UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1482

NOVELL, INCORPORATED,

Plaintiff - Appellant,

v.

MICROSOFT CORPORATION,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, District Judge. 

(1:05-cv-01087-JFM)

Argued: March 22, 2011 Decided: May 3, 2011

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Reversed and remanded by unpublished opinion. Judge Duncan 

wrote the majority opinion, in which Judge Shedd joined. Senior 

Judge Hamilton wrote a dissenting opinion.

ARGUED: Charles J. Cooper, COOPER & KIRK, PLLC, Washington, 

D.C., for Appellant. David Bruce Tulchin, SULLIVAN & CROMWELL, 

New York, New York, for Appellee. ON BRIEF: Jeffrey M. Johnson, 

David L. Engelhardt, DICKSTEIN SHAPIRO LLP, Washington, D.C.; R. 

Bruce Holcomb, ADAMS HOLCOMB LLP, Washington, D.C.; David H. 

Thompson, Howard C. Nielson, Jr., David Lehn, COOPER & KIRK, 

PLLC, Washington, D.C., for Appellant. Richard J. Wallis, 
2

Steven J. Aeschbacher, MICROSOFT CORPORATION, Redmond, 

Washington; Steven L. Holley, SULLIVAN & CROMWELL, New York, New 

York; G. Stewart Webb, VENABLE LLP, Baltimore, Maryland, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

DUNCAN, Circuit Judge:

This appeal arises out of the district court’s grant of 

summary judgment in favor of Microsoft Corp. (“Microsoft”) in an 

action against it by software company Novell, Inc. (“Novell”). 

Although the underlying lawsuit involves complex issues of 

antitrust law, the primary question before us is one of contract 

interpretation: whether a 1996 contract between Novell and a 

third company divested Novell of its right to bring the present 

claim. Concluding that Novell retained ownership of the claim, 

which is not otherwise barred by res judicata, we remand for 

further proceedings.

I.

A.

A detailed discussion of Novell’s underlying antitrust 

action can be found in our prior opinion in this case. See

Novell, Inc. v. Microsoft Corp., 505 F.3d 302, 305-10 (4th Cir. 

2007). We focus here on those facts necessary to an explication 

of the parties’ present dispute.

Between 1994 and 1996, Novell owned certain “officeproductivity” software applications. Id. at 305. These 

applications included “WordPerfect, a word-processing 
4

application, and Quattro Pro, a spreadsheet application.”1 Id.

(footnotes omitted). During this period, Novell also owned a 

variety of products comprising its desktop operating system 

(“DOS”) business,2

Novell believed, and the Utah Court of Appeals would later 

find, that its DOS products were “the target of anticompetitive 

practices by Microsoft in the early 1990s.” Novell, Inc. v. 

Canopy Group, Inc., 92 P.3d 768, 770 (Utah App. Ct. 2004). 

Novell’s board of directors was concerned, however, that “if 

they brought suit against Microsoft in a private antitrust 

action, Microsoft would retaliate with further unfair practices 

that could neutralize the value of any antitrust recovery.” Id. 

To guard against such an eventuality, Novell sought to 

effectuate a sale that would obligate the purchaser to sue 

including “an operating system known as Novell 

DOS.” Id. at 306 n.10.

 1 Both word-processing applications and spreadsheet

applications are computer software. The former “enables an enduser to create, edit, and print text-based documents,” and the 

latter allows “an end-user to organize and manipulate 

quantitative data.” Novell, Inc., 505 F.3d at 305 n.2 & n.3.

2 “An operating system is software that controls the 

computer’s resources, including memory, disk space, keyboards, 

and the central processing unit. An operating system also 

facilitates communication between the computer’s resources and 

software applications, including word-processing and spreadsheet 

applications.” Novell, Inc., 505 F.3d at 305 (footnote 

omitted).
5

Microsoft, allow Novell to share in the recovery, and also 

obscure Novell’s role in the action against Microsoft. Id.

To that end, on July 23, 1996, Novell executed an Asset 

Purchase Agreement (“the Agreement”) with Caldera, Inc. 

(“Caldera”). Under the terms of the Agreement, Novell 

“transfer[red] to Caldera specified assets and liabilities 

comprising the DOS Business, including the products associated 

with the DOS Business” and “assign[ed] to Caldera certain 

related rights and agreements.” J.A. 1963. In exchange, 

Caldera paid Novell a purchase price of $400,000.

Novell’s sale of assets was designed to divest the company 

of its various DOS products and assign the rights to any 

antitrust litigation related to those products. Specifically, 

the Agreement provided that “Novell shall grant, transfer, 

convey, and assign to Caldera all of Novell’s right, title, and 

interest in and to any and all claims or causes of action held 

by Novell at the Closing Date and associated directly or 

indirectly with any of the DOS Products or Related Technology.” 

J.A. 1966-67. As defined in the Agreement, “DOS Products” 

included a list of thirteen products,3

 3 The thirteen enumerated products were: CP/M, Concurrent 

DOS, DR DOS 6.0, DR DOS 5.0, Multiuser DOS, Novell DOS 7.0, 

PALMDOS, GEM, GEM Draw, GEM Wordchart, GEM Graph, GEM 

Programmers Toolkit, and Draw Plus.

consisting of “seven 
6

versions of Novell’s DOS operating system and six DOS-based 

software applications.” Appellant’s Br. at 12. The Agreement 

also defined “Related Technology,” explaining that the term 

encompassed “all existing technology . . . necessary to the 

performance by the DOS Products of their intended functions or 

purposes.” J.A. 1965.

As contemplated, Caldera filed suit against Microsoft the 

same day the Agreement was signed, alleging harm to “DR DOS and 

related PC operating system software.” J.A. 1955. Three and 

one-half years later, in January 2000, Microsoft settled 

Caldera’s lawsuit. In exchange for being released from 

Caldera’s claims against it, Microsoft paid Caldera $280 

million. Per their agreement, Caldera provided Novell with 

about $35.5 million of this settlement.4

B.

In November 2004, Novell filed the six-count antitrust 

action underlying this appeal.5

 4 Novell sued Caldera’s successor in interest seeking a 

larger share of the settlement and ultimately received an 

additional $17.65 million. See generally Novell, Inc., 92 P.3d 

at 768.

 As relevant here, Count I 

asserted that Microsoft had “engag[ed] in anticompetitive 

5 The complaint was originally filed in the federal district 

court for the district of Utah. In May 2005, the Judicial Panel 

on Multidistrict Litigation transferred the suit to the district 

of Maryland.
7

conduct to thwart the development of products that threatened to 

weaken the applications barrier to entry” to the operating 

systems market.6

In June 2005, the district court granted Microsoft’s motion 

to dismiss Counts II, III, IV, and V as untimely. However, it 

 J.A. 100. Specifically, it contended that 

Microsoft’s conduct had damaged “Novell’s WordPerfect word 

processing applications and its other office productivity 

applications in violation of Section 2 of the Sherman 

[Antitrust] Act, 15 U.S.C § 2.” Id. In Count VI, Novell 

alleged that Microsoft had made exclusionary agreements with 

original equipment manufacturers, which restricted the licensing 

of Novell’s software applications, in unreasonable restraint of 

trade.

 6 The “applications barrier to entry” refers to the role 

software applications can play in insulating an operating system 

marketer from competition. We discussed this barrier to entry 

in detail in our previous decision in this case, explaining,

the “applications barrier to entry”-stems from two 

characteristics of the software market: (1) most 

consumers prefer operating systems for which a large 

number of applications have already been written; and 

(2) most developers prefer to write for operating 

systems that already have a substantial consumer base. 

This “chicken-and-egg” situation ensures that 

applications will continue to be written for the 

already dominant Windows, which in turn ensures that 

consumers will continue to prefer it over other 

operating systems.

Novell, Inc., 505 F.3d at 306 (quoting United States v. 

Microsoft Corp., 253 F.3d 34, 55 (D.C. Cir. 2001)).
8

found that Novell had antitrust standing to proceed on Counts I 

and VI. In doing so, the court expressly rejected Microsoft’s 

argument that Novell had assigned its claims under Count I to 

Caldera as part of the sale of the DOS products. The court 

explained:

The fallacy in [Microsoft’s] argument is that the 

claim asserted in Count I, while arising from 

Microsoft’s monopoly in the operating system market, 

is for damage not to DOS or any other operating system 

but for damage to applications software. It is a far 

stretch to infer (and Microsoft has presented nothing 

to establish) that simply because DOS competed in the 

operating system market, such a claim was either a 

“direct” or “indirect” claim intended to be 

transferred from Novell to Caldera.

J.A. 108 (emphasis added). The district court subsequently 

granted Microsoft’s request that it certify its ruling for 

interlocutory review.

In October 2007, we affirmed the district court’s dismissal 

of Counts II, III, IV, and V, as well as its determination that 

Novell had standing to bring Counts I and VI. See Novell, Inc., 

505 F.3d at 322-23. In a brief footnote, we acknowledged 

Microsoft’s assertion that Novell had assigned its claims under 

Counts I and VI to Caldera and the district court’s rejection of 

that argument. Id. at 306-07 n.10. However, because the issue 

was not before us, we declined to reach it. Id. at 307 n.10 

(observing that our narrow grant of interlocutory appeal did not 

include issues related to the transfer of Counts I and VI).
9

Following our decision, the parties completed discovery on 

Counts I and VI and filed cross-motions for summary judgment. 

On March 30, 2010, the district court granted Microsoft’s motion 

for summary judgment.

As to both Count I and Count VI, the district court 

reversed its earlier interpretation of the Agreement. It 

specifically concluded that its prior determination that Novell 

did not assign its claims under these counts to Caldera because 

they focused on harm to its software applications rather than 

operating systems was wrong. The court now felt that the 

reference to “associated” claims encompassed Counts I and VI, 

because, inter alia, “the reason Microsoft allegedly engaged in 

the conduct causing the damage [asserted in those counts] was to 

obtain and maintain its monopoly in the operating system market-

-the market in which the DOS Products competed.” J.A. 371.

However, out of an abundance of caution, recognizing that 

we might disagree with its new interpretation, the district 

court nonetheless proceeded to “address the substantive 

viability of Novell’s claims” to facilitate our review of their 

merits on appeal. J.A. 369. It concluded that, if Novell had 

not assigned Counts I and VI to Caldera, only Count I would have 

survived summary judgment. The court found, however, that 

Novell had failed to adequately plead harm to the software 
10

application “GroupWise” in Count I and so dismissed that portion 

of its allegations. This appeal followed.

II.

On appeal, Novell renews its argument that the Agreement 

did not transfer its Count I claims related to the office 

productivity applications. Novell further disputes Microsoft’s 

assertion that Novell’s participation in Caldera’s settlement 

precludes it from litigating Count I under principles of res 

judicata. It also contests Microsoft’s claim that there are, in 

any event, no disputed issues of material fact as to Count I. 

Finally, Novell urges that its complaint provided sufficient 

notice of its allegations related to GroupWise.7

We consider each argument in turn. In doing so, we review 

the grant of summary judgment de novo and affirm only if there 

is no issue of material fact and Microsoft is entitled to 

judgment as a matter of law. Robinson v. Clipse, 602 F.3d 605, 

607 (4th Cir. 2010).

 7 Novell’s opening brief did not argue that the district 

court erred by granting summary judgment as to Count VI, and 

Novell confirmed in oral argument that it was not pursuing this 

claim.
11

A.

We first address whether Novell assigned the claims it 

seeks to bring to Caldera. As the Agreement specified that it 

is “governed in all respects” by Utah law, J.A. 1980, we begin 

our analysis by outlining that state’s legal framework.

1.

When construing an agreement, Utah courts “look to the 

language of the contract to determine its meaning and the intent 

of the contracting parties,” and “‘consider each contract 

provision . . . in relation to all of the others, with a view 

toward giving effect to all and ignoring none.’” Café Rio, Inc. 

v. Larkin-Gifford-Overton, LLC, 207 P.3d 1235, 1240 (Utah 2009) 

(quoting Green River Canal Co. v. Thayn, 84 P.3d 1134, 1141 

(Utah 2003)) (alteration in original). In conducting their 

assessment, Utah courts consider “the reasonable expectations of 

the parties, looking to the agreement as a whole and to the 

circumstances, nature, and purpose of the contract.” Green 

River Canal Co., 84 P.3d at 1142 (quoting Peirce v. Peirce, 994 

P.2d 193, 198 (Utah 2000)).

Utah’s approach to the issue of ambiguity in a contract is 

somewhat unique. See Daines v. Vincent, 190 P.3d 1269, 1276 

(Utah 2008) (citing the Utah Supreme Court’s efforts “to 

establish a balanced, ‘better-reasoned’ approach to an analysis 

of facial ambiguity that would allow judges to ‘consider the 
12

writing in the light of the surrounding circumstances’”) 

(quoting Ward v. Intermountain Farmers Ass’n, 907 P.2d 264, 268 

(Utah 1995)). Utah courts employ a two-step approach to 

determine whether a contract is facially ambiguous. First, they 

assess “any relevant and credible extrinsic evidence offered to 

demonstrate that there is in fact an ambiguity.” City of 

Grantsville v. Redevelopment Agency of Tooele City, 233 P.3d 

461, 470 (Utah 2010) (internal quotations omitted); see also

Ward, 907 P.2d at 268 (reasoning that absent such evidence “the 

determination of ambiguity [would be] inherently one-sided, 

namely, it [would be] based solely on the extrinsic evidence of 

the judge’s own linguistic education and experience” (internal 

quotation marks omitted)). They then determine whether 

“competing interpretations are reasonably supported by the 

language of the contract.” Daines, 190 P.3d at 1277 (internal 

quotation marks omitted). Although the process allows extrinsic 

evidence on the question of ambiguity, the Utah Supreme Court 

has cautioned that “a finding of ambiguity will prove to be the 

exception and not the rule.” Id. at 1277 n.5.

2.

Against the backdrop of Utah’s principles of contract 

interpretation, we now consider the relevant provisions of the 

Agreement. The parties dispute whether the language “associated 

directly or indirectly with any of the DOS Products or Related 
13

Technology,” J.A. 1967, transferred Novell’s claim of harm to 

its office productivity software. We conclude that it did not.

Microsoft argues that the phrase “associated directly or 

indirectly” is to be read broadly and, consequently, forecloses 

Novell’s present claims. In support of its contention that the 

Agreement transferred these claims to Caldera, Microsoft cites 

six “associations” between the DOS products and the office 

productivity software, most prominently that Count I “links 

injury allegedly inflicted by Microsoft on [software products] 

with harm to competition in the PC operating system market, and 

thus with DR DOS, which competed in that market.”8

Microsoft’s argument is not without some intuitive merit. 

The phrase “associated directly or indirectly” can be read 

 Appellee’s 

Br. at 34 (emphasis added).

 8 The five additional purported “associations” identified by 

Microsoft are: (1) despite Novell’s claim that it was no longer 

marketing its operating system when the conduct alleged in Count 

I began, the value of its DOS products would still have been 

affected by Microsoft’s alleged efforts to bolster the 

applications barrier to entry; (2) despite the limited volume of 

sales, Novell sold DOS products during the period at issue, and 

the value of those products was affected by the conduct alleged 

in Count I; (3) Caldera’s suit against Microsoft sought 

injunctive relief in the form of disclosure of technical data 

that would have “addressed much of the alleged conduct 

underlying Count I,” Appellee’s Br. at 37; (4) the conduct 

alleged in Count I was supposed to have occurred in a market

that Microsoft dominated because of anticompetitive behavior 

toward Novell’s DOS products; and (5) Microsoft targeted Novell 

in part because Novell had entered the DOS business.
14

broadly. Caldera’s DOS claims and Novell’s software application 

claims are certainly “associated” in some sense of the word; 

both sets of products have roles to play--although distinct 

roles to be sure--in the operating systems market. The 

elasticity of the phrase is not, however, unlimited.

We conclude that Microsoft’s argument fails for two 

reasons. First, Utah law mandates that we not read contractual 

provisions in isolation. We instead consider the disputed 

language in the context of the agreement in which it appears. 

See Café Rio, 207 P.3d at 1240.

Here, the disputed language is cabined by reference to a 

specific set of property, transferring claims “associated 

directly or indirectly with any of the DOS Products or Related 

Technology.” J.A. 1967 (emphasis added). The Agreement 

precisely delineated what that property consisted of, by 

identifying thirteen products, none of which is the office 

productivity software that forms the basis of the present claim. 

Viewed in this context, Microsoft’s expansive reading of the 

disputed provision is antithetical to the carefully limited 

“circumstances, nature, and purpose” of the Agreement. Peirce, 

994 P.2d at 198; see also Green River Canal Co., 84 P.3d at 

1142; cf. Grynberg v. Questar Pipeline Co., 70 P.3d 1, 8 (Utah 

2003) (“[W]hen two statutory provisions appear to conflict, the 

more specific provision will govern over the more general 
15

provision.”) (quoting Perry v. Pioneer Wholesale Supply Co., 681 

P.2d 214, 216 (Utah 1984)).

More fundamentally, Microsoft’s preferred reading lacks a 

logical limiting principle. Given operating systems’ ubiquitous 

role in personal computing, it is difficult to imagine a piece 

of hardware or software that could not be somehow “associated” 

with Novell’s DOS products under Microsoft’s capacious theory. 

Tellingly, Microsoft’s counsel was unable to articulate 

meaningful boundaries for the company’s reading at oral 

argument. Counsel argued only that the disputed language would 

not extend to “causes of actions associated in such a farreaching way that it would be illogical to connect them to DRDOS.” We agree that the language of the contract must be 

cabined by the limits of logic. However, given the context in 

which the disputed phrase appeared, we believe Microsoft’s 

reading exceeds those boundaries.

As the district court initially recognized, the express 

purpose of the Agreement was to assign to Caldera the rights and 

liabilities associated with “the DOS Products or Related 

Technology,” J.A. 1967, a carefully delineated term. The 

precise phrasing of the contract entitled Caldera to sue (and 

share the recovery with Novell) for claims involving its 

operating system products, but did not preclude Novell from 

suing for separate harm to the separate interest in the software 
16

applications it retained. Indeed, our prior decision was 

premised on the severability of harms to software from harms to 

DOS products, as we anchored our standing analysis in Novell’s 

ability to articulate discrete antitrust harms to its office 

productivity applications, though those products did not 

themselves compete with operating systems. See Novell, Inc., 

505 F.3d at 320. The dissent’s characterization to the 

contrary, it is the notion that an Agreement that purported to 

transfer a specific set of property in fact evinced Novell’s 

intent to transfer claims for a wholly separate property 

interest that, in this context, makes little sense.

To the extent that Utah law endorses review of extrinsic 

evidence, the available materials only reinforce our conclusion 

that the Agreement unambiguously supports Novell’s reading. As 

Novell notes, the record includes affidavits and testimony from 

Caldera’s negotiator, Novell’s general counsel, and Novell’s 

CEO, which attest to the absence of any intention to convey 

Novell’s present claims. For instance, Caldera’s negotiator’s 

affidavit states:

Neither party contemplated that claims “directly or 

indirectly” related to “the DOS Products or Related 

Technology” would include Novell’s antitrust claims 

for harm to its business applications. Any suggestion 

that the Asset Purchase Agreement conveyed claims for 

harm to Novell’s applications would be contrary to the 

parties’ intentions and what I and my client, Caldera, 

understood was actually being conveyed to it.
17

J.A. 5024 (emphasis added). 

For its part, Microsoft cites extrinsic evidence that, 

prior to its agreement with Caldera, Novell contemplated a jury 

“piggyback[ing]” damages in the applications market to a DOSrelated antitrust suit. J.A. 1443. Microsoft claims that that 

suit was ultimately brought by Caldera as Novell’s “proxy.” 

Appellee’s Br. at 42. It further urges that the fact that 

Caldera sought injunctive relief that would have indirectly 

benefited Novell’s applications business demonstrates that the 

parties’ “assignment was intended to encompass all claims 

arising out of Microsoft’s allegedly anticompetitive conduct.” 

Id. at 41.

We do not find Microsoft’s showing persuasive. Indeed, 

Microsoft’s extrinsic evidence is equally susceptible to the 

opposite reading, that is, that Caldera’s failure to seek 

damages for harm to office productivity applications indicates 

that neither party contemplated the transfer of claims related 

to that discrete set of property--a conclusion that is entirely 

consistent with the testimony on which Novell relies. Having 

considered both parties’ extrinsic evidence in the context of 

the contractual provisions discussed above, we do not believe 

that Microsoft’s “competing interpretation[]” is “reasonably 

supported by the language of the [Agreement].” City of 

Grantsville, 233 P.3d at 471 (quoting Daines, 190 P.3d at 1269).
18

In short, our reading of the entire Agreement, as well as 

the extrinsic evidence persuades us that the district court’s 

initial interpretation was correct: the Agreement conveyed 

claims “associated” with an expressly enumerated body of 

property that did not include Novell’s office productivity 

applications. The mere existence of a possible conceptual link 

between the DOS products and those applications does not mean 

that the Agreement divested Novell of the claims alleged in 

Count I.

B.

Microsoft’s res judicata argument also lacks merit. 

Microsoft urges in particular that Novell’s participation in the 

Caldera litigation, and acceptance of a portion of the 

settlement in that case, precludes it from asserting additional 

claims, which Microsoft alleges arise out of the same basic core 

of operative facts. See Laurel Sand & Gravel, Inc. v. Wilson, 

519 F.3d 156, 162 (4th Cir. 2008) (“The test for deciding 

whether the causes of action are identical for claim preclusion 

purposes is whether the claim presented in the new litigation 

arises out of the same transaction or series of transactions as 

the claim resolved by the prior judgment.” (internal quotations 

omitted)); see also 1616 Reminc Ltd. P’ship v. Commonwealth Land 

Title Ins. Co., 778 F.2d 183, 187 (4th Cir. 1985).
19

Nonmutual claim preclusion is generally disfavored. See

18A C.A. Wright, et al., Federal Practice & Procedure § 4464.1, 

at 713-15 (2d ed. 2002). Microsoft nevertheless argues that the 

Caldera settlement falls within exceptions to that principle, 

which allow nonparty claim preclusion when there are 

“substantive legal relationship[s] between the person to be 

bound and a party to the judgment,” or when the nonparty was 

“adequately represented by someone with the same interests who 

[wa]s a party to the suit.” Taylor v. Sturgell, 553 U.S. 880, 

894 (2008) (internal quotations omitted) (second alteration in 

original). We disagree.

Microsoft’s somewhat confusing assertion that Novell’s 

assignment of some of its claims to Caldera was sufficient to 

establish a “substantive legal relationship” between them is 

unpersuasive. It relies entirely on easily distinguishable 

caselaw that concerns situations in which a subsequent suit 

raises “identical issues.” See Appellee’s Br. at 47-48 (quoting 

Pelt v. Utah, 539 F.3d 1271, 1290 (10th Cir. 2008)). As 

discussed above, Caldera’s suit addressed a distinct set of 

harms from those addressed in Count I: the former concerned DOS 

products, the latter software applications. Any appearance of 

identicality between the claims is a product of the level of 

generality at which Microsoft seeks to frame them. See, e.g., 

Appellee’s Br. at 50 (“Both suits allege that Microsoft engaged 
20

in anticompetitive conduct in the PC operating system market.”); 

see also id. (claiming only that the two suits are “strikingly 

similar”). While both suits implicated Microsoft’s desire to 

control the operating system market, overlapping motivation for 

separate harms is insufficient to render those harms identical 

for purposes of claim preclusion.

We are also not convinced that Caldera could have served as 

an adequate representative of Novell’s interests. As the 

district court noted, “Caldera could not have asserted on behalf 

of Novell claims Caldera did not possess.”9

C.

 J.A. 376 n.9. 

Moreover, as a practical matter, only Novell had the incentive 

to recover for damages to its office productivity applications. 

On these facts, res judicata simply does not apply.

Microsoft’s claim that there are no remaining disputed 

issues of material fact is also unavailing. Microsoft asserts 

that Count I’s antitrust allegations are fatally flawed, as 

Novell cannot make the required showing that Microsoft’s conduct 

 9 For the same reason, we reject Microsoft’s argument that 

Novell’s initiation of a separate action constitutes claimsplitting. Caldera could not have sought damages for harm to 

the office productivity applications in its initial suit, as it 

did not own those applications. As a result, Novell did not 

have a “full and fair opportunity” to litigate its present 

claims in that action. Taylor, 553 U.S. at 892; Pueschel v. 

United States, 369 F.3d 345, 356 (4th Cir. 2004).
21

toward its office productivity applications helped maintain 

Microsoft’s monopoly power. In support of its argument, 

Microsoft cites Novell’s expert in antitrust economics’ 

testimony that, in a hypothetical market where Microsoft had 

only targeted Novell, “there would have been no adverse effect

of knocking Novell out of the industry.” J.A. 392.

Microsoft’s claim mischaracterizes the impact of the 

expert’s testimony. As the district court explained, Novell’s 

expert’s opinion about a hypothetical market leaves ample room 

for “a finding that Microsoft’s actions toward Novell were a 

significant contributor to anticompetitive harm in the PC 

operating system market in light of the weakened state of other 

applications and [independent software vendors].” J.A. 393 

(emphasis added). That issue is appropriate for trial. 

D.

Finally, we reject Novell’s argument that claims related to 

“GroupWise” software were adequately pleaded in Count I. To 

satisfy the pleading requirements, a “complaint ‘need only give 

. . . fair notice of what the claim is and the grounds upon 

which it rests.’” Coleman v. Md. Court of Appeals, 626 F.3d 

187, 190 (4th Cir. 2010) (quoting Erickson v. Pardus, 551 U.S. 

89, 93 (2007) (per curiam)); see also Fed. R. Civ. P. 8(a)(2) 

(noting that a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to 
22

relief”). Novell concedes that its complaint does not reference 

GroupWise. It nonetheless argues that it should not be 

penalized for having used the umbrella term “office productivity 

applications” to describe the software at issue. This claim 

lacks merit.

Given the fairly generous standards of notice pleading, the 

fact that GroupWise was not mentioned in Novell’s lengthy 

complaint is not necessarily dispositive. However, Novell did 

not simply fail to mention GroupWise in its complaint. Rather 

its pleading expressly characterized what the term “office 

productivity applications” was intended to encompass, 

explaining: “Word processing and spreadsheet applications are 

sometimes referred to herein as ‘office productivity 

applications.’” J.A. 51. This description, by its terms, 

excludes GroupWise, which “is a software program that combines 

e-mail, calendar, appointment scheduling, and task management 

functions.” Action Tech., Inc. v. Novell Systems, Inc., Nos. 

97-1460, 97-1481, 1998 WL 279359, at *2 (Fed. Cir. May 27, 1998) 

(unpublished). We cannot conclude, under these circumstances, 

that Microsoft was provided fair notice of GroupWise claims.

Nor are we persuaded by Novell’s assertion that because 

Microsoft included GroupWise in its discovery requests, it was 

not prejudiced by any defects in Novell’s pleading. As the 

district court found, “[w]hat material is subject to discovery 
23

and what conduct may serve as the basis of a claim are two 

distinct inquiries with different standards.” J.A. 383. We are 

disinclined to penalize Microsoft for having prudently sought 

broader discovery than may have been necessary.

III.

For the foregoing reasons we reverse the grant of summary 

judgment as to Count I and remand for further proceedings.

REVERSED AND REMANDED
24

HAMILTON, Senior Circuit Judge, dissenting:

Between 1994 and 1996, Novell owned WordPerfect, a word 

processing software application, and Quattro Pro, a spreadsheet 

software application. In Counts II through V of its complaint, 

Novell sought damages for Microsoft’s alleged monopolization 

(and attempted monopolization) of the word processing and 

spreadsheet software application markets, in which WordPerfect 

and Quattro Pro competed. These claims, all parties agree, are 

barred by the applicable statute of limitations under the 

Sherman Act. Count I, which is the subject of this appeal, 

seeks damages for the same claims that are time-barred in Counts 

II through V. More specifically, Novell alleges in Count I that 

Microsoft’s antitrust violations in the operating systems 

market, which tolled the statute of limitations during the 

pendency of the government’s case against Microsoft for 

antitrust violations in such market, damaged their word 

processing and spreadsheet software applications. The flaw in 

Count I is obvious: because the claim is premised on Microsoft’s 

anti-competitive conduct in the operating systems market, Count 

I necessarily is a claim “associated directly or indirectly 

with” DR DOS. (J.A. 1966-67).

To be sure, the majority recognizes that the phrase 

“‘associated directly or indirectly’ [contained in the Asset 

Purchase Agreement (APA)] can be read broadly” to cover the 
25

claim asserted in Count I. Ante at 13-14. However, the 

majority ignores the plain, patently broad language in the APA, 

choosing instead to craft its own narrow reading of the phrase, 

for two reasons.

First, the majority states that the phrase at issue “is 

cabined by reference to a specific set of property” that was 

transferred in the APA. Ante at 14. As its reasoning goes, 

because word processing and software applications were not part 

of this specific set of property, such applications could not be 

directly or indirectly related to the specific set. Such 

reasoning is flawed for the simple reason that it reads out the 

word “indirectly” from the APA. The word “indirectly” was 

inserted into the APA for an obvious reason—to allow Caldera to 

proceed with a claim against Microsoft that was not envisioned 

by the parties, but nevertheless related in some indirect manner 

to the DR DOS operating system. Count I fits perfectly under 

the APA’s “indirect” umbrella. The claim is premised on harm 

caused, not in the software applications market in which both 

WordPerfect and Quattro Pro competed, but rather in the 

operations systems market in which both Microsoft’s Windows 95 

and DR DOS competed. Thus, at the very least, the harm to 

WordPerfect and Quattro Pro caused by Microsoft’s monopolization 

of the operating systems market is indirectly (even perhaps 

directly) associated with DR DOS. 
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And it should come as no surprise that the term 

“indirectly” made its way into the APA. All encompassing words 

such as “indirectly” are commonly used in asset purchase 

agreements to cover such unforeseen events, and courts should 

read such terms broadly to ensure clarification and protection 

to the rights of all parties to a contract. Yet, the majority 

takes the opposite tack, reading an extremely broad term 

narrowly. Put simply, common sense tells us that a claim that 

only exists by virtue of Microsoft’s alleged monopolization of 

the operating systems market is a claim “indirectly” related to 

the DR DOS operating system. 

Second, the majority relies on certain flimsy extrinsic 

evidence, which, according to it, “attest[s] to the absence of 

any intention to convey Novell’s present claims.” Ante at 16. 

Such evidence includes the affidavits and testimony of Novell’s 

general counsel, Novell’s CEO, and Caldera’s chief negotiator. 

Any examination of such evidence must be viewed with extreme 

caution, as it is undisputed that: (1) Novell sold DR DOS, in 

part, to allow another party, such as Caldera, to proceed 

against Microsoft in an antitrust action; and (2) Novell and 

Caldera worked in tandem in the Caldera action to litigate 

against Microsoft. More importantly, as the able district judge 

handling the case below recognized, such extrinsic evidence is 

“ambiguous and inconclusive,” (J.A. 374), as neither party 
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contemplated the existence of the Count I claim until it became 

apparent that the claims in Counts II through V were timebarred. However, the absence of such contemplation does not 

inject any ambiguity into the APA, because, as the district 

judge aptly observed, Novell unmistakably assigned “claims for 

damage inflicted upon Novell’s software applications through the 

prism of the operating system market,” (J.A. 371), such that the 

harm to the software applications were indirectly associated 

with the operating market in which DR DOS competed. (J.A. 371).

In sum, because I believe the district judge correctly 

granted summary judgment in favor of Microsoft on Count I, in 

its thorough and convincingly written opinion, I respectfully 

dissent.