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SCO Reply Memorandum In Support of its Motion for Separate Trials - as text |
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Wednesday, April 21 2004 @ 06:01 PM EDT
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Happily, andyj had a sudden burst of energy and quickly transcribed SCO's Reply Memorandum in Support of Its Motion for Separate Trials, so here it is as text. As you will see, SCO pretends it didn't hear most of IBM's arguments, and it twists the parts it did absorb and acts like they mean something other than what IBM wrote. I used to have a sister who argued a little bit like SCO, although she couldn't hold a candle to SCO in scale and daring. But she did have the most irritating way of picking out one tiny side point I had said and twisting it to make it seem like I had conceded her main point. SCO does the same. It's really annoying.
For example, my sister and I were the same size, and we had an arrangement to share our clothes. But in reality, I rarely got to wear hers and she was always wearing mine. If my sister and I wanted to wear the same sweater to school, she'd tell my mom that I shouldn't be allowed to wear it because I'd get it dirty. I'd maybe say, "Well, she got my green dress dirty last week when I let her wear it, so what is the difference?" To which, my sister would say, in triumph, "See? She admits she is going to get it dirty," ignoring the fundamental fairness issue underlying my remark. SCO here says, "See, IBM admits that this case is complicated and unwieldy and it might make sense to split it up," whereas IBM's chief point was that it doesn't think any of this nonsense is ever going to go to trial, because they expect to bring motions for summary judgment, and that it is too soon to know if there is a need to bifurcate, anyway, and it surely is too soon to know which elements of the case to break off into separate trials, if any, because discovery is just getting going, even if it were in some imaginary universe ever going to trial. To which SCO replies, as if it hadn't heard that part, and it had no clue that the deadline for receiving discovery from IBM was this past Monday, "Worse, SCO has yet to see a single document from IBM in response to SCO's discovery supporting its patent
claims. . . ." I hope the judge finds such non sequiturs as annoying as I do. In a perfect universe, the judge had a sister. I trust the "40 patent claims" SCO moans about is a typo, not a stretching of the truth to make the case seem "unwieldy" and "complex". There are, as usual, typos in the document. They seem to be arguing that it's too much to expect them to be able to handle all this discovery at the same time, to which one might point out that they brought the action and reasonably could have expected counterclaims. Granted they may be stretched rather thin, with so many other legal actions going on, but they brought the AutoZone and DaimlerChrysler cases after filing the action against IBM, so who is to blame if they are loaded down? If they can't handle all the legal work, maybe they should stop suing people. Just a suggestion.
******************************************
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)
BOISE, SHILLER & 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 REPLY MEMORANDUM
IN SUPPORT OF ITS MOTION FOR
SEPARATE TRIALS
Case No. 2:03CV0294DAK
Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells
______________________________________
IBM acknowledges that this court "has considerable power to decide how a
trial should be conducted and broad discretion to decide whether and how to separate
claims and issues." IBM's Response, p. 3. IBM also concedes that this case is very complex, and
that "it may make sense ultimately for the Court to adjudicate the claims and issues presented
in more than one trial." IBM Response, pp. 3, 4. (emphasis added). Most importantly, IBM scarcely
denies that its patent counterclaims have nothing to do with this case, devoting a mere two
sentences of its Response Brief to this critical issue. And in those two sentences, IBM admits
that the counterclaims are unrelated and unwieldy, claiming only (without showing) that they are
not "as unrelated" and "as unwieldy" as SCO has shown in its motion. Moreover, the many factual
points SCO demonstrated in its motion proving that separate trials are warranted are unrefuted in
IBM's Response Brief.
With the essential facts undisputed, IBM's sole argument in opposition
to SCO's motion for separate trials is that this Court should defer decision of this
issue until a later date - indeed, IBM suggests that the motion be denied without prejudice. IBM's
justification for deferring ruling on an issue that requires immediate attention is two fold. First, IBM
hypothesizes that "most (if not all) of the claims and issues in the suit can and should be
resolved by summary judgement...." IBM Response, p. 3. Second, IBM believes that the discovery and Markman
hearings required for the three remaining patent claims[1] can be begin and end in
approximately 3 months. IBM Response, p. 6. Neither proposition justifies combining the pre-trial
and trial of the admittedly unrelated patent claims with the remainder of the litigation.
In contrast to IBM's "wait and see" suggestion, SCO has already
identified multiple grounds for separating discovery and trial of the patent counterclaims
from other claims in this case. SCO's motion detailed the ways it would be prejudiced if forced
to litigate the patent counterclaims injected by IBM into the case at the same time as the
non-patent issues. Examples of this prejudice include the fact that SCO and IBM currently have only
approximately 3 months remaining within which to complete non-expert discovery and are allocated
40 depositions each. IBM's remaining patent counterclaims alone could require as many as 65
addtional depositions to resolve the 40 patents claims they raise. The resolution of these
unrelated patent counterclaims could delay the litigation by at least 18 months, as the court must hold
Markman hearings and resolve the countless technical issues such claims represent. Worse,
SCO has yet to see a single document from IBM in response to SCO's discovery supporting its patent
claims, so SCO is hardly in a position to initiate the required patent depositions or even
prepare for them. If the patent counterclaims are not separated so that the remainder of the case
can proceed to trial, these admittedly unrelated counterclaims will impede the orderly preparation of
this case, including doubling the already considerable pre-trial time needed to bring this
matter to resolution. IBM, on the other hand, does not claim that it will be prejudiced by
separating the patent and non-patent issues.
Ignoring the impact on SCO of having to conduct discovery of both the
patent and non-patent claims at the same time, IBM instead relies on cases where courts
exercised their discretion to defer ruling on motions to separate trials. None of those cases
supports the idea that a district court must or should postpone such a decistion until after discovery.
Moreover, not a single one of IBM's cases involved patents, while numerous cases cited in SCO's motion
specifically related to separating patent claims. IBM has not endeavored to distinguish any of
these cases, all of which fully support separating the unrelated patent counterclaims from the
remainder of the litigation.
For the foregoing reasons, SCO respectfully requests that the Court
enter an order separating for discovery and trial IBM's four patent counterclaims from
the other claims in the case.
DATED this 19th day of April, 2004.
Respectfully submitted,
By: ____[signature]___________
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise
David K. Markarian
Counsel for Plaintiff/Counterclaim defendant
____________________________________
1 After requesting that SCO further identify IBM's inequitable conduct before the Patent and Trademark
Office, IBM coluntarily dismissed one of its four patent counterclaims.
______________________________________________________
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, hereby certifies that a true and correct copy
of PLAINTIFF SCO'S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SEPARATE
TRIALS was server on Defendant Internation Business Machines Corporation
on the 19th day of April, 2004, by U.S. mail to:
Evan R. Chester, Esq.
David Marriot, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Alan L. Sullivan, Esq.
Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
________[signature]_________
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Authored by: PJ on Wednesday, April 21 2004 @ 06:12 PM EDT |
Please put corrections in this thread, so I can find them quickly. Thank you. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 06:15 PM EDT |
It probably refers to claims in each of the patents (a patent typically includes
several claims), not to counts in a complaint.[ Reply to This | # ]
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Authored by: star-dot-h on Wednesday, April 21 2004 @ 06:33 PM EDT |
"I used to have a sister"
Either there has a family tragedy (fratricide seems likely in this case, but
said sister has been mentioned before so I'm assuming this is not the case) or
PJ has disowned her sister.
Parodixcally I am grateful to this person for her contribution to honing the
skills PJ is now using to to such devastating effect against SCO. [ Reply to This | # ]
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- Dajavu? - Authored by: kberrien on Wednesday, April 21 2004 @ 06:38 PM EDT
- Dajavu? - Authored by: Jan on Wednesday, April 21 2004 @ 06:44 PM EDT
- Dajavu? - Authored by: corran__horn on Wednesday, April 21 2004 @ 07:53 PM EDT
- Déjà vu - Authored by: Anonymous on Wednesday, April 21 2004 @ 08:36 PM EDT
- Déjà vu - Authored by: PJP on Wednesday, April 21 2004 @ 08:43 PM EDT
- Very OT - Past tense? - Authored by: Anonymous on Wednesday, April 21 2004 @ 06:42 PM EDT
- Very OT - Past tense? - Authored by: John on Wednesday, April 21 2004 @ 06:46 PM EDT
- Very OT - Past tense? - Authored by: wepprop on Wednesday, April 21 2004 @ 06:49 PM EDT
- Very OT - Past tense? - Authored by: imgvg on Wednesday, April 21 2004 @ 06:53 PM EDT
- Very OT - Past tense? - Authored by: PJ on Wednesday, April 21 2004 @ 07:32 PM EDT
- Or someone grew up? - Authored by: darthaggie on Wednesday, April 21 2004 @ 08:10 PM EDT
- Very OT - Past tense? - Authored by: Anonymous on Thursday, April 22 2004 @ 12:48 AM EDT
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Authored by: kberrien on Wednesday, April 21 2004 @ 06:35 PM EDT |
>but they brought the AutoZone and DaimlerChrysler cases after
>filing the action against IBM
You forgot Novell, PJ. And, given SCO's public statements, they had the RH suit
comming as well.
Does anyone have a recent example of a plaintiff so unwilling to prove its case?
Delay is a Boise hallmark isn't it? Perhaps one of his cases.
And what does this say about Boise & Firm? Ok, so maybe they took a case
that was unwinable. But, would you hire an firm who took this nonsense on? If
this finds it way all the way back to MS/Sun, there is going to be a lot of
boddies along the path.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 06:44 PM EDT |
How much patience does Kimball have ? [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 07:05 PM EDT |
Well if it's logic you want ...
www.intriguing.com/mp/_scripts/witch.txt
Every time I read a judgement (which I try to avoid usually), I am impressed
with the thoroughness of the judge. It looks to me like judges have to deal
with absolutely every scrap of infomation and argument. Therefore, if I wanted
to slow down a judge so I could delay a case, I would attempt to provide as much
information and argument as I could.
I'm actually suprised that SCO's lawyers are being as civilized as they are. [ Reply to This | # ]
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Authored by: bsm2003 on Wednesday, April 21 2004 @ 07:18 PM EDT |
Kind of like selective hearing 8^).
SCO
"IBM
acknowledges that this court "has considerable power to decide
how a trial
should be conducted and broad discretion to decide
whether and how to separate
claims and issues."
IBM
"It is undisputed that the Court has
considerable power to decide
how a trial should be conducted and broad
discretion to decide whether
and how to separate claims and issues."
SCO
"IBM also concedes that this case is very complex, and that
"it may
make sense ultimately for the Court to adjudicate the claims
and issues
presented in more than one trial."
IBM
"We do not disagree with SCO's
assertion that the case is complex
(though, frankly, SCO overstates the
point).But that is not a reason
to rush to split the case. Rather, that is
exactly why this Court
should defer ruling on how precisely to try the
case."
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 21 2004 @ 08:10 PM EDT |
news.com.com is reporting that lindows is suing xandros for $750,000.
http://news.com.com/2100-7344-5195630.html[ Reply to This | # ]
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Authored by: Flower on Wednesday, April 21 2004 @ 09:32 PM EDT |
I disagree with this assessment. First, SCO makes a telling point about the
effort discovery on the patent claims will take. Currently, these claims have
not been refuted by IBM. From IBM's Response to SCO's Motion for Separate
Trials:
To support its request for a separate trial of the patent
claims, SCO argues that the patent claims will require immense discovery, at
least 18 additional months of it, and thus have to be tried separately to
prevent delay in the resolution of the non-patent claims. As we will explain
separately in our response to SCO's motion to extend the scheduling order and
unnecessarily prolong the case, there is no reason to extend the discovery
period on the patent claims (as to which IBM, not SCO, bears the burden to show
infringement).
So to date, we haven't seen IBM's counter-argument
as to why SCO is wrong and it won't take 18 months and eat up all their
scheduled depostitions to prepare for those issues. I guess my question is now
does the judge have to wait for IBM's next document to resolve this issue? If
I'm reading SCO's original motion correctly the judge only has to buy into one
of three issues - convenience, predjudice or economy. IBM simply defers the
economy issue saying we'll explain it elsewhere. In every other document we seen
the big watchphrase has been to cover all your bases. Why is this time
different?
And while SCO definately spins it so much that it would make Taz
dizzy I think they make another point that IBM doesn't focus much on why the
patent claims are related to the case at hand. SCO keeps talking about their
ABIs in linux and all so how are those claims of infringement related to
navigating program menus and the rest? Reviewing all three documents in front of
me I really wish IBM had spent more time beefing up why the patents are
pertinent.
I'm more than likely wrong in all this but looking at what's in
front of me I'm not willing to dismiss SCOs response. It's not so much that SCO
didn't hear IBM's arguments as they don't buy into them. From the response
above:
Ignoring the impact on SCO of having to conduct discovery of
both the patent and non-patent claims at the same time, IBM instead relies on
cases where courts exercised their discretion to defer ruling on motions to
separate trials. None of those cases supports the idea that a district court
must or should postpone such a decistion until after discovery. Moreover, not a
single one of IBM's cases involved patents, while numerous cases cited in SCO's
motion specifically related to separating patent claims. IBM has not endeavored
to distinguish any of these cases, all of which fully support separating the
unrelated patent counterclaims from the remainder of the litigation.
[emphasis mine]
--- Teach it phenomenology. [ Reply to This | # ]
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- The Hail Mary? - Authored by: Anonymous on Wednesday, April 21 2004 @ 09:36 PM EDT
- Patent war chest - Authored by: sjf on Wednesday, April 21 2004 @ 09:53 PM EDT
- Wait - Authored by: dkpatrick on Wednesday, April 21 2004 @ 10:07 PM EDT
- Wait - Authored by: TheMohel on Wednesday, April 21 2004 @ 10:29 PM EDT
- You're COMPLETELY WRONG - Authored by: Anonymous on Wednesday, April 21 2004 @ 11:11 PM EDT
- IBM's answer destroyed SCOG & SCOG is ignoring it - Authored by: Anonymous on Wednesday, April 21 2004 @ 11:15 PM EDT
- Wait? - Authored by: gleef on Thursday, April 22 2004 @ 12:34 AM EDT
- as to which IBM, not SCO, bears the burden to show infringement - Authored by: Anonymous on Friday, April 23 2004 @ 06:51 AM EDT
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Authored by: wepprop on Wednesday, April 21 2004 @ 10:58 PM EDT |
The voice of Baystar speaks. From the NY Times - Registration usually required.
http://www.nytimes.com/2004/04/22/technology/22sco.html?ex=1083211200&en=11a
a704a6aaf373f&ei=5062&partner=GOOGLE[ Reply to This | # ]
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Authored by: arrg on Wednesday, April 21 2004 @ 11:26 PM EDT |
As I hear more from MS and SCO I feel a little like Alice tumbling down the
rabbit hole. I guess in the end reality isn't really truth, it's more about how
many people you can convince is the truth.
---
Time is funny stuff, space has it's points too.... - Hap[ Reply to This | # ]
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Authored by: bstadil on Thursday, April 22 2004 @ 12:37 AM EDT |
Believe it or not but Baystar is pulling the plug because SCO are not focussing
on the lawsuits
They want the Unix business killed off, Well they might as
well
Info Here [ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 22 2004 @ 12:57 AM EDT |
Currently at $6.80 on Nasdaq. [ Reply to This | # ]
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Authored by: bsm2003 on Thursday, April 22 2004 @ 01:15 AM EDT |
4/20/04 37 Declaration of Josy W. Ingersoll, Esq. in Support of D.I. #35 (ft)
[Entry date 04/21/04]
<p>
Off the Yahoo board. Supposed to be on pacer I dont have access. This is for the
RH case.[ Reply to This | # ]
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Authored by: DBLR on Thursday, April 22 2004 @ 01:48 AM EDT |
Found this over at the U.S. District Court records.
0-0 Filed: 04/19/04 Entered: 04/20/04 Add party (Private)
Docket Text: Added party S2 Strategic Consult.
Is IBM adding S-2 to the counter law suite, claims?
Charles
---
Some Lawyers are just like bananas, they are all crooked, yellow and slimy.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 22 2004 @ 01:53 AM EDT |
"I used to have a sister who argued a little bit like SCO"
I hope you meant:
"My sister used to argue a little bit like SCO"
Otherwise what worries me about the report is not SCO's usual modus operandi,
but what happened to your sister, PJ!
[ Reply to This | # ]
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Authored by: RedBarchetta on Thursday, April 22 2004 @ 01:59 AM EDT |
This article has a quote from Melanie Hollands that is
worth savoring:
I wrote in February that if SCO Group could
focus on selling software and services -- not litigation -- then there would be
a chance for a real company. But that is not going to happen. This is (and
will remain) a scam stock with no assets -- just a business model based
on litigation.
I know Melanie is a (somewhat?) regular
reader of GROKLAW. Melanie, if you are reading this I just wanted to let you
know that you are of the few in the media that really understands the lack of
SCO's merits. Your articles are clear and coherent, and I now look forward to
all your future write-ups... keep up the fine work!
[ Reply to This | # ]
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Authored by: blacklight on Thursday, April 22 2004 @ 02:49 AM EDT |
"I used to have a sister who argued a little bit like SCO, although she
couldn't hold a candle to SCO in scale and daring."
The correct New York word for "scale and daring" is the Yiddish or
Yiddish-American word chutzpah, as in the young man who kills both his parents
and throws himself at the mercy of the court because he is an orphan.
"chutzpah" is probably one of those wonderful, uncannily to the point
in meaning yet untranslatable words like "Shadenfreude". The closest
English approximation to "chutzpah" that I can think of is
"effrontery".[ Reply to This | # ]
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