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To read comments to this article, go here
IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective
Thursday, November 13 2003 @ 03:26 PM EST

IBM has filed a Motion to Strike Affirmative Defenses and a Memorandum in Support with the court. They are providing SCO a lesson in the law. If you charge someone with fraud, they point out, you are supposed to tell exactly what the facts are that constitute the fraud. Otherwise, your affirmative defense is defective:

"Under Rule 12(f), the Court 'may order stricken from any pleading any insufficient defense'. Fed. R. Civ. P. 12(f). Rule 9(b), in turn, requires that, '[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.'

"As detailed in IBM's Memorandum in Support of Motion to Strike Affirmative Defenses, SCO's Fifth, Fifteenth and Nineteenth affirmative defenses -- which allege fraud and inequitable conduct -- are improperly pleaded under Rule 9(b) and thus should be stricken. Specifically, SCO fails to allege any facts concerning the fraud that IBM is alleged to have committed. Under any interpretation of Rule 9(b)'s requirements, therefore, SCO's affirmative defenses are defective."


I guess SCO is so used to making accusations without any proof in the media, they forgot that in a court of law, you do have to state your case "with particularity". An hors d'oevres from the Memorandum:

"SCO may not properly accuse IBM of fraud in the hope that it may be able to cobble together some evidence of alleged wrongdoing during discovery. . . .

"IBM should not have to expend any effort in this case defending against SCO's claims of fraud or inequitable conduct, when SCO has not offered even the barest of specifics about its allegations."

In case you forgot, here are the three affirmative defenses from SCO's Answers to IBM's Amended Counterclaims that IBM is asking to have stricken:

"FIFTH AFFIRMATIVE DEFENSE
"IBM's claims are barred by fraud, illegality, collusion, conspiracy and/or lack of clean hands.

"FIFTEENTH AFFIRMATIVE DEFENSE
"On information and belief, one or more of the copyrights at issue is, or may be, unenforceable by reason of IBM's inequitable conduct, acts or omissions before the United States Patent and Trademark Office.

"NINETEENTH AFFIRMATIVE DEFENSE
"On information and belief, the #746 Patent or one or more of the other patents at issue is, or may be, unenforceable by reason of IBM inequitable conduct, acts or omissions before the United States Patent and Trademark Office."

If IBM prevails on this motion, then it won't have to discuss them any further and they are out of the trial. Also out of discovery. Ooh, those smoothies at IBM. Why bother to fight like cats and dogs, when you can just go for the jugular?

You can read the Federal Rules of Civil Procedure 12(f) here. Rule 9(b) is here. Remember how I keep telling you the law is like chess, only with people? A series of seemingly small, quiet moves, and then finally, if you've researched and planned well, suddenly they are on the run. IBM has begun its calculated moves.


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