Judge Kimball said that the case was only at the point of deciding whether SCO's suit merits a trial, and that Novell is not in the position of submitting evidence to support the view that it doesn't until discovery. And even if Kimball were to decide Novell had acted without malice at this stage, later factual evidence may prove it otherwise.
At the centre of this is that SCO purchased UNIX Systems Laboratories (USL) assets from Novell. Novell acquired USL, the owner of the UNIX trademark and the UNIX System V source code, in 1993. Novell maintains that it did not transfer copyright during the SCO purchase and that it, and not SCO, is the owner of the UNIX copyright. SCO of course disagrees.
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