The way U.S. District Judge Dale Kimball rules on that question involving ultimate ownership of the Unix operating system could not only torpedo SCO's slander of title suit against Novell Inc., but fatally undermine its bigger, $5 billion claim against IBM.
After hearing competing motions Tuesday, Kimball must decide whether SCO bought all rights to Unix in 1995 - or whether the seller, Novell, retained ownership while granting only limited licensing and development rights.
'All' means all. It can only mean all, Novell attorney Michael Jacobs argued, referring to the sale's contractual wording in reference to his company's rights to Unix. "No one in 1995 contemplated what SCO has wrought" in its interpretation of the deal.
SCO attorney Stuart Singer insisted "all" was, well, not all. The contract signed 12 years ago limited Novell's Unix interests only to licenses in existence at the time - not "incidental" product development by SCO, as in its later licensing of Unix to IBM and Sun Microsystems.
Jacobs countered that the deal, and others, exceeded SCO's contract with Novell. "[SCO] wasn't supposed to enter into new [Unix] licenses," he said. "Without authorization from Novell, SCO went out and got more [Unix] money, lots of it."
The two also wrangled over the precise wording of the Unix contract and amendments. Jacobs painted SCO merely as a Novell Unix licensing agent in the deal, while Singer insisted the deal transferred all rights to the program and its code.
"It is our property they are holding in trust," Jacobs claimed, contending that Novell retained ''all royalties, fees and other amounts due'' from SCO's Unix dealings.
Singer, citing numerous declarations from witnesses present at the 1995 deal's drafting, said it was clearly understood that SCO acquired all rights to Unix - even if the contract's language did not definitively say so.