm on Thursday, September 17 2009 @ 04:18 PM EDT


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

News Picks commentary here
Authored by: SpaceLifeForm on Thursday, September 17 2009 @ 04:21 PM EDT
Please note in the title which news pick
you are referencing.


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

14 days for the trustee to show his cards
Authored by: Anonymous on Thursday, September 17 2009 @ 04:33 PM EDT
I assume he will defend the position to protect the estate from an adverse

But as an ex Judge he must have an opinion on the merit of the appeal, based on
law rather than passion?

So how will he instruct the laywers ... I can't wait to see!

[ Reply to This | # ]

Now it is up to the Trustee, isn't it?
Authored by: rsmith on Thursday, September 17 2009 @ 04:44 PM EDT

I'm curious as to how how he will handle this.

My first thought when the trustee was appointed was that he would order the law firms to stop making billable hours. :-) To prevent further bleeding of the already slim recources of the estate.

On the other hand there is potential value to the appeal. At least if he listens to and believes the former management...

So he'll have to weigh the costs of the appeal against possible benefits. Now we all know what Groklaw would advise, but we've been following this farce for years. The trustee now has a very short time to get up to speed.

A question for PJ: What will we see of the trustee's work? Will he have to file regular reports to the bankruptcy judge?

Intellectual Property is an oxymoron.

[ Reply to This | # ]

Why I'll never be a lawyer
Authored by: Anonymous on Thursday, September 17 2009 @ 04:44 PM EDT
I can't think of a thing to say that argues that the APA as amended actually
transferred copyrights. I can argue (although I don't agree) that it was
intended to do so at some unspecified point in the future. I can argue that
there is a contract that should compel Novell to transfer copyrights. However,
what can they say that directly answers the appeals brief?

That's not to say that they can't argue something entirely different from what
the appeal is asking, but I do believe the Judges would easily see through that.

[ Reply to This | # ]

This is a Big Step....
Authored by: webster on Thursday, September 17 2009 @ 05:11 PM EDT

Novell goes from presumptive loser to undecided.

The Tenth Circuit has ordered SCO to respond in 14 days, October 1. The Rule says the following:

(3) Answer.

Unless the court requests, no answer to a petition for panel rehearing is permitted. But ordinarily rehearing will not be granted in the absence of such a request.

FRAP 40. The Circuit is thinking about a rehearing. One of the Judges at least has called for a vote. To be fair or make it appear fair, they have asked for an Answer from SCO.

It is hard to tell from the rules about the content and length of the Answer and any reply. Only an experienced appellate attorney would know. One would be wise to follow the requirements and limits of the Petition itself. Since they are not specified, the Circuit will be feeling the rub of SCO's free hand soon.

The value of the decision appealed from has just gone down. The Trustee should authorize this response since it is already paid for under the retainer agreement.

The Circuit can proceed in any fashion they want at this point. That will depend on the vote en banc:

  • They can grant the petition for rehearing, with more briefs and arguments.
  • They can summarily affirm or reverse,
  • or just write a new decision if they don't think they need to hear more.
  • Oh, and they can just deny the petition.


[ Reply to This | # ]

Kind of disappointed
Authored by: Anonymous on Thursday, September 17 2009 @ 05:14 PM EDT
You know, it would have been refreshing to see SCO try their usual stunts with
the full appeals court (not answering on point, overlength, not specific, etc.)
and see them get soundly smacked down for it. I would have enjoyed it.

It's good that the trustee is in there to start wrapping up this farce, but...
it would have been fun. (And still may be, if the trustee does not yet order a
change in BSF's behavior.)


[ Reply to This | # ]

Authored by: Anonymous on Thursday, September 17 2009 @ 05:17 PM EDT
SCO's reply will be full of fluff and hot air about the wisdom of the three
judges, and about due deference to their opinion, and will be totally
unresponsive to Novell's point about there being no writing that actually
transfers the copyrights.


[ Reply to This | # ]

I think Novell's point that a 9th Circuit precedent was being set should not be ignored
Authored by: PTrenholme on Thursday, September 17 2009 @ 09:45 PM EDT

I hope that a rehearing will be granted so copyright holders in the 9th Circuit will not face a precedent that a statement of an intent to transfer a copyright is sufficient to raise a question of fact about who currently owns the copyright.

Especially with a fact finding that no written transfer document exists.

IANAL, just a retired statistician

[ Reply to This | # ]

I agree with rsteinmetz
Authored by: Anonymous on Friday, September 18 2009 @ 02:45 AM EDT
Were I the trustee, I would let BSF respond. They seem to be attached to this
steaming pile. Let them polish it into its most presentable luster.

Why muck out the stable yourself when someone already offered to do a tidier job
of it for you?

[ Reply to This | # ]

SCO Ordered to Reply to Novell's Petition for Rehearing
Authored by: keds on Monday, September 21 2009 @ 03:10 AM EDT
Generally speaking, however, appeals are only successful about 20% of the time.
That's why appellants are required to post bonds and bondspeople almost always
require full cash collateral for said bonds.

[ Reply to This | # ]

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