www.groklaw.net/articlebasic.php?story=2007052007283873 -
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Published on: 5/31/2007
Last Visited: 11/13/2007
25. In fact, Novell requested that license because, althoughNovell would retain its copyright in the original UNIX and UnixWarecode, Novell would not have a right to use other intellectualproperty (such as any software know how) transferred in the APA andwould not have a copyright to future enhancements that itanticipated Santa Cruz would be making to the SVRX and UnixWarecode. (Declaration of Tor Braham in Support of Novell's OwnershipMSJ No. 1, PACER No. 281 ("Braham Decl.") ¶¶ 21-23, Ex.11 at NOV 39972-39973.)
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29.) Braham,Alter, Whisenant, and Higgins were all on the "Project Sleigh RideWorking Party List," which listed persons to whom drafts of
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36. Tor Braham, the principal person responsible for draftingthe APA and negotiating its contractual language on behalf ofNovell, confirms that Frankenberg "was not involved in thenegotiation or drafting of the contract language of the APA."(Braham Decl., ¶ 24(f).)
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39. Tor Braham, the principal person responsible for draftingthe APA and negotiating its contractual language on behalf ofNovell, confirms that Mattingly "was not involved in negotiating ordrafting the APA contract language."
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Q. Tor Braham in particular?
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41. Tor Braham confirms that Thompson "was not involved innegotiating or drafting the APA contract language."
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46. Tor Braham confirms that Chatlos "did not draft the APA" andthat Chatlos was not "the Novell business person directing thedrafting of the contract."
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Braham "reported to and
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51. Tor Braham received Levine's comments on Schedules 1.1(a)and (b), but does not recall Levine ever participating in APAnegotiations with Santa Cruz. (Braham Decl., ¶ 24(g).).
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54. Tor Braham has never heard of Broderick and confirms thatBroderick "was not involved in the APA negotiations or drafting."(Braham Decl., ¶ 24(d).).
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57. Tor Braham, the principal person responsible for draftingthe APA and negotiating its contractual language on behalf ofNovell, has never met Alok Mohan. (Braham Decl., ¶24(e).).
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64. Tor Braham, the principal person responsible for draftingthe APA and negotiating its contractual language on behalf ofNovell, was not aware of "any involvement" by Wilt in thenegotiation and drafting of APA contract language. (Braham Decl.,¶ 24(i).).
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67. Tor Braham, the principal person responsible for draftingthe APA and negotiating its contractual language on behalf ofNovell, does not recall any specific interactions with Madsenregarding the APA contractual provisions at issue. (Braham Decl.,¶ 24(j).).
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73. Tor Braham was the principal drafter of the APA. (BrahamDecl., ¶ 5.) Braham and others on Novell's legal team haveexplained that Novell deliberately excluded copyrights from thetransfer of assets to protect Novell's ongoing interests in theUNIX business.
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Bradford instructed Tor Brahamto retain Novell's intellectual property in UNIX and UnixWare toprotect Novell's SVRX revenue stream. (Bradford Decl., ¶¶6-9; Braham Decl., ¶ 14.) Among other things, Schedule 1.1(b)was revised to exclude "all copyrights" from the transfer ofassets. (Braham Decl., ¶ 15.) That exclusion was reviewed andleft intact by Novell representatives, including Tor Braham, DavidBradford, Aaron Alter, and Burt Levine. (Id. ¶ 16; Supp.Brakebill Decl., Ex.
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Tor Braham, outside counsel for Novell at Wilson Sonsini, wasthe principal drafter of the APA. (Novell's Opposition Facts,¶ 73.) Braham has submitted a declaration explaining in detailwhy he and his legal team deliberately excluded copyrights from thetransfer of assets to protect Novell's ongoing interests in theUNIX business. (Novell's Ownership MSJ No. 1 Facts,
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In excluding all copyrights from the transfer, Braham and histeam acted with the direct authorization of Novell.
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The persons involved in drafting andnegotiating those provisions for Novell were Tor Braham, AaronAlter, and Shannon Whisenant. (Novell's Opposition Facts, ¶32.) Jeff Higgins, of Brobeck Phleger & Harrison, representedSanta Cruz in APA contract negotiations and received at least onedraft of the Included and Excluded Assets schedules, in whichcopyrights were omitted from the Included Assets and expresslylisted as Excluded Assets. (Id.)
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Novell needed a license to use those. (Id.¶¶ 25, 28.) Tor Braham, Novell's outside counsel, thusrequested the Technology License Agreement to address thoseconcerns. (Id.)
d. SCO's reliance on a purported "joint" press release referringto "UNIX intellectual property" is misplaced.
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In support of that motion, Novellrelied upon the Declarations of Allison Amadia (PACER No. 278),David Bradford (PACER No. 279), James R. Tolonen (PACER No. 280),Tor Braham (PACER No. 281), and Ken Brakebill (PACER No. 284), allfiled on April 20, 2007, and the exhibits attached to thosedeclarations.
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