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SCO Memorandum in Support of Motion to Bifurcate - as text
Tuesday, March 30 2004 @ 01:19 AM EST

Here is the text version of SCO's Memorandum in Support of Motion to Bifurcate. PDF is here.

Essentially, SCO makes the following arguments:

  • juries are too dumb to think about such complex things as patents and all the rest at the same time;
  • the trial will take too long if the patent counterclaims are kept with the other matters, and that would be burdensome for the jurors;
  • the patent counterclaims aren't related in any way to any of the other claims except that they involve the same parties, computers, and software;
  • it will speed things up to separate, because discovery will be prolonged in the patent matters;
  • they have hired separate patent representation, and it's easier for the patent attorney to do his own thing.
The document itself is not the usual SCO embarrassment. Likely, SCO would prefer that the patent counterclaims be decided only by a judge and not a jury at all. They may be foreshadowing a future such request in their footnote 6 about the Markman hearing. I can't think of any other reason to explain what a Markman hearing is to a judge, who already knows. But in doing so, they were able to insert the thought that judges are better qualified to decide patent cases.

You can't blame the patent attorney for not wanting to be mixed up in all the rest, on several levels. SCO has an uphill struggle on the patent counterclaims as it is, without mixing it all up with their far-fetched legal theories on contract and derivatives. I think it's very likely that this is the most compelling reason behind this motion. IBM may not care to even oppose this bifurcation request, actually, depending on some factors we will understand better when they answer this motion, such as whether the patents really are completely unrelated to the other claims in the case, as SCO is asserting.

Thanks to the anonymous reader who provided the plain text. Note that there are some typos in the document, which I have not corrected. As a matter of policy on the legal documents, I don't correct mistakes in the original or put a [sic], but leave it exactly as they filed it, minus address and phone numbers, which are available in the PDF.

******************************************

Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
David K. Markarian (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

______________________________________

The SCO GROUP, INC.,

Plaintiff,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

_____________________________________

PLAINTIFF SCO'S MEMORANDUM
IN SUPPORT OF ITS MOTION FOR
SEPARATE TRIALS

Case No. 2:03CV0294DAK

Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells

____________________________________

Pursuant to DUCiv 7-1(b), Plaintiff The SCO Group, Inc. ("SCO"), hereby submits this Memorandum in Support of its Motion for Separate Trials of the Defendant International Business Machine Corporation's ("IBM") patent counterclaims (counterclaims nine through twelve).

Introduction

In the 1980s, IBM entered into a series of licensing agreements with AT&T through which it obtained access to, and limited rights to the use of, the UNIX operating system (the "licensing agreements"). IBM used UNIX to build modifications or derivative works called AIX and Dynix/ptx. IBM later transferred parts of AIX and Dynix/ptx into an open source operating system called Linux. 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 agreements. Both SCO and IBM have asserted various claims arising from this nucleus of operative facts.

IBM, however, also has interposed four unrelated patent counterclaims. The question presented by SCO's motion is whether the discrete issues arising from the breach of the license agreements should 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. As detailed below, 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.

Factual Background

IBM's four patent counterclaims are as separable from one another as they are from the rest of the claims and issues in this lawsuit: the ninth counterclaim involves a data compression method;[1] the tenth, a certain method of navigating among program menus by a program called SCO Manager;[2] the eleventh, a self-verifying receipt and acceptance system for electronically delivered data objects;[3] and the twelfth, a method for monitoring and recovery of subsystems in a distributed/clustered system.[4] Nothing ties these claims together, or to the rest of the litigation, except the identity of the parties.

In contrast, the non-patent claims in the case relate to IBM's breach of the license agreements or are ancillary to IBM's breach of those agreements.[5] In addition to the breach of contract claims, SCO and IBM have brought three kinds of claims, most of which relate to IBM's breaches of the licensing agreements by its contributions to Linux. First, the parties each allege business tort claims, such as disparagement, unfair competition, and interference with actual or prospective contractual relations. Second, each alleges that the other infringed its copyrights. Third, the parties seek, through this litigation, a determination about the meaning and consequences, if any, of their respective contributions to and distributions of Linux.

Argument

This Court has considerable powers to decide how a trial is to be conducted and broad discretion to decide whether and how to separate claims and issues. Palace Exploration Co. v. Petroleum Development Co., 316 F.3d 1110, 1119 (10th Cir. 2003); Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1285 (10th Cir. 1999). The federal rules provide, as general guidance, that a court may order the separate trial of any claim or counterclaim (1) in furtherance of convenience or (2) to avoid prejudice or (3) when separate trials will be conducive to expedition and economy. Fed. R. Civ. P. 42(b). Only one of these criteria needs to be satisfied to support such an order. See DeWitt, Porter, Huggett Schumacher & Morgan, S. C. v. Kovalic, 991 F.2d 1243, 1245 (7th Cir. 1993). As detailed below, pursuant to Rule 42(b), patent claims present unique issues and are often separated from other statutory and common law claims. See, e.g., In Re Innotron Diagnostics, 800 F.2d 1077, 1084 (Fed. Cir. 1986) (recognizing "the now standard practice of separating for trial patent issues and those raised in an antitrust counterclaim"); Enzo Life Sciences v. Digene Corp., 2003 WL 21402512 *5 (D. Del. 2003) (separate trials ordered for patent infringement, patent validity and business tort counterclaims); Hunter Douglas, Inc. v. Comfortex Corp., 44 F. Supp. 2d 145 (N.D.N.Y. 1999) (patent infringement and antitrust claims separated into different proceedings); Simpson v. Stand 21, S.A., 1994 WL 735936 (S.D. Ind. 1994) (state and federal law counterclaims and third party claims separated from patent claims to foster judicial economy and convenience) (citing Manual for Complex Litigation, Second, § 33.62 (1985)); Kinzenbaw v. Deere & Co., 1981 WL 2135 *2 (N.D. Iowa 1981) (noting court's practice to separate patent and antitrust claims).

I. The Patent Counterclaims are Separable from the Other Claims.

The threshold issue in a Rule 42(b) analysis is the separability of the claims; a trial cannot be bifurcated unless its claims are separable. Angelo v. Armstrong World Industries, Inc., 11 F.3d 957, 964 (10th Cir. 1993). In this case, the question of separability is clear: the patent counterclaims involve extraordinarily complex technical facts and raise legal issues discrete from the remainder of this litigation. See Triad Systems Corp. v. Southeastern Express Co., 64 F.3d 1330, 1338 (9th Cir. 1995) (separation of trial of copyright infringement claim from antitrust counterclaims affirmed; claims are discrete issues, involving separate, complex bodies of law and trial court "did not want the jury to muddle the two").

IBM's four patent counterclaims are as separable from one another as they are from the rest of the claims and issues in this lawsuit. As noted above, IBM's ninth counterclaim involves a data compression method; the tenth alleges infringement of a patent covering a certain method of navigating among program menus; the eleventh alleges infringement of a patent covering a self-verifying receipt and acceptance system for electronically delivered data objects; and the twelfth alleges infringement of a patent covering a method for monitoring and recovery of subsystems in a distributed/clustered system. Nothing ties these claims together, or to the rest of the litigation, except the identity of the parties, and that computers and software are involved. The patent counterclaims do not involve the UNIX licensing agreements, nor do they refer to UNIX System V, AIX, Dynix/ptx, or Linux.

The varied and complex nature of the patents and products involved in these counterclaims -- data compression, graphical menu navigation, delivery verification, and cluster subsystem monitoring -- also dictates that their resolution will involve "different lines of inquiry" and also require the use of different proofs. Such considerations are a compelling reason to separate claims. See, e.g., Hal Leonard Publishing Corp. v. Future Generations, Inc., 1994 WL 163987 at *2 (S.D.N.Y. 1994); Reading Industries, Inc. v. Kennecott Copper Corp., 61 F.R.D. 662, 665 (S.D.N.Y. 1974). Here, IBM's patent counterclaims are cleanly separable from the rest of this litigation, and their separability allows this Court to try them apart from the licensing claims in order to foster a final disposition of this litigation as a whole.

II. The Separate Trial of the Patent Counterclaims Would Promote Fairness and Reduce the Prejudice to the Parties.

Ordering separate trials of the licensing claims and the patent counterclaims will reduce the risk of juror confusion and eliminate the potential "spillover effect" from one claim to another. Courts have recognized that prejudice inheres in jury trials involving complex bodies of law and facts, and have found that the risk of juror confusion in such cases strongly militates in favor of ordering separate trials. Bifurcation allows juries to concentrate on one complex body of law at a time, Enzo Life Sciences, Inc. v. Digene Corp., 2003 WL 21402512 at *5 (D. Del. 2003), and therefore aids the fair and orderly disposition of the issues. Reading Industries, Inc. v. Kennecott Copper Corp., 61 F.R.D. 662, 665 (S.D.N.Y. 1974); accord Hal Leonard Publishing Corp. v. Future Generations, Inc., 1994 WL 163987 at *4 (S.D.N.Y. 1994) (recognizing that "the risk of juror confusion in a case presenting several complex claims ... is itself a reason to order separate trials"); In re Innotron Diagnostics, 800 F.2d 1077, 1085 (Fed. Cir. 1986) (stating that "[a]voidance of prejudice and confusion is served in trying first the patent issues, without injecting the different counterclaim issues which required different proof and different witnesses"). Given the danger of prejudice and confusion inherent in a jury trial of such complexity, separate trials are justified to avoid confusing a jury on the numerous claims, issues, and proofs. See Triad Systems Corp. v. Southeastern Express Co., 64 F.3d 1330, 1338 (9th Cir. 1995) (finding no abuse of discretion in the trial court's separation of copyright and antitrust claims since the court "justifiably did not want the jury to muddle the two").

In Enzo Life Sciences, the court concluded that the patent claims should be separated from the business tort counterclaims, noting that '"[e]xperienced judges use bifurcation and trifucation both to simplify the issues in patent cases and to maintain manageability of the volume and complexity of the evidence presented to a jury."" Enzo Life Sciences, 2003 WL 21402512 *5 (quoting Thomas L. Creel & Robert P. Taylor, Bifurcation, Trifurcation, Opinions of Counsel, Privilege and Prejudice, 424 PLI/Pat Litigation 823, 826 (1995)). The court further noted "bifurcation of complex patent trials has become common." Id. (citing Steven S. Gensler, Bufurcation Unbound, 75 Wash. L. Rev. 705, 725 (2000)). The court then observed that this reasoning "is also applicable to cases involving both patent and non-patent claims." Id. at *5.

As presently constituted with the patent counterclaims, this case will place a heavy burden on the jury's comprehension and is likely to clutter the record and confuse the jury. The same jury would have to weigh IBM's conduct related to licensing agreements and the business tort, copyright infringement and other claims, as well as each of the four patent counterclaims that survive the Markman hearing. [6] Evaluation of the patent claims alone would require a determination of whether each patent claim was valid, whether each patent claim was enforceable, whether each patent claim was infringed, and the defenses to each patent. The jury would also have to decide whether damages are appropriate and, if so, in what amount; and, finally, whether the conduct complained of was willful.

Separate trials, of course, eliminate the prejudice caused by combining this multitude of complex issues. In separate trials, the parties will be able to present evidence in a manner that is easier for the jurors to understand and the parties will be able to limit the number of legal issues the jury must address.

III. The Separate Trial of the Patent Counterclaims Would Promote Expedition and Economy.

As described above, the licensing claims are complex in their own right. They comprise seven claims, nine counterclaims (not counting the patent counterclaims), and nearly three dozen affirmative defenses. These claims and defenses invoke both common law and statutory rights; they sound in contract, tort, copyright, unfair competition, and false advertising; and they involve both law and equity. It is anticipated that the discovery relating to these non-patent claims alone will consume many months and involve at least 80 depositions, and that the adjudication of the claims would require 5 weeks of testimony before a jury.

The patent counterclaims, however, greatly expand this litigation and will hinder and delay the orderly pre-trial preparation of the case for trial. The pre-trial work, for example, will more than double. At a minimum, it is estimated that the patent counterclaims will require at least as much discovery as the other claims in the litigation. They involve a total of four patents and include up to 52 patent claims that may be asserted and will have to be construed: U.S. patent 4,814,746 has eighteen claims; U.S. patents 4,821,211 and 5,805,785 have twelve claims each; and U.S. patent 4,953,209 has ten claims. Patent counsel separately engaged to defend SCO against the allegations raised by IBM in the patent counterclaims estimate that perhaps as many as 75 depositions or more will be required because the four patents are separate and distinct from each other. The patent counterclaims address completely different subjects, involve completely different products that were issued at different times, raise distinct claims for damages, and have different inventors; accordingly, their adjudication will require different witnesses, different documents, and different defenses.

Besides doubling the amount of necessary discovery, the patent counterclaims also raise numerous technical issues that the Court otherwise would never consider on the remaining non-patent claims. These additional issues will necessarily significantly delay the orderly prosecution of the remaining claims. For example, SCO's patent counsel estimates that the Markman hearing to construe each of IBM's four asserted patents would last between one to two weeks for all four patents. The Markman hearing would have no bearing on any of the issues in any of the other claims asserted either by SCO or IBM.

An order requiring a separate trial of the patent claims would also promote expedition and economy at trial. As a practical matter, the patent claims would necessarily require at least an additional five trial weeks, thereby doubling the amount of time to ten weeks that a juror would have to devote to this case. Moreover, if these disparate claims remain united at trial, the efficient disposition of the less complex licensing claims will be overshadowed by the more unwieldy and technical patent claims. See, e.g., Ecrix Corp. v. Exabyte Corp., 191 F.R.D. 611, 614 (D. Colo. 2000) (bifurcating patent claims from antitrust and unfair competition claims "in the interest of economy and to expedite the trial"); Tab Express Int'l, Inc. v. Aviation Simulation Technology, Inc., 215 F.R.D. 621, 624 (D. Kan. 2001) (on severance motion, court recognized that economy and expedition is best achieved through severance of contract claims from defendant's patent counterclaim). Separation will further convenience and economy, both at trial and pre-trial, by allowing separately retained patent counsel to focus solely on the patent claims. See, e.g., Alarm Device Manufacturing Co. v. Alarm Products International, Inc., 60 F.R.D. 199, 202 (E.D.N.Y. 1973) (justifying separate trials, in part, because separate counsel was retained to try patent claims).

Separating the patent counterclaims would also prevent delay. Separated, the licensing claims and the patent claims would proceed through discovery and to trial at their own pace. 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 current trial setting because, to date, IBM has not responded to any of SCO's discovery requests directed towards the patent issues. The patent claims, therefore, are literally at the beginning stages. Given the posture of the patent claims and their complexity, including the need for extensive Markman hearings, the minimum amount of time necessary to prosecute and defend the patent counterclaims is an additional 18 months.

Conclusion

This case revolves around the licensing agreements that govern IBM's use of UNIX and its modifications or derivatives, AIX and Dynix/ptx. The difficulties caused by adding IBM's unrelated patent claims to these distinct claims require that the patent issues be resolved in a separate trial, by a separate jury. The patent claims and the licensing claims are cleanly and completely separable, and their separate trials will prevent delay, reduce jury confusion and prejudice, and economize judicial resources. Accordingly, SCO respectfully requests that the patent counterclaims be set for a separate trial period with a separate scheduling order.

DATED this 24th day of March, 2004.

Respectfully submitted,

____signature__________
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J. Heise
David K. Markarian


[1] ¶¶128-129, IBM Amended Counterclaim.
[2] ¶¶134-135, IBM Amended Counterclaim.
[3] ¶¶141-142, IBM Amended Counterclaim.
[4] ¶¶146-147, IBM Amended Counterclaim.
[5] SCO claims that IBM breached the terms of its own, as well as Sequent's, licensing and sublicensing agreements (Counts I-IV, Second Amended Complaint); that IBM infringed SCO's copyrights in UNIX and related works (Count V); that through its involvement in Linux, IBM competed unfairly against SCO (Count VI); and that IBM interfered with contracts between SCO and its licensees (Count VII), between SCO and Novell regarding SCO's rights to UNIX (Count VIII), and in business relationships between SCO and other companies in the computer industry (Count IX). IBM's non-patent counterclaims reference the same licensing agreements (First Counterclaim); allege that SCO has misrepresented IBM's rights to AIX (Second Counterclaim), that through this misrepresentation SCO has competed unfairly against IBM (Third Counterclaim), interfered with IBM's prospective business relations (Fourth Counterclaim), and engaged in unfair trade practices (Fifth Counterclaim); that SCO breached the GNU General Public License by distributing Linux improperly (Sixth Counterclaim), that SCO's distribution of Linux estops it from making claims against Linux and IBM (Seventh Counterclaim), and that SCO's distribution of Linux violated IBM's copyrights (Eighth Counterclaim).
[6] The Markman hearing is named after the Supreme Court's decision in Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), in which the Court mandated that judges, not juries, undertake the demanding and time consuming process of interpretation of patent claims, including disputed technical and non-technical terms of the claims.
[7] See Exhibit V, IBM Amended Counterclaim.
[8] See Exhibits W and Y, IBM Amended Counterclaim.
[9] See Exhibit X, IBM Amended Counterclaim.


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc. hereby certifies that a true and correct copy of PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SEPARATE TRAILS was served on Defendant International Business Machines Corporation on this ______ day of March, 2004, by U.S. Mail, first class, postage prepaid, on their counsel of record as indicated below:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

Evan R. Chesler, Esq.
David R. Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]


  


SCO Memorandum in Support of Motion to Bifurcate - as text | 127 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
equitable estoppel and unclean hands
Authored by: Anonymous on Tuesday, March 30 2004 @ 01:28 PM EST
How much of an argument does IBM have for keeping the patents in the case to
demonstrate SCO's unclean hands?

[ Reply to This | # ]

SCO Memorandum in Support of Motion to Bifurcate - as text
Authored by: Anonymous on Tuesday, March 30 2004 @ 01:42 PM EST

Perhaps you could do a <a title='This is a typo in the source'>tpyo</a>. This would allow you to note them without adding any visible text.

[ Reply to This | # ]

No more SCO IP in Linux fud !
Authored by: Sander on Tuesday, March 30 2004 @ 01:52 PM EST

Others have noticed it before but it's worth mentioning again. This is another
SCO document where not a word is said about Linux supposedly having illegaly
used SCO source code. It's all about some vague license agreement that IBM
violated, has SCO finally seen the light?

I really wonder what caused them to stop spreading this lie.

---
I tried to ping SCO's IP in Linux, but it returned no route to host ...

[ Reply to This | # ]

Corrections here...
Authored by: kbq on Tuesday, March 30 2004 @ 02:00 PM EST
Please post corrections here.

[ Reply to This | # ]

URLs here...
Authored by: kbq on Tuesday, March 30 2004 @ 02:03 PM EST
Please post URLs here.

[ Reply to This | # ]

SCO Memorandum in Support of Motion to Bifurcate - as text
Authored by: perpetual_newbie on Tuesday, March 30 2004 @ 02:13 PM EST
As I still do not completely understand all parts of this, please correct me if
I'm wrong.

As I understand, the patent claims are for infringing use of IBM methods,
specifically data compression, program menu navigation, monitoring of clustered
systems, etc.

These, as I understand, are all methods that IBM has allowed use of under the
GPL for Linux. SCO's infringement of this is based on refusing to accept the
terms of the GPL, after the fact, which is what the entire rest of the case is
based on.

From that, how are these unrelated? Until this case arrived, SCO would not have
been violating IBM's patents since their license to use such methods fell under
the terms that were originally agreed to in the GPL, correct?

Or, as always, am I missing something?

[ Reply to This | # ]

SCO is correct, for once
Authored by: IMANAL on Tuesday, March 30 2004 @ 02:30 PM EST
Correct: Most members in a jury don't speak legalese as well as a judge...

But, still, why have juries at all, then? ...

[ Reply to This | # ]

Bifurcated claims!?
Authored by: minkwe on Tuesday, March 30 2004 @ 02:35 PM EST
original situation:
<--------------all claims--------------->

Bifurcated claims:
<-------other----><-------patent-------->

The way I see it, they both take the same time and the same resources.

Or, does SCO want:
<-------patent---->
<-----other------->

Are their patent lawyers bleeding them dry or what?

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

[ Reply to This | # ]

SCO Memorandum in Support of Motion to Bifurcate - as text
Authored by: Anonymous on Tuesday, March 30 2004 @ 02:42 PM EST
I may be incorrect about this, but wasn't SCO originally seeking a jury trial?

[ Reply to This | # ]

Where's the patent connection?
Authored by: moogy on Tuesday, March 30 2004 @ 02:51 PM EST
I find it a rather silly argument that bifurcation will
speed up the process of the resulting child cases. Of
course it would! Any case that has multiple issues to
make decissions on would speed up the process for each
child case because there would be fewer issues to be
decided in each child case.

Patents irrelevant? Well now, SCOG claims that Linux
has incorporated unix methods and structure etc... and
that Linux got such things from IBM directly, and
SCOG indirectly. These are not copyright issues, they
are patent issues whether they are stated as such or
disguised with euphemisms. SCOG has themselves raised
the issue of patent infringments. It's just that IBM
actually counters with real patents that do exist and
apply, instead of magical incantations of what is covered
by patent law alone.

---
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 Memorandum in Support of Motion to Bifurcate - as text
Authored by: blacklight on Tuesday, March 30 2004 @ 02:51 PM EST
From my purely selfish point of view, decoupling the patent counterclaims makes
the pleadings more readable, if only because there is less clutter.

From SCOG's point of view, the decoupling allows it to play delaying games with
the patent litigation: I presume that a brand new schedule will have to be
agreed to, that the patent litigation will be kicked to the bottom of some
Federal Court's docket, etc. It is also possible that SCOG's patent attorney has
seen for himself or herself the general quality of SCOG's pleading, and wants to
stand up for himself or herself as an independent operator rather than a
participant in SCOG's grand adventure in shoddly legal work - After all, SCOG's
patent attorney has business from future clients to worry about.

From IBM's point of view, the patent litigation plays to IBM's historical
strength. In addition, IBM can turn up the voltage at will on SCOG by giving
SCOG more patents to litigate.

[ Reply to This | # ]

Bailing the ocean
Authored by: jfabermit on Tuesday, March 30 2004 @ 03:01 PM EST
IANAL etc.

Will winning the motion to bifurcate really even help SCO at this point all that
much?

IBM is set to destroy them with their interrogatories about revealing lines of
code and past licensing terms under which that code was released, but I would
think that those discovery obligations fall under the copyright/contract side,
and not the new patent counterclaim case, should they be split.

In other words, isn't SCO basically still going to get nailed to a tree in
mid-april? I think it may be a Tom Clancy reference, but this is like how I've
seen cynics describe nuclear disarmament treaties: If I have 1000 nuclear
weapons aimed at you, and then agree to destroy 100, do you feel any safer?

[ Reply to This | # ]

SCO Memorandum in Support of Motion to Bifurcate - as text
Authored by: Glenn on Tuesday, March 30 2004 @ 03:20 PM EST
On a related note, IBM has asked for and been granted leave to amend its
counterclaims. Frank Sorensen has them up at www.tuxrocks.com. Just wondering
what IBM is going to throw at the SCOG next. The SCOG has been on its bicycle
ever since it started this mess, but IBM is slowly and methodicall working them
into a corner and will be throwing a knockout punch that will connect when it
gets the SCOG where it wants it.
Also Novell has entered its memorandum in opposition to the SCOG's motion to
remand but it is not yet available.

Glenn

[ Reply to This | # ]

The grinder
Authored by: Anonymous on Tuesday, March 30 2004 @ 03:27 PM EST
> IBM may not care to even oppose this bifurcation request...

Yep, I think they in fact won't. The patent part of the lawsuit will be going on
long after the copyright/contract thingy is over (in IBM's favour, of course).
SCO have no case when it comes to copyright/contract, but it will be the patents
that will slam the doors of the company that calls itself SCO for good.

Bottom line: IBM's got a nuclear weapon and they aren't afraid to use it.

[ Reply to This | # ]

Honestly, I have to support SCO on this one
Authored by: Elessar on Tuesday, March 30 2004 @ 03:35 PM EST
While I'm as strongly against TSCOG as everyone else here, I'd have to support
them on this one. I like the fact that IBM is sticking up for Linux, but I
think their patent counterclaims really serve to illustrate the problems with
software patents.

As long as they're only using those patents to go after people we don't like,
it's easy to cheer them for it, but there's nothing to say they won't turn on
the people we do like if they decide it'd be better for their bottom line.

I never saw how the patent claims related to the rest of the case, other than to
add an extra bit of sting to the counter claims. Without reading all the
referenced cases, TSCOG's motion and supporting memorandum leave me with the
impression that this is a reasonable thing to do.

[ Reply to This | # ]

SCO Memorandum in Support of Motion to Bifurcate - as text
Authored by: Anonymous on Tuesday, March 30 2004 @ 03:43 PM EST
The document itself is not the usual SCO embarrassment.

I'm just picturing SCO's lawyers reading Groklaw's review of their memoradum. High praise indeed, relatively speaking. ;-)

[ Reply to This | # ]

Why a jury in the first place?
Authored by: Anonymous on Tuesday, March 30 2004 @ 04:13 PM EST
Why does SCOX even get to demand trial by jury? In criminal cases I can see why
you'd want a jury of your peers; in civil matters it doesn't make much sense.
SCOX's peers are companies; jury nullification in civil cases doesn't make much
sense; and there are many more civil trials than criminal ones - why tie up that
many people in jury duty?

Also, in criminal cases the defendant gets to ask for a jury, not the plaintiff
(i.e. The People).

(Another thought; if SCOX was truly concerned about any undue strain on jurors
lives, they shouldn't have demanded trial by jury..)

So, what's the reasoning for juries in civil cases? Can SCOX demand trial by
jury in any State, or do some States have limitations on this sort of thing? How
about Federal Court?

[ Reply to This | # ]

Would IBM ask for an injunction?
Authored by: Anonymous on Tuesday, March 30 2004 @ 05:07 PM EST
Once the patent case becuase it's own beast, wouldn't it be prudent for IBM to
ask for an injunction against the sale/distribution of products which allegedly
infringe on it's patents?

Isn't that what you normally do in a patent case?

They didn't seem to persue their patent infringement claims too agressively in
the original counter-suit. I figured that was becuase it was one of many things,
but if it's going to be seperate, then why not go full tilt on it?

What do you think?

Bill Sylvester - Not A Lawyer

[ Reply to This | # ]

OT: *** BIG DEVELOPMENT ****
Authored by: Anonymous on Tuesday, March 30 2004 @ 05:30 PM EST
IBM is finished playing around. It's time to end this charade.

[ Reply to This | # ]

Patents and Juries
Authored by: arch_dude on Tuesday, March 30 2004 @ 05:42 PM EST
I think IBM added the patent counterclaims specifically because this is a jury
trial. This is insurance against the jury finding in SCOG's favor on SCOG's
claims. If the same jury learns at the same time that SCOG is clearly violating
IBM's patents, then the jury is unlikely to grant SCOG soem insane amount of
money. They are more likely to say "You are each violating the other's IP.
Offsetting penalties."

This is the reason SCOG moved to Bifurcate: they are still counting on
convincing a jury that IBM stole their IP, and they don't want to give IBM any
arguments to reduce the damages in the jurors' minds.

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SCO Memorandum in Support of Motion to Bifurcate - as text
Authored by: Anonymous on Tuesday, March 30 2004 @ 05:54 PM EST
Here is a new story. http://news.com.com/2100-7344_3-5182078.html?tag=nefd_top
IBM is seeking a judicial judgment absolving it from any claims of copyright
infringement against Linux antagonist the SCO Group.

The request appears in an amended counterclaim Big Blue filed Tuesday in its
legal battle with SCO, whose main claims allege IBM violated contract provisions
by distributing Linux products that illegally incorporate Unix code that SCO
controls.

The filing in U.S. District Court in Salt Lake City includes a new counterclaim
in which IBM seeks a declaratory judgment ruling that "IBM does not
infringe, induce the infringement of or contribute to the infringement of any
SCO copyright through its Linux activities, including its use, reproduction and
improvement of Linux, and that some or all of SCO's purported copyrights in Unix
are invalid and unenforceable."

The document also drops one of IBM's claims of patent infringement by SCO,
regarding IBM's patent for a "method of navigating among programs using a
graphical menu tree," which the company originally claimed had been
incorporated into SCO products.

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eweek: Linux vs. Windows: Which Is More Secure?
Authored by: kh on Tuesday, March 30 2004 @ 06:02 PM EST
http://www.eweek.com/article2/0,4149,1557459,00.asp?kc=EWRSS03119TX1K0000594
Which do you think they found more secure? Windows == redhat!!! How did they manage to fudge that?

Oh and BTW I think I have found the problem with adding long URLs. Maybe. I'll test it out with this comment. The edit page has this attribute on the Comment text box: textarea name="comment" wrap="physical". Perhaps without the wrap="physical" I wouldn't get spaces in my URLs.

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IBM seeks declaratory judgment.
Authored by: Anonymous on Tuesday, March 30 2004 @ 06:03 PM EST
zdnet.com.com/2100-1104-5182078.html
The following is copied from the above
article:

" The filing in U.S. District Court in Salt Lake City includes a
new counterclaim in which IBM seeks a declaratory judgment ruling that "IBM does
not infringe, induce the infringement of or contribute to the infringement of
any SCO copyright through its Linux activities, including its use, reproduction
and improvement of Linux, and that some or all of SCO's purported copyrights in
Unix are invalid and unenforceable." "

Sorry if this is has been mentioned
previously and I missed it.

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OT: Microsoft battle with EC just beginning!
Authored by: Anonymous on Tuesday, March 30 2004 @ 06:11 PM EST
EE Times has three articles on "post EU Commission ruling" events.

<a
href="http://www.eetimes.com/showArticle.jhtml?articleID=18402789">

Another EC case against Microsoft waits in the wings</a>

<a
href="http://www.eetimes.com/showArticle.jhtml?articleID=18402663">

EC vs. Microsoft is consumer market's fight</a>

<a
href="http://www.eetimes.com/showArticle.jhtml?articleID=18402573">

EC's Microsoft ruling sets precedent for other industries</a>

Hope you find them useful. I tried to create links...

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SCO Memorandum in Support of Motion to Bifurcate - as text
Authored by: Anonymous on Wednesday, March 31 2004 @ 02:59 AM EST
I have seen several posters say they agree with SCO on this issue, but I do not.
If you read IBM's amended counterclaim, they are saying that the patent
violations are part of SCO's bad faith in this suit and it's decietful behavior
in public.

I have also read posts that the patent claims have nothing to do with Linux.
Read the complaint again. They are saying that SCO's is "making, using,
selling and/or offering to sell products, including UnixWare and Open
Server". They are not limiting the scope of the violation to UnixWare and
Open Server. They are making sure that it is understood that the violation
occurs in these products as well.

Now here is my supposition on this. IBM has implemented the methods and
structures of these patents in Linux. This would serve a 2 fold purpose. IBM
loses nothing in the value of the patent by licensing under the GPL. Because it
is their original work they can still implement the same methods and structures
as a proprietary product. But, this would prevent their competition from using
the patent without a license unless that company GPL's their product or buys a
separate license from IBM. It protects both Linux and IBM. It is truely
ingenious and devious.

Here is an example:
I develope a method and structure for a certain way to draw widgets on the
monitor to prevent burnout. (I'm attempting to patent a screensaver. I know.
Bare with me here.) I develope a copyrighted implementation of this method and
sell it as a proprietary product. I also develop another copyrighted product
based on the methods and structures in this patent and license it under the GPL.
Both that copyright and , by freely implementing the method and structure
myself, the patent are now GPL'd. That in no way prohibits me from having the
proprietary offering. It also does not prohibit others from using my
methodology or structure in another offering as long as it is GPL'd or licensed
from me separately. It's still my patent. I can license it under several
license. The GPL does not forbid that. It only forbids me from taking
posession of that other guys implementation for proprietary purposes. I am
still free to market my proprietary implementation and include the other guys
screensaver in an overall package by noting his product is licensed under the
GPL, including a copy of the license and, offering a copy of the souces to his
product. I can even add other neat goodies to both his and my product and send
his back out to the community under the GPL. The only thing I have done is dual
license my original work. I created the patent. I created the additional
goodies that I added. There is nothing preventing me from offering my original
work under 2 licenses. Heads I win. Tails my competitor loses. Cool huh?

There is also another reason to do this. IBM has spent a lot of money on
marketing and R&D for Linux. It puts the rest of the world on notice that
IBM has implemented patents in Linux, and it will prosecute those patents if the
GPL is violated by not appropriately GPLing the copyrighted implementation or
obtaining a license from IBM.

Boys and girls, I think Linux may just have gotten some patent teeth.

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Death with honour
Authored by: Brangdon on Monday, April 05 2004 @ 01:29 PM EDT
If the patent issue is separated off, and proceeds more quickly, might it end up
destroying SCO before the other case is concluded? Would that leave the various
other issues (validity of the GPL, whether Linux is legally safe to use etc),
unresolved?

That might be a good result for certain parties. It could mean the fear,
uncertainty and doubt that SCO has created over Linux would remain in the air.
It could mean SCO would never be found guilty of various shenanigans. The
company's officers could hold their heads up high, claiming they would have
beaten Linux if only they hadn't been undercut by the patent issue. Suing for
patent violation is something IBM could do to anyone, anytime; there's no shame
in losing to that.

SCO would be destroyed, but who cares? From the point of view of, say,
Microsoft, this might be the best possible outcome.

It's just a thought.

---
Dave Harris, Nottingham, UK

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