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IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Friday, October 07 2005 @ 12:11 AM EDT

As you know, SCO has filed a motion with the court, asking for permission to take 25 more depositions. IBM has now filed its Memorandum in Opposition to SCO's Motion for Leave to Take Additional Depositions [PDF], and it's a breathtakingly bold chess move.

SCO argued in particular that IBM's complex patent counterclaims made it essential that it have more depositions. I thought they kind of had a point. IBM maybe does too, and apparently it smells more attempted delay on SCO's part, and that has got to be a nauseating prospect. Anyway, if SCO's game is delay, delay, delay, what should IBM's counterthrust be?


SCO foreshadowed that it intended to bring a motion to separate the counterclaims from the rest of the case. That's not so appealing from IBM's standpoint, since it kind of doubles the time this thing will drag on, by creating a second case out of this one, and discovery on the second case begins from the beginning. Yipes. My grandkids would have to cover this case someday for Groklaw. Not that I have any. But really, I can't imagine still covering SCO v. IBM for three more years. Can you? We'll all go nuts with fury.

IBM can save more money by bringing this farce to an end quickly than it can possibly get from SCO in damages from those counterclaims or royalties from a licensing arrangement, since SCO's sales have been careening wildly downward, so IBM has offered to drop the counterclaims in order to speed things along. IBM would like to stick to the current schedule. Here's IBM's footnote 1:

While IBM continues to believe that SCO infringed IBM's valid patents, IBM agreed to withdraw its patent counterclaims to simplify and focus the issues in this case and to expedite their resolution. The little discovery that SCO has produced regarding IBM's patent claims makes clear that there is insufficient economic reason to pursue these claims. Since SCO's sales have been, and are, limited, a finding of infringement would yield only the most modest royalty or award of damages and would not justify the expense of continuing prosecution of these claims.

Here's a simple rule of litigation. You never, ever offer to drop anything you think you'll need for victory or to make yourself whole. Litigation is always a cost-benefit analysis. You have to have the prospect of a sizable enough win to pay your lawyer, or you will find it hard to get one, or, like Boies Schiller, the lawyer will want its money up front. IBM did the math, and SCO isn't looking like deep pockets any more, is it, now that Boies Schiller has drained them of pretty much all they had? So, IBM's practical analysis apparently was that it's worth more to get the thing over with on time than to go after counterclaims against a defendant with no money in its pocket to pay damages or royalties, even when IBM won. Plus, there is some strategy here too. Sometimes in chess, you'll let a pawn be sacrificed to set up a checkmate.

So, IBM evidently doesn't think it even needs the counterclaims to be victorious, and IBM is likely even more sick of discovery, and of SCO, than we are. Besides, patent litigation is expensive and may I say it, boring? Only SCO desperately clings to discovery with all its might. You might too, if you were afraid of the ultimate outcome. IBM, having no such fears, calls SCO's bluff. SCO says it needs 25 more depositions to deal with the counterclaims? Fine, IBM counters. We'll drop the counterclaims. *Now* what do you need, you whiney little phoney?

Oops. That last is probably my inner child coming out, not IBM talking. They wouldn't say that.. . . Maybe under their breath.

This won't be heard tomorrow, obviously, since SCO gets a further opportunity to respond. I am looking forward to that immensely.

Here's the thing. In patent infringement cases, all you can get is money. That's about all it's ever for. Even compelled licensing is about the money. There is no money from a plaintiff that has burned through its millions, handing it all over to lawyers chasing a now-popped bubble of a scheme. Oops. Did I say scheme? That doesn't seem like the right word. Did I mean to write scam? No, I probably meant to write dream. That's it. A popped bubble of a dream. Ah! those fading daydreams of second homes -- nay, castles! -- and undeserved millions, just from cynically hitching a piggyback ride on the back of the rising star, Linux. I guess we will get to find out from SCO the answer to poet Langston Hughes' question in his poem, "Dream Deferred":

What happens to a dream deferred?
Does it dry up
Like a raisin in the sun?
Or fester like a sore--
And then run?
Does it stink like rotten meat?
Or crust and sugar over--
like a syrupy sweet?
Maybe it just sags
like a heavy load.
Or does it explode?

I know. The poem isn't about SCO, because its dream is dead, not deferred. Maybe it's more about IBM, who surely didn't expect to still be asking SCO, three years later, what code are you talking about here?

I can't help but remember when all this began, and SCOfolk thought they were going to get wildly rich from playing the bully. Now, like a third-world country too poor to pay off its debts and so forgiven its crushing debt, there being no other practical option, SCO does not have to face the consequences of infringing IBM's patents, as alleged in IBM's counterclaims. That doesn't mean it doesn't have to face the music. It does -- Lanhan Act claims and copyright infringement regarding the GPL and all the many other counterclaims IBM still holds in its hand still hanging over SCO's head -- and if IBM's chess move plays out as IBM hopes, it will be sooner than SCO wants, right on schedule.


IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions | 215 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
My take is the same
Authored by: jdg on Friday, October 07 2005 @ 12:21 AM EDT
My take is the same. IBM is cutting the legs out from SCO's arguments. I think
that they relied on the patents as their primary thrust; now it is gone.

SCO is trying to appropriate the "commons"; don't let them [IANAL]

[ Reply to This | # ]

IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Authored by: newton on Friday, October 07 2005 @ 12:24 AM EDT
there being no other practical option, SCO does not have to face the consequences of infringing IBM's patents, as alleged in IBM's counterclaims.

That's not completely true. SCO does not have to face the consequences of infringing IBM's patents right now.

If there's any life left in them after this case has finished, there's absolutely no reason why the Nazgul can't file for patent infringement in a new case.

[ Reply to This | # ]

Corrections Here
Authored by: jplatt39 on Friday, October 07 2005 @ 12:25 AM EDT
If any.

[ Reply to This | # ]

OT Here
Authored by: jplatt39 on Friday, October 07 2005 @ 12:29 AM EDT
If you have a link, you know the drill. If not, read the explanation for HTML
on the posting page. Make sure you are posting in HTML Formatted Mode, and for
a clickable link use <a href="">Like this

[ Reply to This | # ]

IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Authored by: Anonymous on Friday, October 07 2005 @ 12:50 AM EDT
I am glad to see that IBM did not drop Lanham act violations.

[ Reply to This | # ]

Dream dead, not deferred
Authored by: Fogey on Friday, October 07 2005 @ 12:58 AM EDT
Well PJ, in that case maybe we need different poetry, (with another apology to
Lewis Carroll.) An excerpt from "Jabber-Wookiee"

One, two! One, two! And through and through
The Nazgul's pen went snicker-snack!
Their Dream was dead, and with its head
He went galumphing back.

Old age and treachery ALWAYS
beats Youth and enthusiasm!

[ Reply to This | # ]

The SCOx spin doctors will yet have their day
Authored by: DaveF on Friday, October 07 2005 @ 01:24 AM EDT
The SCOfflaws will spin this for all it's worth; you can bet your sweet bippy on
that. We all know that this is the end of the beginning of the beginning of the
end for SCOx but I can hear the spin already:

"Our aggressive stance in the litigation against IBM has forced them to
admit that their patent infringement claims were completely spurious and
motivated only to delay the proceedings," said SCO CEO Darl McBride.
"Now that they've seen the discovery, they realise that their case is lost.
Their withdrawal of the patent claims is simply the first step in the total
unravelling of IBM's case. The case has been restored to its original, sensible
configuration and we look forward to a speedy resolution before the jury."

When's the next conference call or press conference? I wonder how effectively
the painters will paint the stock tomorrow.

Imbibio, ergo sum

[ Reply to This | # ]

Did you think this is what Bois thouhgt IBM would do?
Authored by: Anonymous on Friday, October 07 2005 @ 01:32 AM EDT
I wonder if this was smart thinking on SCO's part to get this part dropped. Did
they anticipate what IBM would do?

[ Reply to This | # ]

Who is infringing IBM's patents?
Authored by: Anonymous on Friday, October 07 2005 @ 01:33 AM EDT
SCO or Novell?

As we have seen in SCO vs Novell, it appears that SCO doesn't actually own much
of anything so how could they be infringing IBM's patents? SCO is only acting as
Novell's agent with regards to the SYS V licenses.

If IBM were to press their patent counterclaims, could SCO find a way to drag
Novell into the fray or at least pass the buck? The result would be IBM suing
their ally in the battle against SCO. I'm sure SCO would like that.

Anonymous (The most prolific writer ever)

[ Reply to This | # ]

IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Authored by: Anonymous on Friday, October 07 2005 @ 02:16 AM EDT
Maybe IBM dropped the patent counterclaims because if Novell's countersuit goes
anywhere, SCO is going to be all out of cash pretty soon.

[ Reply to This | # ]

Nice theory, but
Authored by: Anonymous on Friday, October 07 2005 @ 03:13 AM EDT
Maybe the reason IBM dropped the patent claims is they don't expect to get a
brass farthing from SCOG.

Or maybe, just maybe, it's because they finally have the smoking gun leading
back to Microsoft, where the pockets are very, very deep indeed?

[ Reply to This | # ]

OT poetry
Authored by: inode_buddha on Friday, October 07 2005 @ 03:30 AM EDT
Just because I'm in the mood, could I offer some Robert Frost, an old favorite
of mine:

In particular, "The Road Not Taken"

Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

In what Bizarro World is this a good thing?
Authored by: Anonymous on Friday, October 07 2005 @ 04:26 AM EDT
The only inference I can take from this is that IBM's resolve is crumbling. It
bolsters SCO's image and claims, and might even net them more speculative
under-the-table funding to keep this farce going.

No, I don't take your view on this at all.

[ Reply to This | # ]

Forcing their hand
Authored by: AH1 on Friday, October 07 2005 @ 04:30 AM EDT
I believe that IBM is just trying to put SCO out of everybody's misery. I'm
beginning to think that all parties (except SCO) on both sides of this dispute
would be much happier if SCO just went away.
IBM wants SCO gone because this case could drag on for another three years.
Even IF IBM was awarded damages SCO will end up in bankruptcy and IBM, at best,
will end up with pennies on the dollar from the settlement.
Novell wants SCO gone for many of the same reasons that IBM does. Novell is
also likely to end up with any questions related to WHO actually owned the
copyrights decided in their favor by a bankruptcy judge.
Autozone JUST WANTS SCO OUT OF THEIR LIFE. After all they tried to get rid of
them when they dumped SCO Unix in the first place.
Red Hat would be happy to see SCO disappear because the questions about
"stolen code" end up reverting back to Novell, or to any poor sucker
who is dumb enough to buy up SCO's "valuable intellectual property" at
pennies on the dollar. (That IP is still overpriced at pennies on the dollar.)
On the other side, Boies Schiller wants SCO to disappear because they know that
they have a whole series of loser cases and losing that many high profile cases
isn't good for your reputation.
Sun Microsystems wants SCO to disappear mainly because SCO doesn't seem to be
able to keep its mouth shut and SCO does a good job of giving SUN unwanted
publicity by comparing themselves with SUN, or by mentioning that SUN is one of
their licencee's.
Microsoft wants SCO to disappear because they have outlived their usefulness.
Furthermore, Microsoft's behind the scenes involvement with this case may
actually be backfiring on them because blogs like Groklaw are starting to pay
close attention to Microsoft's antics.

[ Reply to This | # ]

"... like a third-world country too poor to pay off its debts... "
Authored by: cybervegan on Friday, October 07 2005 @ 04:56 AM EDT
Except, third-world countries in debt didn't get there by threatening their
creditors with legal action in the hope of getting rich off share games and the
hope of being bought out or getting a huge court bounty. There may have been
weaseling, and dreams of undue profits, but...

Despite the known (and postulated) issues in poor third-world countries, their
debt problems are rather different.

I know it's only an analogy - it just doesn't work well for me: I feel it
somewhat insults poor third-world nations. Indeed, some of them are
"culpable" - corrupt even - but I'm not sure it's as dark and cynical
in most cases as with SCOG. Maybe I'm just "too soft" on them, or
maybe they just shouldn't have been given the opportunity to foster corruption
in the first place?

I would rather have said "Like a gambler in debt to the Casino, who has no
means of paying them back..." or some such - but I'm not as eloquent as
you, PJ.

Having said all that, I'd like to add "Bravo, IBM" - that is indeed a
bold move. "Ok - if it'll speed things along a bit, then we don't care
about your infringements" - I like that!

However, don't I recall that IBM said these counterclaims were mandatory or
something? It would have been a looong time ago, though.


Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Authored by: kbwojo on Friday, October 07 2005 @ 05:18 AM EDT
I think IBM's lawyers should play a practical joke on SCO's lawyers. IBM's
lawyers could walk up to SCO's lawyers before the next hearing starts and tell
them "IBM would like to settle this case". Wait a minute for all SCO's
lawyers to breath a sigh of relief and then say "Just kidding" and
walk away.

I know this would never happen, but I still get a little satisfaction by just
imagining what the look on SCO's lawyers faces would be like if this happened.

[ Reply to This | # ]

IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Authored by: timycc on Friday, October 07 2005 @ 07:27 AM EDT
I suppose IBM's counterclaims against SCO are software patents. Do'nt forget how
we hate software patents. I am glad IBM does not need to use them. Using nuclear
weapon against your enemy is still an evil deed, although you may tend to
forgive yourself.

[ Reply to This | # ]

SCO stuck in a rut
Authored by: Anonymous on Friday, October 07 2005 @ 08:04 AM EDT
We've all speculated that one of the main legs of SCO's strategy was to delay
delay delay while they worked to extort money out of Linux users and slow Linux
adoption (for the benefit of certain unnamed Linux competitors). However, SCO
has failed to convince the vast majority of Linux users that they should send
SCO money, and the adoption rate of Linux continues to grow without any
meaningful slowdown. So why are they still trying to delay? Is it just that
it's all they have (likely)? Or maybe it's all they know to do (also likely)?
Or is it something else?

[ Reply to This | # ]

I can see the SCO spin now...
Authored by: Anonymous on Friday, October 07 2005 @ 08:10 AM EDT
"IBM drops patent counterclaims against SCO" An SCO spokesperson
stated "Yes, IBM finally realized that SCO does not improperly implement
any of IBM's patents. Sadly, the same cannot be said for IBM's use of SCO

SCO stock heads above $5 per share for the first time in over 12 months...

[ Reply to This | # ]

IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Authored by: Rasyr on Friday, October 07 2005 @ 08:16 AM EDT
I recently had a thought....

What if this is more than just calling SCO's "bluff". What if IBM is
going to withdrawal those claims, and then come back later and refile them.

The SCO deal with their own lawyers only covers current lawsuits, not future
ones. This means that if IBM does refile them, it is a new lawsuit and not
covered by that deal.

This may be just the first (side)step in IBM going for SCO's jugular. Especially
since a new lawsuit would be patent infringement, and not related to SCO's
current case (which is what SCO claims...), SCO would not be able to get it put
on hold like they have the redhat case (IMHO).

Death of a thousand paper cuts???

[ Reply to This | # ]

No Settlement In Sight
Authored by: John Hasler on Friday, October 07 2005 @ 08:27 AM EDT
In my opinion IBM dropping the patent claims (perhaps not all that strong to
begin with) is evidence that they have absolutely no intention of settling. If
they did they would not give away a such a bargaining point.

[ Reply to This | # ]

IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Authored by: Anonymous on Friday, October 07 2005 @ 10:12 AM EDT
IBM just wants to get back work - they got a lot of McDonalds to switch over to

[ Reply to This | # ]

IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Authored by: Zak3056 on Friday, October 07 2005 @ 11:01 AM EDT
I'm feeling very pessimistic over this. The way the case has gone so far, the judges have basically given SCO everything they've asked for, even when it makes little sense, or is extremely burdensome for IBM... and SCO still has not produced any evidence that IBM has actually done anything wrong!

My money says that what is about to happen is the Judge agrees to dismiss the patent claims, and gives SCO their extra 25 depositions. It'll be par for the course.

[ Reply to This | # ]

Who cares what we think...
Authored by: Anonymous on Friday, October 07 2005 @ 11:22 AM EDT
Do you think the judges will read anything into this? In the end they have be
controlling this for a long time, do you think they will see this as a plus or
minus for IBM?

[ Reply to This | # ]

How might this affect today's hearing?
Authored by: Anonymous on Friday, October 07 2005 @ 11:36 AM EDT
PJ pointed out that this filing comes too late to be addressed at today's

But will it affect the way the parties behave at the hearing? SCO certainly
will have read it by now.

[ Reply to This | # ]

Another possible bonus?
Authored by: Anonymous on Friday, October 07 2005 @ 02:27 PM EDT
Correct me if I'm wrong but doesn't IBM say they infringed their patents by
breaching the conditions of the GPL and then continuing to sell/distribute a
Linux distro?

Since it seems there's mountains of documentary evidence re the distributing,
and when they did it, and when they breached the GPL - wouldn't that make the
case purely about the validity and enforceability of the GPL?

I know the GPL has been tested in court - but not in a way that would be as big
and final (as in case-law being made) as this would be.

[ Reply to This | # ]

Any News from Today's Hearing?
Authored by: Anonymous on Friday, October 07 2005 @ 03:07 PM EDT
I'd like to know what happened to SCO. Hopefully their guts were cut out.

[ Reply to This | # ]

Has the opposition already won?
Authored by: Anonymous on Friday, October 07 2005 @ 03:08 PM EDT
I started following this case about two years ago. During this time, the
purpose of the original lawsuit has been cast in many ways: a stock scam, an
attempt to bilk linux users, an attempt to milk IBM, an attempt to delay the
Linux and Open Source movement.

I personally believe that the main purpose was to delay Linux and the open
source movement, although the others are all good candidates, and may have
played some roll. This fits niceley with SCO's tactics - delay, delay, delay.

So my question is: Have they won already? Linux has not yet taken significant
market share, and Microsoft has been able to substantially retool Longhorn,
which is now in beta (pre-beta?) release.


[ Reply to This | # ]

SCO Spin Machine
Authored by: Anonymous on Friday, October 07 2005 @ 06:25 PM EDT
On the bright side (for SCO, at least), it can wind up its media machine and
trumpet this as a win. "See! IBM is running scared! They're backing down on
their claims! The end is nigh!!"

[ Reply to This | # ]

IBM has "real" lawyers
Authored by: AllParadox on Friday, October 07 2005 @ 08:19 PM EDT
At some of the firms where I used to work, we made fun of the "silk
stocking" firms.

A "silk stocking" lawyer with six trials under his belt was considered
highly experienced.

I quit counting at fifty.

The upshot was that most of those lawyers did not know how to handle the
courtroom, and how to handle the tactics and strategy. We loved to go up
against them. If we could survive the avalance of motion practice, they would
fall apart at some later stage of the proceedings. Incompetence from sheer lack
of experience was their downfall.

There are times when the lawyer must take control, evaluate the situation, and
do things that are simply outside the game plan, outside the expected. It is
what distinguishes the outstanding lawyer from the merely "adequate"
representation. This is above and beyond the outstanding quality of the
representation that IBM has received so far.

You can be sure that this step of dismissing the patent claims originated with
the IBM trial lawyers. You can be sure that they persuaded IBM top brass that
this was the only way to go. As good as these lawyers are, they may have even
persuaded the top brass that it was the top manager's own idea.

It required exemplary courage, and insight, to take this step.

Anyone with more than half a wit on the side of "The SCO Group" should
be wholly terrified at this point, and I mean managers and lawyers.

IBM means business. Cravath, Swaine, and Moore mean business, and they are
equipped with all the necessary tools to attain every goal they seek.

There is nowhere to run to, and nowhere to hide. This juggernaught will not be
stopped by anything "The SCO Group" can do.

This single action by IBM gives more hope about this case than I have had in a
long time.

It simply makes my day.

PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

[ Reply to This | # ]

SCO wins again.
Authored by: Anonymous on Friday, October 07 2005 @ 10:46 PM EDT
SCO wins again.

No seriously folks not Trolling but SCO did win - again.

Lets see how.

What is SCO game plain?

Well here we have to do a little supposition first.

Lets suppose that Ray Nordic had some information from his
days at Novel about the Novel / BSD cases that taken on
its on is very damning to IBM but taken in full context of
all other issue has little meaning.

No suppose Yurro obtained this information. How? Think
back in time to events involving Canopy and let your
imagination do the walking.

Now with these parameters what would SCO's game plan be?

Get verification of known information from IBM so that IBM
could not refute it.

Keep IBM and the court system from knowing what SCO is
suing over as long as possible. This was at one time call
trial by ambush.

If the above is true then SCO succeeded in having
everybody chase themselves around in circles, congratulate
them self on limiting SCO to 10 depositions instead of 25
when all SCO wanted was zero, and generally making a fool
of them self without finding out any thing about SCO basic

My prediction is that SCO will not produce any real
meaningful discovery until the last minute of the last day
that SCO can wiggle for discovery and that SCO will keep
wiggling for more time and more discover until and past
the time that SCO has confirmation of whatever it is that
SCO knows but can not directly prove with out IBM's
unwilling corporation. The object of going past the time
of confirmation is simply to keep IBM from guessing what
it is SCO is up to not because the additional discover
will prove useful.

So looking at this from that prospective SCO wins again.
SCO got more discovery and IBM doesn't have a clue what
the case is really about.

[ Reply to This | # ]

  • Game plan? - Authored by: Anonymous on Saturday, October 08 2005 @ 05:59 AM EDT
SCO loses again!
Authored by: Anonymous on Saturday, October 08 2005 @ 01:40 PM EDT
The only thing SCO can win is delay, delay, delay.

Lately, SCO has not been able to delay, delay, delay.
Judge Kimball and Judge Wells are GETTING IT - understanding what SCO is
trying to do.

Novell's countersuit is going to CRUSH SCO. SCO simply has no case, no
evidence to back up its side.

IBM is going to CRUSH SCO. SCO again simply has no case, no evidence to
back up its side.

Linux has GROWN TREMENDOUSLY as a result of SCO's antics. SCO's antics
have simply given Linux a huge amount of publicity. No one fears an SCO
lawsuit any longer. Linux is clearly seen as an alternative to Microsoft's
monopoly. Witness how Microsoft's world has started crumbling, not that
people are getting serious about the open document specification. IBM is
making a huge amount of money from Linux. Red Hat has been very
profitable as a result of Linux. Linux, Linux, Linux is on people's minds.
Once Novell completely switches it's own desktop computers to Linux, watch
out! Novell can give you a complete Desktop Linux environment at a much
less expensive price than Microsoft can ever be.

The clock is ticking.
The timebomb is SCO's deadline to show it's evidence.

Wow! This should be a lot of fun!
Where's the special barbecue sauce?

[ Reply to This | # ]

Chess moves
Authored by: Anonymous on Sunday, October 09 2005 @ 05:26 PM EDT
If law suits are chess, how's this for a move:

Drop the counter-claims, and if nothing prevents reasserting them later, use
them if SCOX were to be taken over. Think a corporate monopoly with tons of
money... Even if the contract were written to eleminate the libility for the
claims, Darl wouldn't see a red cent. SOMEONE keeps the libility if IBM moved
quickly enough.

One might claim "failure to mitigate damages", however, if SCO (the
OS) kept using the patents, IBM would still be able to press a claim of one sort
or another.

[ Reply to This | # ]

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