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What really happened | 119 comments | Create New Account
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Troubling, yes
Authored by: stegu on Monday, June 18 2012 @ 06:06 AM EDT
I agree that this is worrying, not just for
the personal well-being of Judge Motz, but
for the health of this important case.
The judge seems to pay attention, and makes
a clear statement that indicates he has got it,
but he doesn't take it in, so a couple of
days later it seems all gone. I can't see how this
could be anything else than a sign of contemplated
but ill-conceived malice or a sign of an onset of
senility, or worse.

[ Reply to This | Parent | # ]

Novell v. Microsoft Trial Transcripts - Day 8, Oct. 27, 2011 ~pj
Authored by: Anonymous on Monday, June 18 2012 @ 06:33 AM EDT
Reading this day's transcript, I have to agree with that assessment. Either he's forgetting by accident, which raises questions as to his competence, or he's forgetting on purpose which is even worse since it demonstrates bias.

I'm very pleased that the jury mostly managed to see through all that. But I am likewise very concerned about the JMOL motion, especially as it was argued without public notice.

[ Reply to This | Parent | # ]

Early signs of Alzheimers?
Authored by: hAckz0r on Monday, June 18 2012 @ 11:45 AM EDT
A poor short term memory, but then having command and the ability to remember things from many years ago, like the law and all the relationships between issues pertaining to such.

DRM - As a "solution", it solves the wrong problem; As a "technology" its only 'logically' infeasible.

[ Reply to This | Parent | # ]

What really happened
Authored by: Ian Al on Wednesday, June 20 2012 @ 03:52 AM EDT
Here's cpeterson's report about the Frankenburg complaint. I've quoted almost all of it because it completely reverses the view I derived from reading the transcript. Thank heaven for cpeterson's report because I believe it tells us what really happened; and it wasn't a senior moment. Not that I like what it really was!
Then, going second, responding to the Rule 50 motion, Jeff Johnson took the podium for Novell.

Mr. Johnson started out with an apology, stating that since this was a motion for summary judgment, Novell had prepared its response on matters of law. But, since Mr. Tulchin spent so much of his time arguing the evidence, he would try to address that as well.

His ire was up.

He started out his statement with an analogy about what anti-trust law is about: he said it's not about who wins or who loses, but about who can play. He likened it to a sports venue, with six gates onto the playing field -- five of which are owned by Microsoft. The question, he says, is whether Microsoft can also control the sixth gate.

He started with stating that Novell's intent was to compete. He then went on to show, from the transcripts and visuals, the evidence in the record showing Novell's actions in trying to put together a workable, and quality, product. His next point was that Novell didn't know that Microsoft would stop cooperating. They didn't know that Microsoft was going to turn away from the course they had stated when they "evangelized" the new APIs to Novell.

Judge Motz, who had been fairly chatty with Mr. Tulchin, here interrupted Mr. Johnson, asking where there was any evidence that Robert Frankenberg, Novell's CEO, had complained to Microsoft about being cut out from the APIs. Mr. Johnson responded with a showing that other Novell witness had, indeed, been in touch with Microsoft raising the issue, but that was waved off by the judge. No, he demanded, I don't mean some low-level developer. If you can't show me evidence that the CEO even cared to ask for a response from Microsoft, then... (shrug, 'nothing I can do' palms up).

Mr. Johnson insisted that this appeared to be a technical issue, and the technical people were the ones who were handling it. Judge Motz again interrupts, indicating that the absence of Frankenberg's response is fatal to Novell's case. [PJ: See what I mean about this judge?]

One of the other attorneys passed a note to Mr. Johnson, who then said that Mr. Frankenberg *did* contact Microsoft. "Show me", says Judge Motz. "If that evidence isn't in the record, this case is *over*." There was a short conference at Novell's table, then -- I believe it was Mr. Schmidtlien -- rose and stated that Frankenberg *did* get in touch with Microsoft but that the emails were not in the record, because they were written by Novell's counsel, addressed to Microsoft's counsel, and were specifically about anti-trust concerns; and, being privileged communications, Novell has never had reason to believe Judge Motz would want or allow them on the record. However, he continues, if the judge so wishes, Novell can produce them on Monday morning.

Judge Motz makes a "stop" gesture with both hands -- "No, no, if they exist, then that's OK. I'll want to see them, but I applaud your not attempting to put privileged material into the record." (I'm holding a little bet with myself - I think Novell will at the least enter a motion to put those emails on the record, simply because during the above Mr. Tulchin had stood up and stated "There are no such emails - they don't exist." Then he quickly sat back down. Might Novell decide to make him object to the entry of the "non-existent" emails into the record?)

Mr. Johnson then attempted to resume his presentation about Microsoft's evangelism, and how it made Christy Sports v. Deer Valley inapposite, when he was again interrupted by Judge Motz asking, "Do you have any case where a defendant is required to share its intellectual property with a competitor?"

Mr. Johnson paused for a moment, then confided: "If Microsoft had come to us in '93, telling about the new APIs, and how wonderful they were, and how they were going to change everything, and then said '... and nyah, nyah, you can't have them', well, that would have been cold and venal and cruel, but it wouldn't have been actionable. They would have been within their rights to do that. But they didn't do that. They advised us -- pleaded with us -- demanded that we use the new APIs. That makes it different."

Judge Motz still seemed inclined to argue that there was nothing actionable about Microsoft doing whatever they want with their own intellectual property. Mr. Johnson said Novell isn't claiming they can't, and isn't claiming rights to Microsoft's IP. On the big screen then appears the appellate court's "baseball bat" analogy, and the Judge subsided for the moment.

Continuing onward, again, Mr. Johnson tries to resume his presentation. He attempts to describe the link between the Hood Canal retreat documents and the October '94 Bill Gates email ordering the withdrawal of the APIs, when Judge Motz interrupts again. He wants to go back and talk about Frankenberg some more.

He asks to be shown some of Mr. Frankenberg's testimony, relating to QuattroPro. Frankenberg had been shown an email about the majority of the QuattroPro developers resigning. (This is, I believe, an email from 23 Dec 1995) He had agreed that had happened, but that it didn't matter, because as the email said, development of QuattroPro was "basically done".

"There's your proof right there," says Judge Motz. "Frankenberg says it was basically done, and that implies, *not* done." He went on to reprise Microsoft's argument about the non-existence of the software suite which could have been damaged by Microsoft actions.

No, says Johnson, that's not the case. The portion of QuattroPro which wasn't complete was the Shared Code portion, which depended on the Microsoft APIs. Everything else was done; the core engine was not being substantially changed from the prior version of the product. The delivery of WordPerfect never was dependent upon the delivery of QuattroPro; even the PerfectOffice suite product didn't necessarily depend on QP delivery because they had -- as some development team members had testified -- a backup plan to ship PerfectOffice with a coupon for QP whenever it did become ready.

Well, where is your evidence, Judge Motz wants to know, that WordPerfect was designed to run on something other that Win95? How can you claim this is about competition in the operating systems market, if you're not marketing another operating system? What is that other operating system?

Novell's lawyers appear, by this time, quite flabbergasted. This is all about a version designed *for* Win95, and the judge says that if Novell can't prove that it was designed for something other than Win95, the whole case gets tossed out? Exchange of glances, shrugs, dismayed head-shaking...

Novell puts up a chart showing the numerous different versions of WordPerfect: for Dos, for Win3, Win3.1, OS/2, Unix, etc.

But, says Judge Motz, those are *earlier* versions. The evidence all says you just wanted a Windows 95 product. The developers -- Harral, Richardson, Gibb -- all testified that they loved the new technology. They wanted to marry their new product to it. Show me the new operating system which was going to be competitive, or else I just have to assume that Windows 95 won the market because it had superior technology.

Again Mr. Johnson contradicts Judge Motz, saying that for one thing, the "middleware" capabilities of WordPerfect make it, itself, the OS-replacement; or at least, the thing that would make the OS choice unimportant. Besides, says Mr. Johnson, that isn't a point we have to prove, because it's already been ruled on.

"If I say you have to prove it," says Motz, "then you have to prove it."

"That's why we have a thing called 'the law of the case'," responds Johnson.

Judge Motz slams both palms down on the desk, then points his finger at Mr. Johnson. "DON'T talk to me about 'law of the case'," he says. "When I ruled the way I did, I didn't have the evidence from Gibb, or Harral, or Richardson. If I feel like the new evidence says I was wrong before, then I'll say I was wrong. If I think the new evidence says the appeals court was wrong, then I'll say they were wrong. I can be wrong, but I don't have to *stay* wrong."

The civility in the courtroom suffered after that point. (On a personal note, I was shaking pretty badly -- the stress on top of no lunch -- and couldn't make a legible note after that.) However, since the proceedings thence became less "legal argument" and more like the layman's definition of "argument", my feelings of guilt over not bringing you a more complete blow-by-blow account are somewhat assuaged.

I will just say that at a number of points, Mr. Johnson had both of his fists clenched in his hair in an attempt to contain himself; Judge Motz, when he wasn't speaking, mostly turned away, using his hands to cover his face, and often his ears.

And just one other comment on the matter: during the interplay about Mr. Frankenberg's testimony, Mr. Johnson had the transcript up on the big screen reading it. It turned out that the majority of the transcript's content was Judge Motz's comments and that he and Frankenberg did not see eye to eye.

Then, the judge told Mr. Johnson "I'm going to order you to stop there." Johnson replied, "I agree, your honor, there is no need to get into the unfortunate comments on the next page."

Later, there were a couple of references by both Johnson and the judge to "Mr. Frankenberg's testimony prior to the unfortunate comments".

To end - I'll see if I can clarify the ending of the day's proceedings: they're not done. Argument on the Rule 50 motion will continue Monday morning, and Judge Motz will (may?) defer ruling on the motion until the completion of those arguments. They don't expect to go much longer, so the jury will be asked to come in on Monday, although it is unknown what time they might be brought into the courtroom. It is still possible - not improbable, even - that Judge Motz may grant the motion, and release the jury.

I'd say everybody agreed on one thing, though -- next stop for this case is the 10th Circuit Court of Appeals. ("The home grounds of Aspen Skiing", as Mr. Johnson put it...)
Mr. Johnson then attempted to resume his presentation about Microsoft's evangelism, and how it made Christy Sports v. Deer Valley inapposite, when he was again interrupted by Judge Motz asking, br

Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | Parent | # ]

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