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Marimba-Novadigm patent trial gets date

A bitter patent fight between rivals Marimba and Novadigm finally gets a trial date, nearly three years after the first suit was filed.

A bitter patent fight between rivals Marimba and Novadigm finally got a trial date today, nearly three years after the first suit was filed.

A trial is scheduled to start Nov. 7 for a lawsuit that Novadigm filed against Marimba in March of 1997, claiming that it was using the software distribution company's patented technology to make its flagship Castanet software.

Novadigm is seeking monetary damages, alleging lost sales and business opportunities from patent infringement.

Both companies make software that enables the automatic distribution of upgrades, data or transactions across a corporate network.

For its part, Marimba last July filed a countersuit against the Novadigm in U.S. District Court in San Jose, Calif., alleging that Novadigm infringed on a Marimba patent involving the distribution of code for updates.

An Oct. 2 hearing has been set to hear Marimba's claim. No trial date has been scheduled.

Albion Fitzgerald, founder and CEO of Novadigm, said in an interview that the company spent $50 million on research and development of its software, which he says can save corporations up to 80 percent on their computer upgrades. Novadigm filed for a technology patent in 1994 and was awarded a patent in 1996, the year Marimba was founded, Fitzgerald said.

"Marimba was just getting going, and push (technology) was very hot then," he said. Specifically, Novadigm alleges that Marimba infringed on a patent for technology that helps companies push, or automatically deliver, the appropriate software upgrades to desktops across a network.

Fitzgerald said a white paper Marimba published is at the heart of the dispute. He said the paper's contents were "very similar to our patent, which had just been publicized and was awarded in early 1997."

He said Novadigm sent Marimba a letter outlining its concerns about the white paper, stating how closely its contents matched the company's patented technology. Discussions over the matter broke down, however, and Novadigm filed its suit in 1997.

"Marimba is selling our technology," Fitzgerald said. Although the lawsuit is expensive and distracting, he said he expects an end result of "reasonable royalties for the loss of sales and an injunction of the use of our property going forward."

Marimba CEO Kim Polese said in a statement: "Marimba firmly believes Novadigm's suit to be without merit, and we feel strongly that we do not infringe Novadigm's patent."

Polese, who said Marimba would continue to pursue the "numerous defenses available to us in court," could not be reached for further comment. A spokeswoman said the company is in a mandated "quiet period" in anticipation of its quarterly earnings announcement later this month.