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IBM Says It Will Ask for Summary Judgment When Discovery and PreTrial Motion Practice is Complete
Wednesday, April 14 2004 @ 04:28 PM EDT

IBM has filed its response to SCO's request to separate out the patent counterclaims and have two separate trials. Here it is as PDF, IBM's Response to SCO's Motion for Separate Trials. The big news is that they clearly intend to go for the jugular the minute discovery and pretrial motion practice is complete. They reveal that they will be asking for summary judgment, and they say they expect most, if not all, the issues will be resolved that way, without ever going to trial.

On that basis, they argue that it's way too soon to even know what needs to be separated out, if anything. Once discovery and pretrial motion practice is finished, the picture will clarify.

Summary judgment is when you want a fast answer (we're marking on a curve -- the law is never speedy) , you are confident that there are no triable issues, and you believe that you are entitled to judgment as a matter of law. You can also ask for summary judgment when it's clear the other side can't prove its case. None of this declaratory judgment request and then wait 9 months like in Delaware. IBM is just waiting patiently for SCO to answer its discovery requests and get through all the depositions, and then they intend to move dramatically.

As to their patent counterclaims, they aren't as unrelated as SCO argues, IBM says. IBM has alleged patent infringement "with respect to the very products from which SCO alleges that IBM has misappropriated code (i.e., Unixware), and if not resolved on summary judgment (as we expect), IBM's patent claims are likely to present very few triable issues -- issues that could easily be made a small part of a larger trial on non-patent issues."

Ouch. They are saying they don't think most of this nonsense will ever reach a trial, because they have plans to ask for summary judgment. "We believe that most (if not all) of the claims and issues in suit can and should be resolved by summary judgment, without the necessity of trial," IBM cooly proclaims. They are just waiting to see what SCO coughs up in discovery and get all the depositions done, but after that is complete, the court will be in a position to say "how much and which parts of the case can be handled by summary consideration under Rule 56".

No wonder SCO wants to separate the parts. "SCO's motion should therefore be denied without prejudice to being renewed later in the case after the parties have properly met and conferred on the issues," IBM suggests.

Here is a definition of summary judgment from The 'Lectric Law Library's Lexicon:

"MOTION FOR SUMMARY JUDGMENT - A request made by the defendant in a civil case. Asserts that the plaintiff has raised no genuine issue to be tried and asks the judge to rule in favor of the defense. Typically made before the trial.

"'Each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.' Id. In order to defeat a summary judgment motion, the nonmoving party may not simply rely on his pleadings but must present some evidence on every material issue for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)."

And here's's definition:

"n. a court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact and other discovery, as well as a legal argument (points and authorities), that argue that there are no triable issues of fact and that the settled facts require a summary judgment for the moving party. The opposing party will respond by counter-declarations and legal arguments attempting to show that there are 'triable issues of fact.' If it is unclear whether there is a triable issue of fact in any cause of action, then summary judgment must be denied as to that cause of action. The theory behind the summary judgment process is to eliminate the need to try settled factual issues and to decide without trial one or more causes of action in the complaint. The pleading procedures are extremely technical and complicated and are particularly dangerous to the party against whom the motion is made."

Don't you love that last sentence? IBM made reference to Rule 56. That's Rule 56 of the Federal Rules of Civil Procedure. You can also find more on Wikipedia. And there's a very thorough breakdown of exactly who does what and what each party must do to prevail in a summary judgment in patent litigation. As you can see, IBM has just given its opinion of the value of SCO's case.


IBM Says It Will Ask for Summary Judgment When Discovery and PreTrial Motion Practice is Complete | 176 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here Please
Authored by: PJ on Wednesday, April 14 2004 @ 05:17 PM EDT
Mistakes here pls. Thanks!

[ Reply to This | # ]

IBM Says It Will Ask for Summary Judgment When Discovery is Complete
Authored by: sef on Wednesday, April 14 2004 @ 05:22 PM EDT

Why is it dangerous to the party against whom it is made? Since the most common response by the judge should be to disallow the summary judgment, how is this dangerous for (in this case) SCO?

[ Reply to This | # ]

IBM Says It Will Ask for Summary Judgment When Discovery is Complete
Authored by: Anonymous on Wednesday, April 14 2004 @ 05:23 PM EDT
Realistically speaking, how long (or how short) can it
take to get this matter resolved ? Are we looking at
months or years here ? What with longhorn being delayed
if these court cases last long enough enough fence
sitters will end up in MS's court anyway.
Win the battle lose the war, that kind of thing.

I'm getting this dark brown feeling that that is all
that matters which is why so much of what is going
on is unlogical at face value.

If you're not a coder and you want to help promote linux
then please <A href="">register here.

[ Reply to This | # ]

IBM Says It Will Ask for Summary Judgment When Discovery is Complete
Authored by: Anonymous on Wednesday, April 14 2004 @ 05:27 PM EDT
Now all we need to do is make bets on how long SCO can stall the discovery
process. I'd say 5-1 that that manage to draw discovery out at least another 8

[ Reply to This | # ]

Is there an equivalent in criminal law?
Authored by: Anonymous on Wednesday, April 14 2004 @ 05:32 PM EDT
Can a judge preempt a jury and say that there are no facts to be decided and
that the verdict depends only on an interpretation on law? Can a judge direct a
jury to reach a certain verdict? (What happens if the jury disagrees?)

[ Reply to This | # ]

The hazards of Summary Judgment
Authored by: overshoot on Wednesday, April 14 2004 @ 05:39 PM EDT
Well, one reason summary judgment can be dangerous is that when the motion is granted it can lead to the Court awarding the prevailing party costs and legal fees.

Think about what happens to SCOX if the Court hands them the bill for Cravath, Swaine.

[ Reply to This | # ]

OT: IBM Linux TV Ad
Authored by: ivanj on Wednesday, April 14 2004 @ 05:40 PM EDT
I've just seen my first Linux advert on TV!!
I am in the UK so this may old news to those in other countries. It was on at
10:30pm, and the actual word Linux flashed on, then off very quickly, but still,
a TV advert is a TV advert.

It said, "Linux is everywhere", and implied that it is everywhere,
speaks every language and just, well, kinda seems to fit.

Just what we always thought.

Doesn't IBM confidence show in everything they do at the moment, particularly in
their legal moves :)

[ Reply to This | # ]

IBM Says It Will Ask for Summary Judgment When Discovery and PreTrial Motion Practice is Complet
Authored by: oldgreybeard on Wednesday, April 14 2004 @ 06:03 PM EDT
Well considering IBM's rather large collection of IP and licenses to others IP
and the huge (we are talking hundreds of millions of lines of prior art {source
code}, a huge amount of which is already in the public domain) software library
they have.

Does anything else need to be said, remember before SCO and any of its
incarnations existed IBM was already writing extermely complex software. It is
just possible that they might be able to prior art half of what is out there and
then there is still another very large player who is sitting on the sidelines.

I've been long winded enough.

I'm enjoying this a lot, most fun I've had since that printer used to red light
the system.

[ Reply to This | # ]

When does IBM mean?
Authored by: Anonymous on Wednesday, April 14 2004 @ 06:11 PM EDT
Do they mean after October 22 (or whenever SCO manages to drag it out to), or do they mean after April 19th, when SCO is supposed to have finally shown it's cards?


[ Reply to This | # ]

IBM is trying to make discovery expensive for SCO
Authored by: Anonymous on Wednesday, April 14 2004 @ 08:14 PM EDT
The American patent system is broken and IBM could win patent claims against
almost any software company. IBM just added them in to show what happens when
people try to black mail them. If the patents are seperated out then SCO can
save a lot of money this year.

[ Reply to This | # ]

IBM Says It Will Ask for Summary Judgment When Discovery and PreTrial Motion Practice is Complet
Authored by: Anonymous on Wednesday, April 14 2004 @ 10:36 PM EDT
One potential drawback for IBM to request summary judgement is that the judge
might decline the request and say the issues must instead be decided at trial.
SCO could play this up as a victory in the media in an attempt to make them look
strong and IBM look weak.

[ Reply to This | # ]

Evidence Dumping
Authored by: Anonymous on Wednesday, April 14 2004 @ 11:17 PM EDT
If SCO's goal is now just to stall the IBM case, what's to stop them from
coming forth with a massive number of diffs just to present a huge pile of

They could make two types of cases:
#1 Diffs with code from BSD and other public sources that had a common
grandfather in both Linux and Unix. There's certainly a great deal of this
evidence around, and disproving it (though probably the eventual outcome)
will require a meticulous presentation of the legal lineage of the code in
terms that a non-technical judge can understand. Sure the odds of winning
this are miniscule, but any mistake by the IBM legal team or
misunderstanding by the judge can make huge delays and unleash a
hurricane of FUD.

#2 Diffs between versions of AIX that show code evolving and then show it
being entered into Linux. Then to top it off, make a diff between a version of
Unix code and AIX code. Whether it shows anything is irrelevant. It looks like
a logical progression. Of course the big chasm is between Unix and AIX (and
where there case will fail if IBM did everything on the up and up), but it
the seed for a meticulous research effort (like in #1) and it lays the
foundation so they can argue their "unique" copyright infringement

SCO may know that it can't win at this point unless IBM makes a mistake, but
it seems that it's in a good position for inspiring further "delay"
tactics. Or do
I completely misunderstand?

[ Reply to This | # ]

I hope IBM also asks for sanctions
Authored by: Anonymous on Wednesday, April 14 2004 @ 11:23 PM EDT
I would like IBM to ask for sanctions against the whole lot of them. SCO has
been playing chicken **** games for this whole abusive process. They knew or
should have known that they couldn't win. I think it is legally frivolous to
file suit solely to troll for a settlement.

I hope it would also be enough to pierce the veil against Canopy.

[ Reply to This | # ]

IBM did not say it would wait to move for dismissal and summary judgment
Authored by: Thomas Frayne on Thursday, April 15 2004 @ 12:47 AM EDT
IBM did not say that it would wait for the end of discovery before doing
anything else.

IBM simply argued that it was not time yet to split the case, because
dispositive motions such as dismissal and summary judgment motions will have
simplified the case before the end of discovery.

Expect IBM to start filing dispositive motions soon after it has analyzed the
materials that SCOG delivers next Monday. Also, expect motions for sanctions
appropriate for SCOG's actions related to the December 5 compel order.

[ Reply to This | # ]

McBride's next excuse: taxtime!
Authored by: Anonymous on Thursday, April 15 2004 @ 12:48 AM EDT
"Your honor, we had the million plus lines of infringing code in my
briefcase, but unfortunately I mailed it off with my tax returns...could I have
another 45 days to get it together again? Plus we were busy with taxes here at
SCO, so we'd really like another 3-6 months to get some really devastating
evidence to you. If it weren't for IBM's footdragging, this case would be over
by now. Come to think of it, that's cause for damages--how's another 5 billion

[ Reply to This | # ]

OT: Court Costs
Authored by: Anonymous on Thursday, April 15 2004 @ 03:51 AM EDT
In Australia, criminal case are paid for
by the tax payer.

In civil law suits, the costs are paid by
the parties in the suit.

How are the costs recovered in US courts ?

[ Reply to This | # ]

A question about summary judgement
Authored by: tzicha on Thursday, April 15 2004 @ 08:16 AM EDT
Can a summary judgement be appealed?

[ Reply to This | # ]

IBM Says It Will Ask for Summary Judgment When Discovery and PreTrial Motion Practice is Complet
Authored by: Anonymous on Thursday, April 15 2004 @ 11:16 AM EDT
Replace the 150 "they" refrences with either IBM or SCO so it becomes
clear who you are talking about. THX

[ Reply to This | # ]

Judge character by actions
Authored by: Anonymous on Thursday, April 15 2004 @ 08:23 PM EDT
IBM has shown impeccable character. Since 2000 or so, when IBM announced it
would invest one billion promoting and improving Linux to 2004 and IBM vs. SCO,
IBM has only exhibited commendable character. Everything that SCO has done to
bring attention to itself has shown that the current incarnation of SCO has a
character that can be described as reprehensible. I don't expect IBM to say
much more just because there is nothing to say when you have done nothing wrong.
I guess the saying "Contempt leads to madness" has shown itself to be
wise observation. As with most people who lash out at others in contemptious
manner, when they realize their behaviour may have been detrimental they attempt
to revert to a more placid demeanor. The only problem! the damage is done, you
can't un-ring a bell. I am sure the judge has made up his mind, For anyone to
claim they have been injured and then fail to reveal even one example out of the
millions of injuries they claimed when the argument started!! Well, I wish this
case could be used as an example, the sad thing about it all is that this will
set an example of how stupid our courts have become. Next time, make sure the
plaintiff has undisputed examples of their injuries before allowing the case
into court.

[ Reply to This | # ]

In plain English
Authored by: AllParadox on Thursday, April 15 2004 @ 09:55 PM EDT
IBM attorneys are saying:

Discovery will show that the central issue of this case is not about what code
IBM will not be allowed to use.

Instead, discovery will show the code that TSG will not be allowed to use.

And furthermore, there won't be any issues about it.

All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

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