Novell plans to petition Supreme Court in SCO case

Novell is seeking a 90-day stay from a federal appeals court so it can petition the U.S. Supreme Court to review a decision in its ongoing case against SCO that reversed a ruling affirming Novell’s ownership of Unix copyrights.

Novell Tuesday asked the 10th Circuit Court of Appeal's to stay until Jan. 18, 2010 the court’s 54-page decision in August that included a reversal of a 2007 summary judgment that found Novell was the owner of Unix and UnixWare copyrights. That decision was made by Judge Dale Kimball of the U.S. District Court for the District of Utah.

Novell is asking for the three-month period so it can file a petition for a writ of certiorari in the Supreme Court. The writ is a request to the Supreme Court to review the decision of the lower court. According to the Web site Groklaw, which has been closely following the case, Novell can pursue a Supreme Court review whether the 90-day stay is granted or not.

Without the stay, however, Novell could run into a logistical nightmare with its foot in two court cases that are running simultaneously and examining the same issues.

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Appeals court rules say that Novell in order to get the 90-day stay must show "the certiorari petition would present a substantial question and there is good cause for a stay."
Novell stated in its filing to the appeals court that there is a "significant likelihood that the Supreme Court will grant certiorari. [The appeals court’s] decision constitutes a departure from decisions of other federal courts of appeals that have confronted the important question of copyright law at issue in this case."

As part of Tuesday’s filing by Novell, the company reported that it had contacted SCO’s lawyers, who said they object to the stay.

When the 10th Circuit Court of Appeal’s decision was handed down in August it stunned Novell and followers of the five-year old case with SCO. At the time, Novell said it would carefully study the court's decision and that it would not back down from its belief that it owned Unix and Unixware copyrights.

"Novell intends to vigorously defend the case and the interests of its Linux customers and the greater open source community. We remain confident in the ultimate outcome of the dispute," Novell said in a statement after the appeals court ruling

SCO also said it was looking forward to having another day in court. "Importantly, the court remanded the case for trial, and we look forward to the opportunity to present the case to a jury," SCO said in a statement in August.

In September, Novell filed a petition for a rehearing on the appeals court’s August ruling. SCO was ordered to file a response, which it did on Oct. 1. On Oct. 20, the appeals court denied Novell’s request for a rehearing, which set up Novell’s attempt to move to the Supreme Court.

Last week brought another twist when SCO informed the Securities and Exchange Commission that it had terminated CEO and president Darl McBride, who had held the position since June 2002. The decision came after an operations and cost analysis by Edward Cahn, SCO's Chapter 11 Trustee, as part of a restructuring plan.