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IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment
Monday, September 25 2006 @ 09:23 PM EDT

Both sides in SCO v. IBM have filed motions for summary judgment. To be precise, SCO has filed one for partial summary judgment (which I'll have up in a minute or two) and IBM has filed several motions for summary judgment, one for each of SCO's claims and two more for good measure on two of IBM's counterclaims. In other words, it is asking the court to throw out SCO's entire case, and to grant it judgment on two counterclaims without even going to trial on those two.

We find out because SCO has filed a notice of conventional filing [PDF] of exhibits to its partial summary judgment motion. It's too long to file electronically, so we'll have to wait to read them, but most of them we have already. And it's obvious from the list of exhibits what it's about, namely what they likely feel is their strongest claim, if not their only hope, their third cause of action for breach of contract relating to Sequent. [ Update: There are more filings showing up on Pacer now, including two SCO motions for summary judgment on some of IBM's counterclaims, 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th.]

IBM has filed motions, plural, as we can tell from a motion [PDF] they filed asking for "leave to file up to three additional declarations in support of IBM's motions for summary judgment." There is also a Proposed Order [PDF]. So we are off and running.

Update 2: Here you are, the rest of the filings:

Whew. Love the last one. Hahahaha. After I digest it all, I'll explain anything needing explanation.

We also get a definitive answer to our long-ago question as to whether September 25 was the deadline to begin to file summary judgment motions or the cutoff. IBM says, "The Court's deadline for filing summary judgment motions is today, September 25, 2006, and IBM is filing motions addressing each of the claims brought by Plaintiff/Counterclaim Defendant The SCO Group, Inc. ("SCO"), as well as two of IBM's counterclaims against SCO." They didn't get back a couple of signed declarations in time, and that is why they have to ask for permission to include them. So that means yesterday was the cutoff to file any summary judgments. And that means apparently SCO has only one, while IBM is asking the court to throw out all of SCO's claims on summary judgment.

What does that mean? That if IBM were to prevail on all its motions (of course that is a rare event indeed) then the only thing left to bring to a jury would be IBM's counterclaims. That has to be SCO's worst nightmare. That would mean the only questions for the jury to decide, if they found for IBM on the rest of IBM's counterclaims, would be how bad was SCO and how much do they owe IBM?

Update 3:SCOX chart, down 18.75%, closing at 1.69.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE LLP
[address, phone, fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

_____________________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

____________________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

__________________________________

NOTICE OF CONVENTIONAL
FILING OF EXHIBITS TO SCO'S
MEMORANDUM IN SUPPORT OF
SCO'S MOTION FOR PARTIAL
SUMMARY ON SCO'S THIRD CAUSE
OF ACTION FOR BREACH OF
CONTRACT

Case No. 2:03CV0294DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

PLEASE TAKE NOTICE THAT Plaintiff has conventionally filed the original and two copies of the following documents:

1. AT&T - Sequent Software Agreement.

2. AT&T - Sequent Sublicensing Agreement.

3. David Frasure Deposition Transcript (6/8/04) at 178.

4. David Frasure BSD Deposition Transcript (12/8/92) at 113, 121.

5. Geoffrey Green Deposition Transcript (11/15/04) at 113, 130-31.

6. Burt Levine Deposition Transcript (1/19/05) at 38, 40-41, 47, 268.

7. Otis Wilson Deposition Transcript (8/25/06) at 120.

8. David Rodgers Deposition Transcript (6/10/04) at 27, 31-32, 138.

9. Roger Swanson Deposition Transcript (1/17/06) at 52, 82.

10. Thomas Cronan Deposition Transcript (12/14/04) at 40.

11. Jeffrey Mobley Deposition Transcript (1/24/06) at 50.

12. Edward Kennedy Deposition Transcript (3/3/06) at 192.

13. Declaration of Ira Kistenberg (11/12/04) ¶ 5.

14. Michael DeFazio Deposition Transcript (1/13/05) at 223.

15. Declaration of Mitzi Bond (11/4/04) ¶ 11(e).

16. Letter from Roger Swanson to Ira Kistenberg, dated May 14, 1987 (1710097859).

17. William Sandve Deposition Transcript (11/19/04) at 11.

18. Report of SCO Expert Marc Rochkind (5/19/06).

19. Rebuttal Report of SCO Expert Marc Rochkind (8/28/06).

2

20. Rebuttal Report of SCO Expert Tom Cargill (8/28/06).

These documents have not been filed electronically because:

___ it cannot be converted to electronic format

_X_ the electronic file size of this material exceeds 2 megabytes (MB)

___ the Court by order has excused electronic filing

_X_ it is exempt from electronic filing pursuant to § F(4)(e) of the ECF Policy & Procedures Manual (sealed document)

These documents have been served conventionally on all parties. DATED this 25th day of July, 2006.

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

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By: /s/ Brent O. Hatch
Counsel for The SCO Group, Inc.

3

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing was served on Defendant International Business Machines Corporation on the 25th day of September, 2006, by CM/ECF to the following:

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

Donald J. Rosenberg, Esq.
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

/s/ Brent O. Hatch

4

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

_________________________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

________________________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

________________________________________

IBM'S MOTION FOR LEAVE TO FILE
ADDITIONAL DECLARATIONS IN
SUPPORT OF MOTIONS FOR
SUMMARY JUDGMENT

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

________________________________________

Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this motion for leave to file up to three additional declarations in support of IBM's motions for summary judgment by no later than September 29, 2006.

The Court's deadline for filing summary judgment motions is today, September 25, 2006, and IBM is filing motions addressing each of the claims brought by Plaintiff/Counterclaim Defendant The SCO Group, Inc. ("SCO"), as well as two of IBM's counterclaims against SCO. Counsel for IBM had hoped to have by today signed copies of two additional declarations in support of those motions. Due to various logistical issues, counsel for IBM was unable to obtain the signed declarations today. Those declarations reinforce points made by other declarants and the submission of them would not affect the substance of IBM's arguments in its summary judgment motions. They would be filed well in advance of SCO's deadline for responding to IBM's motions, and therefore not prejudice SCO in any way. We therefore respectfully request that the Court grant IBM leave to file up to two additional declarations in support of its summary judgment motions by no later than this Friday, September 29, 2006.

DATED this 25th day of September, 2006.

SNELL & WILMER L.L.P.

/s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

2

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Alec S. Berman
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

3

CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of September, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

and by U.S. Mail, postage pre-paid to:

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

/s/ Todd M. Shaughnessy

4

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651) Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

________________________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

________________________________________

[PROPOSED]
ORDER GRANTING IBM'S MOTION
FOR LEAVE TO FILE ADDITIONAL
DECLARATIONS IN SUPPORT OF
MOTIONS FOR SUMMARY JUDGMENT

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

________________________________________

Based upon Defendant/Counterclaim-Plaintiff International Business Machines Corporation's ("IBM") Motion for Leave to File Additional Declarations in Support of its Motions for Summary Judgment, and for good cause appearing thereon,

IT IS HEREBY ORDERED that IBM may file up to three additional declarations in support of IBM's motions for summary judgment by no later than September 29, 2006.

DATED this ____ day of September, 2006.

BY THE COURT

____________________________
Dale A. Kimball
United States District Court Judge

2

CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of September, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

and by U.S. Mail, postage pre-paid to:

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

/s/ Todd M. Shaughnessy

3


  


IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment | 243 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT here
Authored by: jplatt39 on Monday, September 25 2006 @ 10:28 PM EDT
If you have any links make them clickable. Read the Post a Comment page for
further information.

[ Reply to This | # ]

Corrections here
Authored by: jplatt39 on Monday, September 25 2006 @ 10:30 PM EDT
If any...

[ Reply to This | # ]

IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment
Authored by: Anonymous on Monday, September 25 2006 @ 10:33 PM EDT
Lets just hope that all of SCOG's wookie claims are thrown out on summary
judgement and the judge leaves (if any) ones that will be argued rationally.
SCOG has no chance in this case.

[ Reply to This | # ]

More coming!
Authored by: overshoot on Monday, September 25 2006 @ 10:35 PM EDT
Hold on, PJ -- it looks like there are a lot more coming. In fact, SCOX looks to also be asking the Court to resolve the whole case at summary judgment.

Question for the legally-clued: aren't they giving up any chance of holding out these causes of action to a jury, since they concede that the matter is ripe for summary judgment?

[ Reply to This | # ]

SCO filed more than one
Authored by: Anonymous on Monday, September 25 2006 @ 10:36 PM EDT
To be precise, SCO has filed one for partial summary judgment
That just happened to be the first document to show up on PACER. Apparently SCO has not only filed motion for PSJ on its Third Cause of Action, but also motions for SJ on most of IBM's counterclaims: Second through Fifth (docket 776) and Sixth through Eighth (docket 777).

[ Reply to This | # ]

And so it begins...
Authored by: Kosh Nanarek on Monday, September 25 2006 @ 10:36 PM EDT
Sorry, couldn't help myself! (You have to be a Babylon 5 fan to get the joke)

The next few weeks should be very interesting, and entertaining.

---
"And so, it begins."

[ Reply to This | # ]

IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment
Authored by: Waterman on Monday, September 25 2006 @ 10:38 PM EDT
And now the fun begins.

[ Reply to This | # ]

Now Listening To "Ship Of Fools" By World Party
Authored by: TheBlueSkyRanger on Monday, September 25 2006 @ 10:45 PM EDT
"Drawn by the promise of the joker and the fool."

Hey, everybody!

I don't know about you, but I'm very curious what's in these requests. Do they
file everything, or can they redact them to keep us from shredding strategic
portions of the filings? Assuming, at this stage in the game, any further input
is necessary.

"Avarice and greed are gonna drive you over the endless seas."

PJ hinted that a clean sweep on the nine claims IBM is requesting would be a
pretty tall order (I'm figuring the two counterclaims are gravy). What do you
think we're looking at realistically? If anything gets to jury and SCO starts
their tapdance, what will happen? IBM is too good to not get anything thrown
out, but since SCO wants a jury of technopeasants that they can razzle dazzle
'em and they'll never catch wise, how much danger is Linux still in?

"I'm sure you'll build your Soddom like you knew you would."

Suppose IBM doesn't get enough to get everything tossed, or not enough that a
victory at jury trial is a sure thing. Can Novell then fast track it's
litigation (or IBM stall its) to knock SCO out before it gets to that point?
I'm very nervous about a jury trial, since it seems more of a dice roll than
letting the judge handle it.

Also, could the requested summaries on the two counterclaims be part of a
defensive strategy in case this goes to jury? "Hey, we have a decision on
these two claims, that undermines the assertions you are hearing today."

"All aboard...."

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

SCOX
Authored by: Anonymous on Monday, September 25 2006 @ 10:53 PM EDT
I guess that partially explains the 18% drop in SCOX share price at the end of today.

[ Reply to This | # ]

IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment
Authored by: Anonymous on Monday, September 25 2006 @ 10:59 PM EDT
Did I read it wrong or does SCO indicate it is SEALed as well as overlenth?


Knowledge is like money, to be of value it must circulate.
Louis L'Amour- Education of a wandering man

[ Reply to This | # ]

This is actually very clever
Authored by: Anonymous on Monday, September 25 2006 @ 11:44 PM EDT
There are now more than 20 summary judgement motions before the court. There is
no way they will be resolved before the trial (heck, at the rate this court is
going, we'll be lucky to see the judgement this decade!). So there are two
possible outcomes:

1. Trial begins and PSJs are denied as moot.

2. Trial is delayed until Kimball rules on PSJs.

In either case, SCOX wins. Say what you will, but BSF lawyers are incredibly
smart (and sleazy). They managed to drag this on for 3.5 years!!! without a
shred of evidence. I'm impressed. And disgusted.

[ Reply to This | # ]

Spoliation of Evidence
Authored by: Aim Here on Monday, September 25 2006 @ 11:45 PM EDT
So THIS was what SCO's spoliation of evidence claim amounted to. All that fuss
they made in the press, and they use it to ask the judge to sanction IBM by umm,
inferring that errr, IBM looked at AIX/Dynix source code when contributing to
Linux?

This heinous act of evidence spoliation by IBM has really advanced SCO's case by
allowing the court to infer what IBM already admitted years ago.

In fact, IBM should file a memorandum to oppose this on the grounds that IBM
didn't just look at AIX source code, it put great flaming gobs of AIX source
code in Linux. And it's PROUD of it, and the court should jolly well infer that
instead!

[ Reply to This | # ]

SCO's Motion for Partial Summary Judgemen on SCO’S 3rd Cause of Action for Breach of Contract
Authored by: mwexler on Monday, September 25 2006 @ 11:58 PM EDT
I noticed that this motion just contains a single paragraph asking for summary
judgement. Wouldn't it be normal to layout a legal argument and a set of facts
to support this?

[ Reply to This | # ]

Lots of material..
Authored by: Anonymous on Tuesday, September 26 2006 @ 12:08 AM EDT
This is going to take quite some time to digest.

Not the court, they take gobs of time for even the slightest thing, but for US!

[ Reply to This | # ]

Down She Goes!
Authored by: sonicfrog on Tuesday, September 26 2006 @ 01:21 AM EDT
Anyone notice SCOX stock value at the closing bell??? $1.69 per share. I was
wondering what may have triggered the drop. I just wonder, how low does the
stock price have to go before the board gives Darl the boot?

[ Reply to This | # ]

Hilarious
Authored by: Anonymous on Tuesday, September 26 2006 @ 01:39 AM EDT
The $1.69 per share is so funny, second only to "SCO's Motion for Relief for IBM's Spoliation of Evidence"

[ Reply to This | # ]

Transcribing
Authored by: feldegast on Tuesday, September 26 2006 @ 02:04 AM EDT
I have sent PJ the HTML for "Exhibits to Supplemental Declaration of Todd
Shaughnessy" IBM-774EX598.pdf, if there are other scanned documents (not
electronically filed and thus text can't be extracted quickly), conversion to
HTML/Text would help :)

---
IANAL
My posts are ©2004-2006 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Caldera Knew What Was in Linux - Because Caldera Put It There! :-)
Authored by: Zarkov on Tuesday, September 26 2006 @ 02:35 AM EDT
From the declaration of Ralf Flax: 27. Caldera knew exactly what was in the UnitedLinux code... 29. While employed at Caldera, I was aware that this material was present in Linux. i know so because of my familiarity with Linux and also because Caldera incorporated it into its Linux products. Ohhh dear!! Tsk... pity about the billions SCO wont get....

[ Reply to This | # ]

  • Three pounds of Flax ? n/t - Authored by: Anonymous on Tuesday, September 26 2006 @ 02:56 AM EDT
  • More - Authored by: DaveJakeman on Tuesday, September 26 2006 @ 06:44 AM EDT
    • More - Authored by: Artiken on Tuesday, September 26 2006 @ 10:50 AM EDT
  • Flax -> Flaxa - Authored by: Anonymous on Tuesday, September 26 2006 @ 12:58 PM EDT
This has made my day - thanks PJ!
Authored by: SilverWave on Tuesday, September 26 2006 @ 03:35 AM EDT
Off to work with a song in my heart.

And how long till SCOG is penny stock? :D

---
GPLv3: Eben Moglen explalined this well the new DRM clause just says that you
can't use technology to add restrictions that the licence doesn't allow.
coriorda

[ Reply to This | # ]

Summary of causes of action at issue
Authored by: Anonymous on Tuesday, September 26 2006 @ 07:33 AM EDT
First, I apologize for my earlier comment with IBM 11, SCO 1. SCO actually had
filed a few more, but they hadn't turned up on Pacer at the time that I made
that comment.

Anyway, by way of contrition, here is a summary of the causes of action, and who
has filed SJ motions on each. (n.b. this is necessarily incomplete as I don't
yet have all the IBM info)

Quatermass
IANAL IMHO etc.

[ Reply to This | # ]

Red Dress Fund?
Authored by: Anonymous on Tuesday, September 26 2006 @ 08:15 AM EDT
PJ should setup a "Red Dress Fund"; She may need one in a hurry!

How can PJ wear it in public you ask?
I think there should be a "PJ coming out" where PJ can where her red
dress, and hundreds of other women will wear the same color dress! (I am the
real PJ name tags?)

[ Reply to This | # ]

IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment
Authored by: shiptar on Tuesday, September 26 2006 @ 09:09 AM EDT
Will this stuff get very far considering Novell's motion to pwn SCO's assets?

Or is it kind of like a turtle race and we can't really tell which will make it
to the finish line.

[ Reply to This | # ]

IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment
Authored by: Anonymous on Tuesday, September 26 2006 @ 09:26 AM EDT
I'm confused... I can't find anywhere in all this where it indicates what IBM's
motions for summary judgement actually are. The article says they've asked the
court to throw out SCO's entire case and rule on two counterclaims, but there's
no indication in the article where this information even came from, let alone
the content of the paperwork - only SCO's filings and IBM's requests to file
additional stuff are here.

What am I missing?

Stuart.

[ Reply to This | # ]

So what happens now?
Authored by: Anonymous on Tuesday, September 26 2006 @ 09:28 AM EDT
IANAL, but from what I've learned here I think that the following happens:

1. Each side get to file responses to the other sides psj motions.

2. Then each side gets to file replies to the others responses?

Am I on track with this understanding of the process?

[ Reply to This | # ]

Sheer volume?
Authored by: CnocNaGortini on Tuesday, September 26 2006 @ 09:44 AM EDT
_X_ the electronic file size of this material exceeds 2 megabytes (MB)

If this is text they're submitting (even with formatting) -- as distinct from scanned images -- over 2 Mb sounds like a lot to me. (IIRC that's about one third of the size of the Christian Bible.)

Could this in part be a delaying tactic in itself?

[ Reply to This | # ]

Can Kimball actually rule now?
Authored by: gnutechguy99 on Tuesday, September 26 2006 @ 10:12 AM EDT
Questions:

Can Kimball now actually issue rulings?

Could he issue a ruling at the Oct 24th hearing?

What delay tactics are left for SCOX?

[ Reply to This | # ]

GAAACCKKKK!!!
Authored by: Steve Martin on Tuesday, September 26 2006 @ 10:24 AM EDT
What a time to lose my home Internet connection to a storm!

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"

[ Reply to This | # ]

Two IBM declarations or three?
Authored by: Anonymous on Tuesday, September 26 2006 @ 10:42 AM EDT
In the first paragraph, they ask for leave to file up to three extra
declarations.

In the second paragraph, they say they're missing two declarations that they
wanted, and ask for leave to submit two late declarations.

Maybe a third declaration showed up just in time to be submitted with the
motions, and they missed fixing one place in the letter?

[ Reply to This | # ]

This shouldn't be a surprise at all
Authored by: Anonymous on Tuesday, September 26 2006 @ 10:56 AM EDT
Although it's nice to see it in black and white, the PSJ motion from IBM
shouldn't really surprise anyone.

Haven't we been expecting the entire case to covered by them?

[ Reply to This | # ]

Exhibit 598, declaration of Ralf Flaxa. and loss of credibility of SCO experts
Authored by: jdg on Tuesday, September 26 2006 @ 11:55 AM EDT
The exhibit 598, declaration of Ralf Flaxa, contains statements of an earlier
period then IBM/Monterry that contradict statements from SCO's experts. Does
this type of contradiction on one point undermine the entire testimony of the
expert because the credibility is lost (how can they be an expert if they did
not know these "facts", facts that are from newSCO and its
predessors-in-interest?

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

[ Reply to This | # ]

IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment
Authored by: Anonymous on Tuesday, September 26 2006 @ 12:10 PM EDT
I'm very very eager to see the actual memorandum in support of of these
motions, the motions themselves are very very minimal in terms of content...

Please race them online whenever they hit pacer (they should hit pretty soon I
think).

[ Reply to This | # ]

patent filing is disclosure
Authored by: mossc on Tuesday, September 26 2006 @ 12:44 PM EDT
From exhibit 599 supplemental declaration of Roger C. Swanson (section 8.):
Because Sequent understood that the Software Agreements did not require Sequent to hold Dynix/ptx methods developed by Sequent in confidence for AT&T it was free to apply for patents related to such Dynix/ptx methods and thus disclose such methods to the public

I think this covers a very important point. TSG's case depends on an interpretation of the original contracts that restricts licensees from disclosing anything they develop that touches any Sys V implementation. All patent applications disclose methods and concepts.

I know of no prior examples of AT&T or any possible successor objecting to patent applications by licensees of their own methods in Unix. This strongly supports IBMs interpretation.

Chuck

[ Reply to This | # ]

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