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SCO's Motion to Bifurcate and Memorandum in Support
Monday, March 29 2004 @ 07:35 PM EST

Just up: SCO's motion to bifurcate. And the the Memorandum in Support is here. I haven't read them yet myself, so let's do it together. They are asking that the patent counterclaims be bifurcated so as to avoid prejudice and delay. Like ... the jury might get it that they can't talk about the holiness of IP and how vital it is to respect it, while simultaneously standing accused of violating IBM's patents? I gather they expect IBM to win its patent counterclaims.


  


SCO's Motion to Bifurcate and Memorandum in Support | 222 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Bifurcation and Discovery
Authored by: jdg on Monday, March 29 2004 @ 07:45 PM EST
What is the relative "ranking" of motions and discovery? Will the
order to produce specified documents by April 17 still hold, or is this a
delaying action on the subset of items listed for the specific components of the
counterclaim?

---
SCO is trying to appropriate the "commons"; don't let them

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: TimMann on Monday, March 29 2004 @ 07:47 PM EST
An industrious user (not me) has already converted these to text in a thread on the previous article. See here.

[ Reply to This | # ]

Corrections here
Authored by: Anonymous on Monday, March 29 2004 @ 07:49 PM EST

Staring with: word 'the' repeated in the second sentence.

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: Anonymous on Monday, March 29 2004 @ 07:52 PM EST
I believe SCO would be successful in defending against the patent claims if it
were really worth a vigorous defense. It doesn't seem worth it, as a
comprehensive defense would run into the millions, and a loss with a cheap
defense might cost a few bucks per SCO license, which would add up to something
like 26 dollars and 12 cents per year.

[ Reply to This | # ]

An interesting concession
Authored by: rgmoore on Monday, March 29 2004 @ 07:54 PM EST

A key quote:

Based on these facts, a central issue in this case is whether IBM's disclosure of AIX and Dynix/ptx through its involvement in Linux violated the licensing agreement.

They danced around the point quite a bit in the past, but now they're finally saying it openly: this is really about contracts, not copyright. They haven't gone so far as to admit that this is the absolute central issue in the case, and that their whole argument will fall apart if IBM's contributions are not in violation, but they're at least admitting that it's a significant point in dispute.

---
Behind every sleazy lawyer, there's a sleazy client.

[ Reply to This | # ]

IBM's and SCO's IP claims
Authored by: Anonymous on Monday, March 29 2004 @ 07:58 PM EST
The patents IBM has in areas where SCO does business would show a jury how
absurd SCO's claiming that IBM needed SCO's IP to enter the Unix on Intel
business. Can SCO argue that the patents would confuse the jury? Or should IBM
introduce more patents, like those for NUMA?

[ Reply to This | # ]

Off Topic: Hardware should be free
Authored by: Anonymous on Monday, March 29 2004 @ 08:02 PM EST
Interesting that Bill gates thinks it's the hardware that should be free, not the software.

http://story.news.yahoo.com/news?tmpl=story&cid=581&ncid=5 81&e=1&u=/nm/20040329/tc_nm/tech_microsoft_gates_dc

[ Reply to This | # ]

A better tone to the motion?
Authored by: Anonymous on Monday, March 29 2004 @ 08:05 PM EST
Is it just me, or is this motion less full of wild, unsubstantiated claims than
previous SCO motions have been?

Is it possible that SCO realizes that their previous approach hasn't worked, but
rather has annoyed the judges and provided lots of convenient targets for IBM to
shoot full of holes?

Does this mean that the trial as entertainment is over?

MSS

[ Reply to This | # ]

Cash burn
Authored by: anwaya on Monday, March 29 2004 @ 08:12 PM EST
If I remember correctly, this bifurcation would put that half of IBM v SCO well
outside the fee agreement with BSF, and so SCO's legal fee burn rate will
increase.

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: vonbrand on Monday, March 29 2004 @ 08:18 PM EST

After skimming the text, it looks (to my totally untrained eyes!) much better done than the writ Novell demolished, as our PJ so nicely showed.

I'd love to see a similar comment on this... (I know, I know, PJ's days have only so many hours, and doing in-depth analysis is hard work. But one can dream...)

Yet again, many thanks PJ and all!

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: Anonymous on Monday, March 29 2004 @ 08:20 PM EST
I've said it before in the other article about the motion to bifurcate, but I'm
arrogant enough to feel that it should be mentioned again.

SCO's original complaint and their first amended complaint centered on trade
secret issues. In that context, IBM's patent counterclaims are perfectly
appropriate.

SCO amended their claims, dropping or at least de-emphasizing the trade secret
issues. Now in this motion, they are saying "The case is not about
intellectual property, it's about contracts!" and hoping to amend IBM's
counterclaim -- or at least push consideration of that aspect of the
counterclaim out beyond SCO's bankruptcy.

It will be interesting to see how IBM responds. If they protest the
bifurcation, I'm sure that the language will be delicious.

Thad Beier

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: brendthess on Monday, March 29 2004 @ 08:28 PM EST
I have been looking at this since the info showed up on the Yahoo SCOX board, and it looks to this NAL that the basic claims are valid.
  • The patent claims are not directly tied to the current lawsuit.
  • There is a lot of precedent for splitting out patent claims
  • Patent litigation is not like contract litigation
  • The necessities of a Patent infringement trial could delay the Contract infringement trial
Hmmm... it looks as if SCO's lawyers may actually have found their coffee pot finally.

---
I am not even vaguely trained as a lawyer. Why are you listening to me?

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: jmichel on Monday, March 29 2004 @ 08:39 PM EST
"IBM has interposed four unrelated patent counterclaims into this case.
The discrete issues arising from the breach of license agreements should not be
tried before a jury together with IBM's unrelated patent infringement
counterclaims where the only common thread between the licensing agreements
claims and the patent counterclaims is the identity of the parties."

So we have a company that has sued another company whose only common thread
between them was Linux. Yet SCO wants you to believe they were bamboozled in to
starting this suit and that the jury should only hear what they want them to
hear.

Great. Don't know if the Judge will decide that there is enough for the patents
to be tried separately, but I hope they don't.

\IANAL.h\

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: Anonymous on Monday, March 29 2004 @ 08:41 PM EST
One rather glaring defect in these papers of SCO's is that they are
characterizing as fact their assertion that IBM has contributed code illegally
to Linux, and supposedly that was one of the key premises of the suit. Or did I
misread something there?

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: Anonymous on Monday, March 29 2004 @ 08:43 PM EST
"If the claims remain combined in one trial, to prepare for the defense of
the patent counterclaims, the trial of all claims would have to be deferred at
least 18 months from the the current trial setting ..."

Alot can happen in 18 months SCOG could run low on money, SEC investigation or
SCOG may be forced to realize that they have no copyrights in Unix SysV to
defend. That 18 month period will be the time frame that SCOG will be completely
raided by Canopy, management and major investors of any assets SCOG may still
retain.

_[=================]_
---~~~~~~~~~~~~~~~---
from under the bridge

I realize I'm only the hired help here but I don't do Windows.

vegas t

[ Reply to This | # ]

Assume They Bifurcate
Authored by: math geezer on Monday, March 29 2004 @ 08:43 PM EST
Assume they bifurcate the cases, what are the possibilities?
Well, one very obvious one is that the case with all the discovery demanded by
IBM is plead out and not contested. I doubt that IBM would think that whatever
penalty was imposed upon SCOG would be acceptable, unless it included the
results expected in the discovery request.
SCOG could easily afford a fine of $20 millions or so, if they could avoid the
onerous and embarassing results of discovery - having to list all of the
(imaginary) infringing code.
As soon as they are free from having to list the code, they have won and the FUD
can continue, they also avoid the suits from Baystar and RBC for fraud with this
scenario.
Additionally, this scenario allows the (bogus) IP licensing program to
continue.
The only allowable bifurcation should be when they are drawn and quartered. ;(

[ Reply to This | # ]

OT - "Controlled flight into terrain"*
Authored by: Anonymous on Monday, March 29 2004 @ 08:56 PM EST
*(Coined by a poster on the SCOX message board on Yahoo)

Take the three month graph for SCOX and make it linear rather than log. Draw a
line through the low points of the curve. The low points on the curve fit this
straight line exceptionally well. To me it looks like someone is managing the
stock's slow descent to valuelessness rather skillfully. (Five bucks twenty days
from now, zero in sixty days.)

My questions:

1 - Is this as suspect as I think it is, or is this a normal pattern for a stock
on its way out?

2 - Could the major stockholders actually make money by orchestrating a pattern
like this?

3 - Is it possible to trace the transactions and identify the
"painters" who are being accused of doing the manipulation and any
financing behind them?

4 - Are people likely to go to jail?

[ Reply to This | # ]

Trying to get their main case back to state court?
Authored by: Tomas on Monday, March 29 2004 @ 09:01 PM EST
IANAL

It appears to my mind that this may be SCO trying a two step movement in an
effort to get the SCO v IBM case back to a Utah state court, and out of the
federal courts.

Follow me through on this, OK?

1) Get IBM's patent counterclaims separated from the rest, and then

2) Move that the proper place for the SCO v IBM case is state court rather than
federal since it is merely a simple 'contract case.'

Mind you I'm not saying this makes any sense, but it seems to fit with the SCO
view of the world ("The World According to Darl" good book/movie
title, eh?).

(The little bit of copyright stuff they've left in SCO v IBM does not appear to
be a federal question of 'who owns what' but possibly misuse according to a
contract ... )

Now, *IF* this is a move by SCO to get the SCO v IBM back to state court, how
would that affect things?

---
Tom
en.gin.eer en-ji-nir n 1: a mechanism for converting caffeine into designs.

[ Reply to This | # ]

Seems Pretty Reasonable
Authored by: dmscvc123 on Monday, March 29 2004 @ 09:02 PM EST
SCO's filing seemed pretty reasonable and about the only issue I saw with it was
this:
"To assist in juror comprehension and reduce both prejudice and delay IBM's
four patent counterclaims should be tried separately and SHOULD PROCEED ON A
SEPARATE DISCOVERY SCHEDULE."
Other than feeling this is meant to draw out SCO having to turn over (already
much delayed) discovery, I actually thought this was a pretty good filing by
SCO.

However, I've got to wonder if it's too late to bring this motion - can a party
wait this long and expect to have much of a chance of getting the case
bifurcated if the other party doesn't agree? This filing afterall seems like it
could have been done months and months ago and there's no particular benefit but
much harm doing it at this late an hour into the trial.

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: math geezer on Monday, March 29 2004 @ 09:21 PM EST
The Memorandum in Support is bogus in the very first sentence, it doesn't
mention the "$echo" article, nor the letter of clarification that IBM,
and others, have. I would conjecture that even SCOG have the letter from
AT&T that clarifies the disposition on derived works free of AT&T code.
To take the first sentence at face value would be to assume that those issues
would take almost no time to argue and dispose of in court. It would be as a
piece of cake to them!
Are there really only 80 depositions in the part of the case not dealing with
patents? What about the hordes of IBM programmers, corporate heads, third
parties that SCOG demanded information on? Information like who, what, where,
when and how- all dealing with Linux development at IBM? They were presuming to
contact and depose all of these individuals? And not use it in court?
I can only assume from the calculation of the time span to complete arguments in
the (bifurcated) case involving non-patent claims that they do not expect to
contest things very much there, ie. where do their claims to code in Linux show
up?
I've got to stop now and check my blood pressure. ;)

[ Reply to This | # ]

SCO itself mishandled the patent defense
Authored by: Anonymous on Monday, March 29 2004 @ 09:29 PM EST

I actually think this is a pretty reasonable motion. No doubt this has come up many times before, so we'll see how IBM handles it.

I wanted to point out that contrary to SCO's contention that IBM has been uncooperative, the reason SCO is so far behind is because SCO did not take its defense of the counterclaims seriously for months and months. Here is the end of March 2004 and they are only starting and say they will need 18 extra months. They had trouble getting a lawyer qualified to handle their defense.

I'm relying on this summary from the Yahoo! board in December.

From the beginning, SCO fumbled its response when it issued PR criticising IBM's "flawed Linux business model" and wrote "SCO has shipped these products for many years, in some cases for nearly two decades, and this is the first time that IBM has ever raised an issue about patent infringement in these products. Furthermore, these claims were not raised in IBM's original answer."

http://ir.sco.com/ReleaseDetail.cfm?ReleaseID=115725

Even more amazing, after the August notice of IBM's patent claims, SCO in October had apparently still not even bothered to look up the patents in publicly accessible databases:

SCO spokesman Blake Stowell said Tuesday that he understood the extension is being sought "for the purpose of gaining documents from IBM related to the patents they claim. . . . Some of the patents aren't even filed with the U.S. Patent Office, as far as we can learn."-- Blake Stowell, 2003-10-01

http://www.sltrib.com/2003/Oct/10012003/business/97397.asp

On e legal observer criticised SCO's patent defense.

"Arguing that (a patent) covers too many people isn't an effective defense," he said.-- David Byer, 2003-10-27

Then at the end of November, SCO admits in a court filing to delay proceedings that it is still trying to line up legal counsel that can handle patent matters.

Second, two of those and several other affirmative defenses related to "patent" issues arising from IBM's counterclaims. Because the patent issues raised by IBM present separate and unique factual and legal issues, SCO had retained separate patent counsel for those matters. After this other firm chosen for the handling of patent issues was involved in the case, an issue arose as to whether a conflict existed based on that firm's prior or continuing representation of IBM in other matters. Upon learning of this potential conflict, the firm discontinued all work for SCO regarding this case and attempted to obtain a waiver from IBM. To date, IBM has refused to do so, although efforts to do so continue. It is expected that by December 1, the conflict will be waived or SCO will obtain other patent counsel.

http://www.groklaw.net/article.php?story=20031201203511206

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: craw on Monday, March 29 2004 @ 09:40 PM EST
IBM's patent claim is a relatively small part of their counterclaims against
TSG. If you have been following all of this, TSG response to IBM on this point
has been extremely detailed compared to their other responses. I always thought
this to be rather strange as considerable amount of effort had to made to make
such a detailed response.

This potential means two things. First, TSG is spending too much money on legal
fees to refute this "minor" point that one might consider to be a side
issue that actually will confuse a jury. They do may one good point in that
clarifying a patent dispute would take considerable time and effort.

Secondly, why did TSG crack legal team spend so much time and effort to refute
the patent claims? It would interesting to determine whether or not this crack
legal team has expertise and experience in dealing with patent claims. Perhaps
they know that they are in trouble with this issue, or they might realize how
much time and effort will be required to handle this point (my first point).

Personally at this time, I think that someone at TSG realized that their crack
legal team was spending way too much effort on this one point. If IBM considered
this to be a serious legal weapon, then this would not have been a small part of
their counterclaims. The IBM legal team would have further elaborated on this
issue and the implications for this case.

[ Reply to This | # ]

SCOG wants to re-argue discovery
Authored by: PeteS on Monday, March 29 2004 @ 09:44 PM EST
Bear with me.

SCOG has not met their requirements of discovery, and have been ordered to do so
by Judge Wells. Because they *know* they can not produce any meaningful
discovery (in terms of supporting their case), their case is on the rocks
**unless they can re-argue the items in discovery**, thus delaying the case.

Note this:
"To assist in juror comprehension and reduce both prejudice and delay IBM's
four patent counterclaims should be tried separately and SHOULD PROCEED ON A
SEPARATE DISCOVERY SCHEDULE."

My view here is that SCOG is trying desperately to extend the case as long as
possible, and once discovery is done with, they are toast and they know it. The
only reasonable way for them to extend the case is to re-argue discovery and the
materials relevant to discovery. Bifurcating gives them that opportunity.



---
Today's subliminal thought is:

[ Reply to This | # ]

Bifurcation?
Authored by: Anonymous on Monday, March 29 2004 @ 09:48 PM EST
I thought bifurcation is how amoebas reproduce. Sounds like something for a bio
lab, not a courtroom.

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: Anonymous on Monday, March 29 2004 @ 09:48 PM EST
I wonder if IBM can argue that the patent counter-claims *do* apply because of their relationship to SCO's distribution of UNIXWare and SCOServer. Since SCO claims a breach of contract, IBM counter-claims a breach of patent. The underlying software base is the same: SCO's UNIX offerings.

It's weak, but so is SCO's "bait-and-switch". IBM granted SCO's amended claim, so it might have some leeway to move for connectedness here.

Also, SCO admits in it's Memorandum in Support that "[t]hese claims and defenses invoke both common law and statutory rights; they sound in contract, tort, copyright, unfair competition, and false advertising[...]". To argue that there are no IP issues left in the case denies SCO's own claim in the same Memorandum.

However, I have to admit that on the face of it, this is a higher-quality document than a lot of the previous attempts. However, it's still got poor organization. Better outlining might have helped drive home their points, but instead the document kind of rambles on...

I wouldn't doubt that SCO wants to get the trial out of this court - which has been polite but skeptical - and back into state court. SCO's admission that there are still copyright defenses won't help them there, though.

--Les Barstow

[ Reply to This | # ]

IP/copyright & contract Inextricably linked
Authored by: Anonymous on Monday, March 29 2004 @ 09:51 PM EST
It is fairly clear from even a cursory reading of the original suit that the IP
or copyright (which ever SCO chooses to correctly or incorrectly apply) claims
are inextricably linked to the contract claim. That is, they make claim that IBM
violated certain contracts by misappropriating/misusing IP. The whole case while
centering on a contract relationship can not be resolved without the
copyright/IP issue being at least clarified. It is in fact SCOs complete
misunderstanding/misinterpretation of the basic differences between IP and
copyright as well as contract and license that have led them to where they are.

Their entire case is now a shambles and while they may hope to get bifurcation
to give them a stronger hand in the contract dispute, they have already shown
that they are casting about for anything to delay the inevitable, either
outright dismissal or ruling that closes all doors except one, the exit. It is
expected that IBM will oppose this, however, they have an equally strong case
against the purely contractual approach. SCO supposedly terminated their unix
license, one which explicitly states is irrevocable and not subject to
termination. So how is it that IBM can be in breach of any contract or license?

Donít know the answer to that, but we all wait breathlessly for the next
exciting chapter in this bizarre and sad case. It is kind of like watching the
one of those incredibly stupid horror films. You know who is going to get it
next, and you know the monster will be obliterated in the end. Whatever the
result, IBMís legal team (and Novell in their own case) are making sure that
there will be no sequel. Because we all know who is really behind this and we
know they are probably working on the next Frankenstein monster now.

[ Reply to This | # ]

OT: Groklaw not just an SCO bashing site.
Authored by: ujay on Monday, March 29 2004 @ 09:54 PM EST
Well, I think with this thread we fairly well put the SCO claim of Groklaw being
an anti SCO bashing site to rest.

Many posters seem to think that the SCO lawyers did a good job on the motions,
and have given credit where credit is due.

While we may disagree on the probability of the motion being granted, well, that
rests in the hands of the court, not our opinions. Either way, the balance that
is achieved on Groklaw is quite refreshing



---
Programmer: A biological system designed to convert coffee and cheesies into
code

[ Reply to This | # ]

Delay Delay Delay
Authored by: Mike B on Monday, March 29 2004 @ 10:10 PM EST
That seems to me to be the motive.

Or else, to try to get ANY grounds for appeal.

ANYTHING they ask for tha the court denies is a possible appeal avenue. My
guess is that Canopy plans to shift the SCO IP to another subsidiary and fight
on on this basis when SCaldera becomes a... caldera.

I can't see how the IBM patent claims can be seperated from SCO's allegation.
After all, counterclaims ARE a defense...

[ Reply to This | # ]

My guess why.
Authored by: Anonymous on Monday, March 29 2004 @ 10:42 PM EST
The lawyers on this board can tell me if I'm all wet on what I posted on the
Yahoo board.

It's a ploy to protect Canopy's, er assets, from being pierced.

First IBM can't go after Canopy until they win damages against SCO, so getting a
separate more delayed trial for the countersuit buys them time.

But first in the contract dispute where they claim IBM's aid of Linux caused
them harm and caused damage and loss of potential revenue, their licensing
practices -- particularly Canopy's gaffe in arranging CA licenses as part of
settlement with another of their companies -- could become part of the court
record in the same trial.

If they split out the counter claims SCO's licensing practices re linux are not
directly at issue, hence the CA gaffe is not part of the record and going after
Canopy would be a separately contested issue.

Also explains the better legal work... the betentacled Canopians have arrived in
force!

-- TWZ (AKA ColonelZen - Best Kentucky Fried Philosopy you ever did eat!)

[ Reply to This | # ]

It's just poker folks - an SCO is looking for ways to limit the strength of IBM's hand!
Authored by: Anonymous on Monday, March 29 2004 @ 10:54 PM EST
SCO does not want a fair game - for this they need the judge's help.

In a form of poker, you can trade in the bad cards and hope that you get new
cards that are better. At least, anyway you are rid of the cards you don't want
in the game. Only SCO wants to make IBM throw away some of the good cards that
IBM has already up on the table. SCO is saying that these patent cards should
NOT COUNT!

SCO does not want a jury to see these cards sitting on the table looking the
jury square in the eyes. ON has to figure that this jury will be, in the end,
very IP educated by both sides! So SCO does not want the IBM patent cards in
the main game that they are planning to go "all in" on!

SCO is going "all in" on this case (not doubted at this point in
time).

And SCO wants to get rid of all the ugly cards in the deck that are on the
table! When IBM calls em to show all their cards- they don't want cards, that
IBM is holding to be able to count. Because in the end, we all know that even
the most lame jury can do one thing, THE JURY CAN COUNT. SCO does not want
them to count the patents, OR EVEN TO KNOW THEY EXIST.

SCO wants to limit the cards that the jury can see... to be the ones that only
help SCO. When SCO looks at this case they look right at those patents and the
damage they can do to SCO's case. Those are some of IBM's ACES. SCO does not
want IBM to be able to play ANY of those aces, and the last place that SCO does
not want them playes is in front of the jury. As everyone knows that a hand
full of good cards is stronger than a hand that does not have any good cards.

Let's hope that the judge can count - and can also deal fairly.

[ Reply to This | # ]

Might IBM agree?
Authored by: BigDave on Monday, March 29 2004 @ 10:55 PM EST
I can actually think of several reasons why IBM might agree to this, and I'm
sure that others might be able to come up with some more.

- It will remove a possible reason to appeal.

- They have a strong enough case without the patents. The patents are just there
to make sure that Caldera goes away at the end of this thing.

- The patent claims can follow the owners of the code even after Caldera is
gone.

- It WILL speed up the discovery process on this case, but only IBM's responses.
None of Caldera's responses have anything to do with the patent claims.

- It will display confidence in their case to the judge.

- It will increase Caldera's burn rate. Hey, they even suggested that they
should split it into 5 separate cases with 4 of them being patent cases. Fine,
no problem. How about another 10 Patent cases Darl?

I think the most important part is the points that they will be able to score
with the judge with their response. They can use it to point out how it was
appropriate given what Caldera was originally, yet now that they have completly
redefined the suit, we agree, that it will speed up this trial and we are still
confident that we can beat them in all cases.

[ Reply to This | # ]

Bifurcation designed to damage IBM's case
Authored by: Anonymous on Monday, March 29 2004 @ 10:59 PM EST
IMHO IBM's case is very strong regardless of whether bifurcation occurs or not.

It also seems to me that SCO has not read IBM's filing properly and/or is trying to game in bifurcation to marginally weaken IBM's case (I don't it makes any real difference, I expect IBM to win on everything or pretty much everything).

IBM's position (see quote below) is that while SCO paints themselves in one way (as in favor of IP rights and protecting IP rights), it is SCO not IBM who are infringing IP, namely IBM's copyrights and patents - See quotes below. What's more they add to this picture by saying SCO doesn't have much of any real IP at all (this is a thread running thru their amended Counterclaim, I'm not going to bother quoting them all).

Anyway, if that is IBM's case and position, it seems to me appropriate that IBM should be able to (try to) make their *entire* case, as best they can.

here are quotes I refer to:
1. These counterclaims arise from SCO's efforts wrongly to assert proprietary rights over important, widely-used technology and to impede the use of that technology by the open-source community. SCO has misused, and is misusing, its purported rights to the Unix operating system developed originally by Bell Laboratories, then a research and development arm of AT&T Corp., to threaten destruction of the competing operating systems known as AIX, Dynix and Linux, and to extract windfall profits for its unjust enrichment. 1. Admits that the UNIX operating system was originally developed by Bell Laboratories, then a development arm of AT&T Corp., but denies the remaining allegations Paragraph 1.

2. IBM's counterclaims also arise from SCO's infringement of IBM copyrights and patents. Although SCO purports to respect the intellectual property rights of others -- and has instituted litigation against IBM for alleged failures with respect to SCO's purported rights -- SCO has infringed and is infringing a number of IBM copyrights and patents.

[ Reply to This | # ]

OT - Linux has higher TC than Windows...really !
Authored by: Kai on Monday, March 29 2004 @ 11:05 PM EST
Linux more expensive than Windows
http://www.linuxworld.com.au/index.php/id;383869897;fp;2;fpid;1

...and it's probably not surprising that it's bought to you by none other than
Laura DiDio.

There should be a law against her until she can get her facts straight and until
she stops being a puppet for Microsoft.

---
Another (Western) Australian who is interested.

[ Reply to This | # ]

Taking a punt - curious observation
Authored by: Anonymous on Monday, March 29 2004 @ 11:09 PM EST
IBM have already strongly make the point in their counterclaim, starting with
points 1 and 2, but running thru it.

- that it's IBM not SCO, who has valuable IP

- that it's SCO not IBM, who is the infringer of IP (copyrights, patents)

- that SCO paint a picture of themselves as respecter IP, but they are the
infringer and disrespecter.


It seems to me that is the "big picture" view of part of IBM's case,
and bifurcation, to a small extent, would undermine it. Therefore I expect IBM
to oppose.


Now looking at the SCO motion, one startling observation is the lack of case law
citations. Yes they found case law citations saying cases can be split and
patents complicated.

They do not really come up with case law citations for splitting this type of
case.

And they even seem to be explaining basic of patent cases in their memo (does
anybody get the feeling that SCO motions read in part as if they are explaining
to themselves, like they just discovered all this stuff, "Oh that's how
patents are tried", "Oh that's how...", etc.)


IANAL, so I'm guess, but if I were to take a punt, by bets:

1. IBM oppose

2. IBM find lots of case law to support their position

3. SCO handwaves, "it's a complicated case, patents are hard".

4. The judge (eventually) denies SCO's motion.
- IBM oppose

[ Reply to This | # ]

Where are the SysV and ABI files?
Authored by: kb8rln on Monday, March 29 2004 @ 11:36 PM EST

When did SCO removed ABI files from the case?

Here is a quote from IBM-120-1.pdf

SCO and IBM have asserted various claims arising from the same nucleus of operative facts and the central issue in the case of whether IBM's disclosure of AIX and Dynix/ptx through its involvemnet in Linux Violated the licensing agreements [emphasis added] IBM entered into with sereral third parties.

Are the letters SCO send out: null and void now? If there is no SysV and no ABI interface put in by IBM it look to me that the contract does not control IBM anymore.

Did not Daryl said in the Havard's speech the if IBM put into the public domain IBM patents then SCO will do the SAME with their IP? I think Daryl knows he will loose the patent claims from IBM.

Does not SCO need to show in court SysV or ABI files to keep IBM in the breach of contract problem?

Disclaimmer: I not a lawyer and I do not play one of TV. I just want to know.

[ Reply to This | # ]

EDGAR is in, and it doesn't look pretty for SCOX
Authored by: Anonymous on Monday, March 29 2004 @ 11:57 PM EST
The numbers are in, and SCOX is dropping like a stone. Look at some of the
numbers: left column is the last quarter (ended in January), 2nd column is the
previous (ended in October).

Total Revenue 11,392 24,290
Cost of Revenue 5,650 7,363
Gross Profit 5,742 16,927

So, total revenue has dropped by OVER 50%, cost of revenue has dropped only
slightly, and the result is Gross Profit down about 2/3rds. You could burn up
in the atmosphere dropping that fast!

Operating Expenses
Research Development 2,707 2,870
Selling General and Admin 7,417 16,909

(and a few other small things). As expected, R&D is down - fewer people
working on new things. But look at the sales cost drop - no sales, no
commissions?

Operating Income or Loss (5,169) (4,161) 3,410 4,925

Four numbers on this one (columns 3 & 4 are from the previous two quarters
last year, respectively). This clearly shows that, since filing the lawsuit,
their customers are fleeing in droves. Income dropped from almost 5 million on
the plus side this quarter last year, to 5 million on the minus side this year -
a whopping 200% drop!

Income from Continuing Operations
Total Other Income/Expenses Net 3,800 2,995 (123) (123)

Again, four columns. Before the suit, "other" income was low, almost
non-existent. After, we see those "licenses" to M$ and Sun in play -
yet for nowhere near the expected levels - are their "friends" bailing
out?

Earnings Before Interest And Taxes (1,369) (1,166) 3,287 4,802
Income Before Tax (1,369) (1,166) 3,284 4,802

(left out one minor row of numbers). The damage is clearly shown again - from
almost 5 million positive a year ago, to 1.3 million negative this year - a drop
of about 125%. This is what ya reward a CEO for, oh yah!

Good news for SCO:

Income Tax Expense 128 279 188 302

Well, at least their income taxes dropped ;-) Now why were they so low a year
ago, when they made $5 million?

Net Income From Continuing Ops (1,497) (1,445) 3,096 4,500
Net Income (1,497) (1,445) 3,096 4,500
Preferred Stock And Other Adjustments (756) (123) - -
Net Income Applicable To Common Shares ($2,253) ($1,568) $3,096 $4,500

Well, that pretty well summarizes it. LOSSES, LOSSES, LOSSES. M$ better get
some money in their hands, quick - somebody's gonna get desperate!

Were I a SCO employee, I'd be VERY worried. Were I a SCO creditor, I'd be VERY
VERY worried. SCO investor? Don't even ask, there aren't enough VERYs around
;-)

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: webster on Tuesday, March 30 2004 @ 12:40 AM EST
This reads better than most of their stuff lately. They ask the judge to
bifurcate IBM's patent claims to avoid confusion and prejudice. IBM might not
care. They are more likely to oppose and tell the judge he can handle the
complete package without confusing the jury or unduly prejudicing SCO.

This is up to the discretion of the judge. They often deny such requests and/or
keep them under advisement in case anything comes up in the trial to make them
reconsider. He can always bifurcate later or in the trial. He directs the
trial so he should be able to keep things clear, issue instructions, and in the
end provide verdict forms to keep things organized.

So at this point he'll probably deny this and keep it all together. This is
minor. He'll probably rule without a hearing days, weeks, or months hence.
There is much more potentially dispositive issues on the way. There's that
little discovery problem and compliance with the order of December 12 coming up
soon.

---
webster

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IBM can kill this INSTANTLY
Authored by: Anonymous on Tuesday, March 30 2004 @ 01:17 AM EST
IBM just got leave to amend their counterclaim,

And IBM has lots of patents

The patents they ALREADY picked target all SCO products (Unixware etc.)

If there is any doubt that patents are not linked with the rest of the case
(e.g. IBM counterclaims), all IBM has to do is add some additional patents which
Unixware etc., infringe (I'm sure they can find some).

These additional patents should ideally be ones that are:

1. Solid IBM patents

2. Which SCO products such as Unixware infringe

3. Which Linux itself would infringe without a patent license from IBM

4. IBM has licensed (in terms of a license that SCO could theoretically use),
under the GPL and only the GPL.


Thus:

- If a person/entity is distributing Linux under the GPL, they are not infringe
these patents

- If a person/entity is distributing Linux in violation of the GPL or after
termination (i.e. SCO) -- that person/entity would not only be infringing
various IBM copyrights, but also various IBM patents

- If a person/entity is distributing a non-GPL product (e.g. Unixware), they are
infringing.



These ADDITIONAL Patent claims would then be massively irrevocably interlinked
to the IBM's Breach of GPL counterclaim, and the Copyright violations that flow
from that.


And if (say) there were ADDITIONAL patent claims interlinked to the "main
case",

(a) I don't see a judge wanting to bifurcate at least these additional patents
claims,

(b) And by cross-referencing between the IBM copyright claim, the existing
patent claims, and the proposed additional patent claims... bifurcation sinks
silently beneath the waves

[ Reply to This | # ]

Why MS is supporting SCO
Authored by: Anonymous on Tuesday, March 30 2004 @ 01:33 AM EST
It struck me today that MS is going end of life on NT at the end of the year. No way will this SCOX thing be settled and put to bed by then. Heck, we still haven't seen the code yet.

What struck me was that moving things off of NT to 2000 is a pain. Things don't work the same way, applications have to be re-written, administration needs to be re-thought, all of that.

Just as it would if the service running on NT were moved to .... Unix/Linux.

Could part of MS's FUD here be "Don't do all that work to move to Unix/Linux, it's a mess in IP court right now. Move on over to XP!"? I know that suits and PHBs would buy into that. "Gee, we can't use that commie...er, Line-ucks stuff. We might get sued!"

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: Kai on Tuesday, March 30 2004 @ 01:34 AM EST
Dunno how many people have seen this so I'm posting it here:

The GPL And The Legal Challenge To It
http://www.it-analysis.com/article.php?articleid=11807

---
Another (Western) Australian who is interested.

[ Reply to This | # ]

motion to bifurcate? Grandstanding!
Authored by: JustFree on Tuesday, March 30 2004 @ 01:34 AM EST
This seems to be SCO Group standard grandstanding. If any of the related patents were developed on or for AIX originally, the judge will not remove those patents claims from the case.

SCO: "Your honour we accept the fact that these are derivative works of UNIX, and are valid patents but they do not relate to this case."

They are not claiming this, explicitly or otherwise. With a guick read of the legal document they only state that "The patent counterclaims do not include the UNIX licensing agreements, nor do they refer to UNIX System V, AIX, Dynix/ptx, or Linux."

Just more SCO fluff, but is it possible that they will convince the judge. I do not think this will happen. IBM has well over a huge patent portfolio and they did not just grab any four patents.

Currently the company only supports UnixWare, which is a flavour of UNIX. It seems that SCO only bought the pot and a recipe book. The feast that they thought that they would have is not.

as in free speech get it.

[ Reply to This | # ]

Tenth Circuit vs Federal Circuit
Authored by: Anonymous on Tuesday, March 30 2004 @ 01:55 AM EST
If we play the safe assumption that The SCO Group's legal strategy is headed up
by the absolutely most cunning litigation mastermind ever conceived or born...

Could they be looking all the way to an appellate issue that they want resolved
by the Tenth Circuit, rather than by the Federal Circuit applying the law of the
Tenth Circuit?

That would seem to me to imply that the law is not yet settled in the circuit,
but that they like their chances better in Denver...

Does this sound plausible?

[ Reply to This | # ]

SCO's Motion to Bifurcate and Memorandum in Support
Authored by: grayhawk on Tuesday, March 30 2004 @ 02:16 AM EST
What I find most interesting in SCO's approach is that by requesting this they
are shooting themselves in the foot so to speak.

Their case up to this point and continues to be is a contract dispute with
respect to the fact that they feel that any derivative work should in some way
result in compensation to SCO. In other words they lay claim to any and all
developement that is in AIX whether directly or incedentally developed from
their SYSV code.

Now the patented items IBM is using as its claim against SCO are items that you
will find in AIX and Linux I believe. Since they are a part of AIX would that
not make them then derivative works under SCO's definition. So by them now
saying that these patent claims have no bearing on the contract issue they are
admitting that not all of the work in AIX/Linux would fall under their
definition of derivative works.

This begs the question as to where they draw the line on their definition of
what constitutes SYS V derivatives and what doesn't.

---
All ships are safe in a harbour but that is not where they were meant to be.

[ Reply to This | # ]

Is jury trial required?
Authored by: cricketjeff on Tuesday, March 30 2004 @ 05:58 AM EST
Genuine inquiry, this would not go in front of a jury in the UK. Can the judge
reply "If you think this is too hard for a jury we won't empanel one"

[ Reply to This | # ]

The Generals Are Watching the Battles
Authored by: Anonymous on Tuesday, March 30 2004 @ 12:39 PM EST
On one side, Gates and Ballmer are busy with their $53 B warchest. They
can buy all the FUD they need. They can front cash to SCOG and others.
They can offer jobs to EU commissioners (after their commission expires).
They can reverse engineer all FLOSS software. They can cut deals with
content providers for anti-piracy technology, bandwidth, and portals.
They can influence legislation. They can break every standard out there.

On the other side, Palmisano and corporate staff are busy. They have a
roadmap. They know where they are going and how to get there and
what it will take to succeed. The memory of OS/2 and legacy of John
Aikers motivate them.

Different generals with different business models. Who do you trust?
Who will succeed? Is one side attacking, looting, and pillaging? Is the
other side calmly attempting to ignore Bill Gates? Who are the other
generals out there watching?

This is asymmetric business. The SCOG is only one early battle. After
the legal attacks against GNU/Linux and the GPL, what will happen?
M$ bought MS DOS from Bill's friend for a pittance, M$ cloned NT from
DEC RSX-11D, and M$ cannot afford to trigger the GPL.

[ Reply to This | # ]

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