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SCO Motion to Bifurcate in IBM case.
Saturday, March 27 2004 @ 12:53 PM EST

SCO has filed a Motion to Bifurcate in the IBM case. The documents are not available yet, but the court filing is recorded on Pacer and it looks like this:

119 - Acceptance of service of Subpoena Duces Tecum as to IBM 3/25/04
120 - Motion by SCO Grp to bifurcate
121 - Memorandum by SCO Group in support of [120-1] motion to bifurcate
122 - Notice of service of Subpoenas Duces Tecum by IBM Inc

What is so funny is just this morning, I got an email from one of the attorneys who explain this case to me behind the scenes and here is what he wrote:

"I'm waiting for the Motion to Bifurcate. I'm sure SCO wants to split its hopeless claims from its less hopeless claims."

From the message, you can get what a motion to bifurcate is. The reasons for asking to bifurcate vary, but usually it's because you hope that if you settle one issue, you won't have to litigate the rest, or it will direct the rest in a way you would like. We'll have to wait to see the actual document to understand what their argument is.

If you wish to see a case where the judge said no to a Motion to Bifurcate, here you go. The judge in that case said that he could grant such a motion "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy" but he declined on the grounds that while the issue they asked to be bifurcated could be decisive, it should be presented as a summary judgment motion instead, because it was just a matter of law, not of disputed facts needing to be established in a trial. So from that, you can see that one reason for putting in a motion to bifurcate is if you think one part of your case can win, and if it does, you don't need to try the rest. In this case, that seems unlikely to be the motive, since it's hard to see what part of SCO's case would qualify for such a hope. But, again, this is just to explain motions to bifurcate and to show that the decision is the judge's to make. We really need to wait and see what they are specifically seeking to bifurcate.

Meanwhile, the order granting IBM the stipulated time until the 26th to answer SCO's Second Amended Complaint has been signed by Judge Kimball. We haven't seen Judge Wells now for a while, not since the discovery order, and I'm beginning to wonder if we will see her again or if Kimball has decided to step in.


  


SCO Motion to Bifurcate in IBM case. | 310 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO Motion to Bifurcate in IBM case.
Authored by: Vaino Vaher on Saturday, March 27 2004 @ 01:15 PM EST
Will this speed things up, or is it a stalling tactic?

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: dtidrow on Saturday, March 27 2004 @ 01:18 PM EST
"I'm waiting for the Motion to Bifurcate. I'm sure SCO wants to split its
hopeless claims from its less hopeless claims."

They're all totally hopeless, so what's the point?

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: jfabermit on Saturday, March 27 2004 @ 01:19 PM EST
Just posted this in the Novell thread, but it makes more sense here:

IANAL, etc., but here was my first thought...maybe they are panicking about not
being able to meet their rather clear obligations under the 45-day discovery
extension.

Could SCO, fearing that their copyright claims may be in trouble (as evidenced
by their slander of title allegation against Novell, rather than breach of
copyright) be trying to spin off the contract dispute part of the case from the
copyright half?

Could something like this save them from having to specify lines of code, which
they seem rather reluctant to do, to say the least?

It does seem odd, does it not, that SCO, who brought the case against IBM, wants
to split it. I would have thought a defendant might want this, since they are
the one responding to the complaint, not a plaintiff, who had the choice of how
to file the case originally.

[ Reply to This | # ]

Dumb question, but what is 'pacer'?
Authored by: Captain on Saturday, March 27 2004 @ 01:24 PM EST
Can I get that on my computer? Is there an RSS feed?

[ Reply to This | # ]

Subpoenas Duces Tecum ?
Authored by: dhs13 on Saturday, March 27 2004 @ 01:25 PM EST
What we need is an explanation of what is Subpoenas Duces Tecum ?

[ Reply to This | # ]

Liklihood of rejection?
Authored by: sphealey on Saturday, March 27 2004 @ 01:26 PM EST
I am assuming that IBM will file in opposition to this motion. If that is a bad
assumption please let me know ;-)

If so, how likely is it that the motion to bifurcate will be rejected? Are
there legal arguments that IBM could advance along the lines of "look -
they don't have any grounds for a suit here - they just want to prolong their
fishing expedition" ? Or are there other grounds on which the motion could
be rejected? How often are such arguments accepted?

Groklaw legal scholars - help us out!

sPh

[ Reply to This | # ]

I suppose that this might explain the stock rise
Authored by: BigDave on Saturday, March 27 2004 @ 01:33 PM EST
Seems that the price always gets run up whenever something like this is going to
come out.

Now SCOX is going to play it up as part of their grand plan, which of course
will fail

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: linonut on Saturday, March 27 2004 @ 01:33 PM EST
Sounds like SCO might want to split the trial into a liability
phase and a punitive-damages phase. Or is there are more
obvious legal split?

Or does bifurcation allow various transgressions to be
tried separately?


---
I use Linux. So sue me.

[ Reply to This | # ]

URLs Here
Authored by: Anonymous on Saturday, March 27 2004 @ 01:41 PM EST

lamlaw.com pointed me to this Enquirer article regarding the number of American official complaining about the EU fine against Microsoft and how many of them received campaign contributions from Microsoft.

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: bobn on Saturday, March 27 2004 @ 01:42 PM EST
Meanwhile, the order granting IBM the stipulated time until the 26th to answer SCO's Second Amended Complaint has been signed by Judge Kimball.

But the 26th was yesterday. So what does this mean now?

[ Reply to This | # ]

SCO Stock and Bifurcate Decision
Authored by: Anonymous on Saturday, March 27 2004 @ 01:46 PM EST

They have a lot riding on their little gamble.

I suspect overall they need a decision on one
of the main issues to soothe their investors
minds. It will be one of the issues they are
quite certain they feel that they have firm
ground.

Must be getting costly to continue their suit
with all the "under-tabled" funding being
eye-balled by everyone and still trying to
tackle an unbackable, unsupportable case against
IBM, et al.

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: HamonEggs on Saturday, March 27 2004 @ 02:01 PM EST
I think they want to seperate the IBM/AIX and Sequent/
Dynix infringements/contract violations. Maybe there is
something in the contract language that makes one case
stronger than the other.

[ Reply to This | # ]

JOKE: That's fork in Unix speak!
Authored by: John on Saturday, March 27 2004 @ 02:03 PM EST
Bifurcate means the same as fork in Unix. So next I expect to see an IP claim by
SCO, against the court (Judge Kimball look out, they'll sue you!) for copyright
violation against what is clearly a copy of the fork process in Unix.

Darl: "There are millions of lines of code that belong to us in the US
legal system..." :^)



---
JJJ

[ Reply to This | # ]

Tiny nitpick
Authored by: Captain on Saturday, March 27 2004 @ 02:08 PM EST
'explaint' should be explained or explains.

[ Reply to This | # ]

SCOG Motion to Bifurcate in IBM case.
Authored by: tintak on Saturday, March 27 2004 @ 02:15 PM EST
Whilst I think it is pointless to speculate on what they might come up with (we
will just have to wait for the documents), could somebody tell us whether IBM
has to agree to go along with SCOG's wishes. Also is it usual for a suit to be
modified so often whilst it is in progress?

---
'it is literally impossible' for SCO to itself provide
direct proof' Mark J. Heise 02/06/04

[ Reply to This | # ]

Typo here
Authored by: jbb on Saturday, March 27 2004 @ 03:07 PM EST
explaint => explained

[ Reply to This | # ]

SCO's Secret Chicken Bucket Recipes
Authored by: Anonymous on Saturday, March 27 2004 @ 03:14 PM EST
One way to bificurate the case:
"We'll put then fully in front of the Court the three buckets we have
outlined here, contract, trade secrets and copyright" -December 5th 2003

Another way to bifucrate the case:
"We turned 3 different teams of code programmers loose on the codebases of
AIX, Unix and Linux. And they came back with - independently - we had the three
teams - one was a set of high-end mathematicians, rocket scientist, modeling
type guys. Another team was based on standard programmer types. A third team
were really spiffy on agent technology and how all of this technology was built
in the first place. So the three teams came back independently and validated
that there wasn't just a little bit of code showing up inside of Linux from our
Unix intellectual property base. There was actually a mountain of code showing
up in there. Now if you look at the types of code, we really see them in three
different buckets." -July 22nd 2003

For added fun:
"Spectral recognition" and "pattern analysis"

[ Reply to This | # ]

Delay's the name of the game folks
Authored by: Anonymous on Saturday, March 27 2004 @ 03:14 PM EST
This is really just another delaying tactic. Time is all they want, and
apparently need for the pump.

Since Darl has apparently been shut up, SCO may be trying to hatch something
else to keep the pump working, like suing more SCO customers. Or they've
admitted to themselves they're gonna lose the Novell suit, and a good portion of
the IBM one, so they need something to put a positive spin on.


[ Reply to This | # ]

Quicker judgement - sort of?
Authored by: kberrien on Saturday, March 27 2004 @ 03:18 PM EST
Perhaps, for those of us who are eager for a quick judgement, and not
litigation-molassis like the RH case: if issues are split, could it not mean
that some issues at least would get resolved faster if dealt with singly/or
related?

As in the example PJ described. Perhaps some issues could be decided by the
judge, without the time delay of a trail.

Regarding IBM point of view. Perhaps they might be against this. As SCO has
muddied the waters very well, and IBM seems to want to clear linux and build it
business "fear's free" - they might want the various issues of the
case to stay combined, not split up.

Any is this not (as such motions are usually done by the defense) an indication
SCO (like we didn't know) is on the defensive. Perhaps this is how it will be
percieved.

[ Reply to This | # ]

speculation
Authored by: brenda banks on Saturday, March 27 2004 @ 03:21 PM EST
maybe this is sco asking for a seaprate answer to the GPL charge?
it is so much fun to speculate


---
br3n

irc.fdfnet.net #groklaw
"sco's proof of one million lines of code are just as believable as the
raelians proof of the cloned baby"

[ Reply to This | # ]

OT: SCOs "Corrections in the Media"
Authored by: geoff lane on Saturday, March 27 2004 @ 03:23 PM EST
If you've nothing better to do on Sunday have a look at SCOs Corrections in the Media. It sure cleared up all my doubts :-)

When you've finished you might be convinced to buy a SCO "IP" license. Strangely, the only product available from the SCO online shop.

For the bargin price of only $199, you could buy something described as "SCO IP Paid Up License - Desktop (Note: CPU Licensing is not applicable to Desktop systems)".

Now, I may be dumb but what exactly have you just bought? Will one receive a nice coloured certificate in the style of an old rail road share certificate? If, no when, SCO snuffs it will they have resell value? ;-).

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: Anonymous on Saturday, March 27 2004 @ 03:32 PM EST
So is this what the splattered remains of SCO will look like after the court case..?

-Cyp

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: Anonymous on Saturday, March 27 2004 @ 03:33 PM EST
Maybe they want to split off all of IBM's counterclaims to a separate lawsuit?
Would there be any advantage for SCO or disadvantage for IBM if that were to
happen?

[ Reply to This | # ]

Isn't it about time ...
Authored by: Jude on Saturday, March 27 2004 @ 03:34 PM EST
... that Judge Kimball ran out of patience with SCO?

SCO filed suit about a year ago, and they have yet to show evidence of IBM's
alleged wrongdoing. They're on at least the third court-imposed deadline to do
so, having failed to obey the earlier orders.

SCO has amended their complain twice, and now they're trying to change the
structure of the case again.

At what point does Judge Kimball say "Enough, already!"?

[ Reply to This | # ]

SCO scam gets better
Authored by: Anonymous on Saturday, March 27 2004 @ 03:49 PM EST
You know that US$699 you paid for the SCO IP license? Well they may not have
mentioned at the time that there's an annual renewal of US$149 to keep it
current. I wonder if Computer Associates noticed they now have an obligation to
pay annual fees for the licenses that got slid into their settlement?

Take a look at the "buy" link above.

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: simonbrooks on Saturday, March 27 2004 @ 04:14 PM EST
Sorry but I read the heading and all I could think of was
"not on the courtroom carpet please" but then again it's
in line with the rest of SCO's case! ;-)

Sorry!

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: minkwe on Saturday, March 27 2004 @ 04:23 PM EST
They probably want to separate out IBM's counter claims

---
Just my 0.02€ contribution to the floccinaucinihilipilification of SCO.

[ Reply to This | # ]

An unfortunate inference?
Authored by: Cassandra on Saturday, March 27 2004 @ 05:00 PM EST

I got an email from one of the attorneys who explain this case to me behind the scenes.

PJ, this comment could be spun to make you appear to be a sock-puppet of some description. I think that would be a Bad Thing, so could you elaborate a bit please?

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: Retep Vosnul on Saturday, March 27 2004 @ 05:45 PM EST
I see this a a plot to get back at groklaw and PJ.
Ofcource Darl and co know that all there claims are nothing more then the last
quircks of a dead company but when they split them up they THINK they could
overwhelm PJ with a overdose of motions comming from all sides and silly old
lawyer jargon not heard since the 1930's.

and ofcource again they will FAIL.

[ Reply to This | # ]

When is the judge going to kick SCO's backside?
Authored by: Anonymous on Saturday, March 27 2004 @ 06:22 PM EST
IANAL but....

SCO firstly drop their "trade secret" claims.
Now they want to separate their case.
Plus they have delayed providing evidence on numerous occasions.

The plaintiffs clearly have no idea what they are doing.

I think the judge should issue a "comtempt of court" to the
plaintiffs, as clearly their story is continously changing and they seem to be
deliberately wasting the court's time.

OT: How long will it take the judge in the Novell case to decide if its
dismissed? 1 week? 2 weeks?

[ Reply to This | # ]

Personally, I most want to see the files with lines of code
Authored by: Anonymous on Saturday, March 27 2004 @ 07:10 PM EST
I trust that the US legal system has taken measure of the SCOG. I expect
the US courts to mete out justice on their own timelines. Done, or is it?

Many techies want to see the specific files and lines of code that the SCOG
presents during discovery. The future of the American software community
is threatened by the M$ and SCOG combined assault. We need to know
more!

If this motion means that the SCOG will not show the evidence, the global
IT economy of the free world could be crippled for many years. This could
be the start of a new dark ages where IT progress is illegal and viruses
terrorize its citizens. There is a fork in the world timeline; consider the
Back
To The Future episodes.

[ Reply to This | # ]

Bifurcate?
Authored by: Anonymous on Saturday, March 27 2004 @ 08:42 PM EST
SCO wants the judge to bifurcate? Boy, that takes a lot of nerve. I once asked a
girl if she wanted to bifurcate, and she slapped me and walked away.

Well, maybe the word has a different meaning in Utah.

[ Reply to This | # ]

  • Bifurcate? - Authored by: DBLR on Sunday, March 28 2004 @ 03:42 AM EST
Doesless, Dolittle and Delay
Authored by: RedBarchetta on Saturday, March 27 2004 @ 08:43 PM EST
One good reason SCO has pursued the Motion to Bifurcate avenue is because the
attorneys they hired recommended it. Who would ever think that McDarl would be
clever enough to suggest this to the attorneys himself? He's no lawyer!

Like one post mentioned earlier, all the attorneys working for SCO are not
necessarily clueless; they are working with the hand that was dealt to them.

But what's wrong with a little delay? How do you think the law firm Doesless,
Dolittle and Delay made enough money for that 10-story tower downtown?

[ Reply to This | # ]

Does this mean...
Authored by: Anonymous on Saturday, March 27 2004 @ 08:59 PM EST

... that SCO will be using the same Wookie for both cases? Or will they be introducing a second Wookie?

[ Reply to This | # ]

SCO Motion to Bifurcate in IBM case.
Authored by: RSC on Saturday, March 27 2004 @ 09:04 PM EST
I wonder if the absence of Judge Wells indicates that Judge Kimballs' case load
is going to lighten when his grants Novells motion to dismiss, thus freeing up
his time to focus no the IBM white wash of SCO. ;)


RSC.



---
----
An Australian who IS interested.

[ Reply to This | # ]

The Dance Steps of the Jester?
Authored by: moogy on Saturday, March 27 2004 @ 09:17 PM EST
In the past, Judge Well's has indicated that SCOG has not
yet even clearly stated what their case is all about,
and Kevin responds: "It's a very very complex case your
honor!" [paraphrase]

IBM has pointed out that SCOG appears to have abandoned
the trade secrets portion of their case due to not
submitting any evidence for a basis.

Yet, they want to split apart that which they have not yet
cleary defined?

Let's see... we split this up, and give only one small
part for Boies & Co. to work on and then let cheap Kevin
stumble along the best he can to drag out the rest.

---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi

[ Reply to This | # ]

    SCO Motion : staying local getting a jury
    Authored by: borneo on Saturday, March 27 2004 @ 09:46 PM EST
    As we know they wants to stay local, but matters on copyrights are not : motion
    to bifurcate.
    Second they wants a Jury. They have no others ways to get some points on an
    hopeless case.

    Ianal, but the competent people in Groklaw will tell you what kind of
    bifurcation will fit.

    [ Reply to This | # ]

    OT: SCO Stock prices
    Authored by: Anonymous on Saturday, March 27 2004 @ 09:47 PM EST
    Forgive the off topic post, but I noticed that SCOX has been below the $9.50
    limit for 9 days now. I don't recall the particular contract that dealt with
    the SCOX stock values being purchased at 16.00 after 10 days below 9.50.



    [ Reply to This | # ]

    IBM Subpoena
    Authored by: pbarritt on Saturday, March 27 2004 @ 09:55 PM EST
    This subpoena has just got to be for the MIT rocket
    scientists to bring their spectral analysis for all
    to see and marvel upon. IBM asked for this in discovery
    and SCOG said they didn't have to provide it because
    they weren't going to use it as evidence in the trial.
    But it sure makes good evidence for IBMs counter claims.

    ---
    "Who are you going to believe, me or your own two eyes?" - Groucho Marx

    [ Reply to This | # ]

    SCO Motion to Bifurcate in IBM case.
    Authored by: Jude on Saturday, March 27 2004 @ 09:57 PM EST
    Perhaps SCO wants to split off the Lanham Act claims of IBM's countersuit, which
    I believe involves SCO's public claims that copyrighted Unix code was copied
    into Linux. This might allow SCO to ask for a delay until they get the matter
    with Novell sorted out, and that in turn might get them off the hook for
    identifying the infringing code by mid-April.

    [ Reply to This | # ]

    OT: question re: Novell case
    Authored by: Anonymous on Saturday, March 27 2004 @ 10:17 PM EST
    Question: what happens next in the Novell case. Does SCO get to reply to
    Novell's reply memorandum? Or is the next step the judge making a ruling?

    [ Reply to This | # ]

    SCO Motion to Bifurcate in IBM case.
    Authored by: blacklight on Saturday, March 27 2004 @ 10:29 PM EST
    "119 - Acceptance of service of Subpoena Duces Tecum as to IBM 3/25/04
    120 - Motion by SCO Grp to bifurcate
    121 - Memorandum by SCO Group in support of [120-1] motion to bifurcate
    122 - Notice of service of Subpoenas Duces Tecum by IBM Inc "

    I am not going to bother to speculate about the SCO Group's motion to bifurcate.
    I'll be looking for a link between IBM's Subpoena Duces Tecum and the SCO
    Group's motion to bifurcate when both documents are available on groklaw.

    [ Reply to This | # ]

    SCO Motion to Bifurcate in IBM case.
    Authored by: Nick Bridge on Sunday, March 28 2004 @ 01:35 AM EST
    Could it be that SCO Group actually want a dismissal on part of the case?

    They definitely do not want a decision based on the facts here, since they will
    have no chance in the future.

    A decision based solely on law (such as a dismissal) could allow them another
    avenue for suing, could it not?

    IBM has requested SCO Group answer as to whether their list of lines of Linux
    code is exhaustive. In effect to state that there are no other lines in
    question. SCO obviously does not wish to answer this.

    I bet this is a way to skip this question for the future, and also to avoid any
    claim of frivolity.

    If SCO were to answer "yep! them's it! that's all folks" they would be
    sunk. The question of whether the contract was breached would be decided, as
    would the question of whether any of the mentioned lines of code were
    infringing. That would be the end.

    If SCO were to answer "Nope, we got's more. We are still compiling the
    list..." they would open themselves to a big question of wether they were
    actually acting in good faith. This may be in question to some of us now, but
    when this comes to a head, and SCO have turned up no more "evidenciary
    support" after claiming there was more, they would not only have digged
    themselves a deep hole, they would have engraved a tombstone and written a
    touching eulogy.

    They are looking for an exit sign - and I really hope they find none.

    [ Reply to This | # ]

    spell checker
    Authored by: Anonymous on Sunday, March 28 2004 @ 01:45 AM EST
    I guess I'm just old school.
    I've got an alias in my .bashrc file

    cspell ()
    {
    echo "$@" | aspell -a
    }

    So I can just $ cspell words to be checked
    on my command line, and get the answer right there.

    [ Reply to This | # ]

    SCO bifurcates itself?
    Authored by: Anonymous on Sunday, March 28 2004 @ 02:16 AM EST
    I posted my initial speculation to the Yahoo board, and have been thinking about
    it since then.

    It would seem very hard to get the judge to agree to split this case. There are
    no obvious places to cleave the case into two pieces -- there is but one
    plaintiff and but one defendant, and the various causes of action all would
    spring from similar reasoning and argument.

    But, perhaps that is no longer true. It's conceivable that The SCO Group sold,
    say, its Unix licensing business to some other Canopy company for $10M
    yesterday. This would mean that the causes of action that relate to the
    licensing of Unix to IBM really should be tried by that other company, not The
    SCO Group.

    This would also nicely explain the run-up in price yesterday, assuming that the
    word of the sale was leaked. I know, you would be shocked, !shocked! to see
    that there was insider trading going on here!

    Now, it's true that there are various clauses in the S/3A related to the
    BayStar/RBC deal that would make it difficult for SCO to sell off some of its
    assets -- but it's not too hard to believe that BayStar/RBC are willing
    participants in this charade and will not exercise their right to block it.

    SCO might even argue that the new owner of the licensing rights would make
    different, contradictory arguments to the ones that SCO is making -- almost
    requiring that the cases be bifurcated.

    Monday will reveal some of the answers.

    Thad Beier

    [ Reply to This | # ]

    Can't wait for IBM's response
    Authored by: Anonymous on Sunday, March 28 2004 @ 06:12 AM EST
    It is like the Novell and IBM legal teams are engaged in some kind of
    competition to see who can stick the knife into SCO the deepest and twist it
    most artistically. Each new filing is better than the last.

    [ Reply to This | # ]

    FUD with a side order of delay with added FUD.
    Authored by: bruce_s on Sunday, March 28 2004 @ 06:28 AM EST
    I think I've worked it out, by getting the Bifurcation
    order they would be able to say they have "won" an issue
    in the courts (Rember the "coin toss" (Groklaw passim.)),
    which would allow them to increase the FUD. Nevermind
    increasing the probabilities that they may be able to win
    a case (yes, I KNOW it is highly unlikely).
    It also means that extra delay would be incurred for more
    discovery and general legal processes, which also
    increases the FUD.
    I have the SCOX Yahoo! group open at the moment, and from
    the message titles, a suggestion they are maybe using the
    bifurcation for a part settlement, but we all know how
    they would spin that.

    Bruce S.

    [ Reply to This | # ]

    Could SCO be declared a vexacious Litigant?
    Authored by: Anonymous on Sunday, March 28 2004 @ 11:26 PM EST
    Q. What is a vexatious litigant?

    A. Under Code of Civil Procedure section 391(b), a vexatious litigant means a
    person who does any of the following:

    (1) In the immediately preceding seven-year period has commenced, prosecuted, or
    maintained in propria persona at least five litigations other than in a small
    claims court that have been (i) finally determined adversely to the person or
    (ii) unjustifiably permitted to remain pending at least two years without having
    been brought to trial or hearing.
    (2) After a litigation has been finally determined against the person,
    repeatedly relitigates or attempts to relitigate, in propria persona, either (i)
    the validity of the determination against the same defendant or defendants as to
    whom the litigation was finally determined or (ii) the cause of action, claim,
    controversy, or any of the issues of fact or law, determined or concluded by the
    final determination against the same defendant or defendants as to whom the
    litigation was finally determined.
    (3) In any litigation while acting in propria persona, repeatedly files
    unmeritorious motions, pleadings, or other papers, conducts unnecessary
    discovery, or engages in other tactics that are frivolous or solely intended to
    cause unnecessary delay.
    (4) Has previously been declared to be a vexatious litigant by any state or
    federal court of record in any action or proceeding based upon the same or
    substantially similar facts, transaction, or occurrence.

    [ Reply to This | # ]

    The motion is IN
    Authored by: MathFox on Monday, March 29 2004 @ 12:31 PM EST
    The motion to bifurcate is available from the Court:
    http://www.utd.uscourts.gov/reports/ibm/00000120.tif memorandum
    http://www.utd.uscourts.gov/reports/ibm/00000121.tif
    SCO wants to separate IBM's patent claims from the main course.

    ---
    When people start to comment on the form of the message, it is a sign that they
    have problems to accept the truth of the message.

    [ Reply to This | # ]

    Ah Ha.
    Authored by: anesq on Monday, March 29 2004 @ 01:48 PM EST
    Now that we've got the motion, I have to say this makes a lot of sense. I'd say
    it's a neutral move from IBM's perspective, except to the extent IBM would be
    able to make an impression on the jury that SCO's hands are not clean.

    What SCO is saying here is that the IBM patent claims are not related to the SCO
    contract/copyright claims, and because they are so different in scope, the two
    matters should be heard seperately.

    Outside of the SCO arena, I tend to favor a bifurcation of this tpe, in that
    patent issues by themselves are so complicated they can overwhelm a jury. If
    you put yourself into the shoes of the jury, one tends to think such a
    bifurcation makes sense (would you want to be in a jury box for the amount of
    time it takes to explain the history of Unix and Linux, or the history of Unix
    and Linux plus the history of 4 patents that aren't directly related to either
    Linux or each other? - we're talking about doubling (at least) the time for a
    trial).

    IBM may not even contest the bifurcation; they've made their point that if they
    are sued by someone, they will go back and search their back catalog of patents
    and bring a world of hurt.

    [ Reply to This | # ]

    • Ah Ha. - Authored by: Anonymous on Monday, March 29 2004 @ 08:27 PM EST
    Damages and bankruptcy?
    Authored by: Christian on Monday, March 29 2004 @ 02:58 PM EST
    It seems likely that SCOG will be forced into bankruptcy if any significant damages are assessed against them. IBM will not have to win both of the counterclaim cases, because if they win one SCOG may cease to exist before the other trial concludes.

    So one thing the bifurcation achieves is to reduce the size of damages awarded at any one time. Does this increase the amount other creditors would receive from the liquidation of SCOG? Does someone understand how assets would be dispersed in such a case?

    [ Reply to This | # ]

    SCO Motion to Bifurcate in IBM case.
    Authored by: Anonymous on Monday, March 29 2004 @ 05:33 PM EST
    This strikes me as a VERY odd strategy even for SCOX. I was not even aware that
    to FRCP allowed bifurcation (as to claims) of a trial in a case involving a
    single plaintiff and a single defendant. I've filed several motions to
    bifurcate as to parties, but never as to claims.

    [ Reply to This | # ]

    SCO Motion to Bifurcate in IBM case.
    Authored by: Anonymous on Monday, March 29 2004 @ 06:04 PM EST
    SCO's memorandum in support is nov up on Pacer. It's IBM's patent counterclaims
    they want to lift out...

    [ Reply to This | # ]

    SCO says GPL==public domain
    Authored by: mobrien_12 on Monday, March 29 2004 @ 07:32 PM EST
    SCO has made public statements that the GPL is unconstitutional. That in itself
    is a wild stretch but they then have gone on to say that that means that
    anything which was GPL'd is actually public domain, so they can continue to
    distribute Linux.

    And since SCO's magic "IP" is in supposedly in Linux, and it's too
    difficult to take out (acc to Darl) they are (according to SCO mentality) the
    only ones who can distribute Linux (lest someone pay them for their "we
    promise not to sue you" licence).


    [ Reply to This | # ]

    DiDio bifurcates
    Authored by: lordmhoram on Tuesday, March 30 2004 @ 09:43 AM EST
    Just found this at

    http://www.techworld.com/opsys/news/index.cfm?NewsID=1285&Page=1&pagePos
    =16

    Contains the following (almost completely incomprehensible) burble by Laura
    DiDio:

    "After researching IT managers and executives globally, analyst and author
    Laura DiDio is reported as saying that, "Corporate customers report Linux
    does indeed provide businesses with excellent performance, reliability, ease of
    use and security." However, "hype notwithstanding, Linux's technical
    merits while first-rate, are equivalent but not superior to Unix and Windows
    Server 2003," says DiDio.
    She continues, "there's a clear bifurcation between the high and low ends
    of the market - everyone has a Linux strategy...even if it is just to use Linux
    as a stone to throw at Microsoft."

    Hey, there's that word again!! What a coincidence! Wonder if she read it
    somewhere??

    [ Reply to This | # ]

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