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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.

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