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Action takes action

A U.S. District Court in California granted Action Technologies' motion for a summary judgment, finding that certain functions of Novell's GroupWise 4.1 may violate an Action patent.

A U.S. District Court in California granted Action Technologies' motion for a summary judgment, finding that certain functions of Novell's (NOVL) GroupWise 4.1 may violate an Action patent.

A court date has not been set yet, but Action said that this motion marks the halfway point in this case.

"This represents over half of the case and now we have the bulk of the work behind us," said Sumi Shohara, Action's vice president of marketing. It appears that the court has upheld our claims. We are obviously hoping that the court will continue to find in our favor."

For Novell, this ruling is the beginning, rather than the end.

"The judgment basically denied us our request to dismiss the case," said Kristin Schultz, a Novell spokeswoman. "Action's press release stated 'Action wins summary judgment against Novell,' and that is very misleading because they have not won anything. All this ruling means is that they did not grant our request to throw the case out. It will go to trial."

The motion arises out of a suit brought by Action against Novell in November 1995. Action received a patent on June 1, 1993 for a technology to be bundled in products that Action hopes to release within the next year including messaging systems, calendars, and Internet deployment technologies. The company said that this technology is at the core of its patent portfolio.

But, Novell said that Action's patent is for public domain technology which would make it invalid. "They have a patent, and what they say we violate, the Internet violates. Products from just about every company violate their patent based on their broad criteria. If we are violating it, then sue the world. You can't patent public technology," said Schultz.

The judge decided that the terms of the patent should be defined very broadly, making it harder for Novell to claim that they did not violate Action's patent. So, Novell came up with a second strategy: attack the patent's validity.

Phil Zender, an attorney at Graham & James, agrees with Novell's take on the case. "It sounds like the issue of validity," he said. "Summary judgment is not the end of the case. Novell can continue to sell the product up to the court date. It is assuming that the patent is valid."

Zender said that taking the validity approach is very typical. "Once the court has granted a summary judgment, the first response is that it isn't valid."

Action said that it made several attempts to discuss the technology infringement out of court, but said that Novell was unresponsive.