decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
More Delay in SCO v. IBM -- on Briefs on IBM's Motions RE Breach of Contract and Counterclaim for Copyright Infringement
Friday, October 15 2004 @ 06:00 AM EDT

More delay in SCO v. IBM, but it's by stipulation, so both sides have agreed to it and the judge has issued an Order. It involves IBM's two upcoming motions, one on the breach of contract claims and the other regarding IBM's counterclaim for copyright infringement, which is the one about the GPL.

These two motions are asking for partial summary judgment, not for a dismissal of the case, as Lamlaw has pointed out repeatedly. I mention that because I still see mainstream articles saying that IBM is asking the court to dismiss the case. They are not. They are asking for a judgment on certain claims. That's what the word "partial" in the titles Partial Summary Judgment means. If they win, the case continues, minus the parts they have already won a judgment on. If they don't, it continues and at trial all the elements will be decided by the jury.

The new dates are November 23 and January 14:

November 23 for SCO to file

  • a memorandum in response to IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim) and
  • a memorandum in response to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims.

And the next date is January 14, for IBM to file

  • its reply memorandum in support of its Motion for Partial Summary Judgment on Breach of Contract Claims
  • a reply memorandum in support of its Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim).

IBM's motion for partial summary judgment on the breach of contract claims is the one where they say that all parties involved in the contract between AT&T and IBM have now provided testimony in discovery that IBM has the right to do whatever it wishes with its own code, contrary to SCO's claims, or as the memorandum puts it, they all provided "unequivocal testimony that the agreements were not intended and should not be understood to preclude IBM's use and disclosure of homegrown code and contemporaneous documents reflect this interpretation of the licenses".

Their motion for partial summary judgment on the copyright infringement claim is the one where IBM says that SCO has literally copied more than 783,000 lines of code from 16 packages of IBM's copyrighted material. They also claim that SCOsource licenses violate the GPL. They are asking for summary judgment as to liability and a permanent injunction.

An odd thing is that the Certificate of Service doesn't list all the attorneys I would have expected. It doesn't list David Marriott, for example. The two new SCO attorneys, Normand and Eskovitz, are listed on the stipulation but are not on the Certificate of Service. And the misspelling of Infringement as Infringment in the titles is they way it is. Oddly, they -- and in this case it was SCO's side that appears to have drawn up the documents -- got it spelled correctly in the body of the documents but not in the titles.

What does the delay mean? Maybe nothing much. Maybe that both sides realize the significance of these two IBM motions. Maybe SCO threatened more motions if it didn't get another delay. It's probably scouring the wilderness looking for someone to stand up for their interpretation of the contract, and that does take time. Who knows? Maybe everyone is just swamped. A whole lot of motion practice going on, and it's easy to drop a stitch if you hurry. These two motions, from SCO's perspective, are pretty much the ball game. For IBM, not so much. If they lose, they just get another opportunity at trial. So SCO is likely taking it all very, very seriously. Maybe it just means that SCO now wishes it had attended GPL Summer School when it had a chance last summer.

Here is the Order, followed by the Stipulation.

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

IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH

______________________________________

THE SCO GROUP, INC.,

Plaintiff,

vs

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant

______________________________________

ORDER TO EXTEND TIME
FOR BRIEFING REGARDING IBM's
MOTION FOR PARTIAL SUMMARY JUDGMENT
ON ITS COUNTERCLAIMS FOR
COPYRIGHT INFRINGMENT
(EIGHTH COUNTERCLAIM)

Case No. 2:03cv00294 DK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

_____________________________________

Based upon the stipulation of the parties, and good cuase appearing,

IT IS HEREBY ORDERED as follows:

Plaintiff The SCO Group ("SCO") may have up to and including November 23, 2004, in which to file a memorandum in response to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims.

SCO may have up to and including November 23, 2004, to file a memorandum in response to IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim).

IBM may have up to and including January 14, 2005, to file its reply memorandum in support of its Motion for Partial Summary Judgment on Breach of Contract Claims.

IBM may have up to and including January 14, 2005, to file a reply memorandum in support of its Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim).

DATED this 13th day of October, 2004.

BY THE COURT:

_____[signature]______
Honorable Dale A. Kimball
United States District Court Judge

APPROVED AS TO FORM:

By: ______[signature]______
SNELL & WILMER L.L.P.
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott

Counsel for Defendant International
Business Machines Corporation

BY: ____[signature]______
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Ted Normand
Sean Eskovitz

Counsel for Plaintiff The SCO Group, Inc.


United States District Court
for the
District of Utah

October 14, 2004

** CERTIFICATE OF SERVICE OF CLERK **

Re: 2:03-CV-00294

True and correct copies of the attached were eithere mailed, faxed, or e-mailed by the clerk to the following:

Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]
EMAIL

Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL

Frederick S. Frei, Esq.
ANDREWS KURTH
[address]

Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]
EMAIL

Mr. Alan L. Sullivan, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]

EMAIL

Mr. Kevin P. McBride, Esq.
[address]
EMAIL

Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]

Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]
EMAIL


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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, P.C.
[address, phone, fax] Robert Silver (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER
[address, phone, fax]

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

Attorneys for Plaintiff The SCO Group, Inc.

___________________________________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

__________________________________

THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,

Defendant.

_________________________________

JOINT STIPULATION TO EXTEND
TIME FOR BRIEFING REGARDING
IBM'S MOTION FOR PARTIAL
SUMMARY JUDGMENT ON
BREACH OF CONTRACT CLAIMS
AND IBM'S MOTION FOR PARTIAL
JUDGMENT ON ITS
COUNTERCLAIMS FOR
COPYRIGHT INFRINGMENT
(EIGHTH COUNTERCLAIM)

Case No. 2:03CV0294DAK
Hon. Dale A. Kimball
Magistrate Judge Brooke C. Wells

________________________________

Plaintiff The SCO Group ("SCO"), by and through counsel, and Defendant International Business Machines Corporation ("IBM"), by and through counsel, hereby stipulate that SCO may have up to and including November 23, 2004, in which to file a memorandum in response to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims, and may have up to and including November 23, 2004, to file a memorandum in response to IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim). IBM may have up to and including January 14, 2005, to file its reply memorandum in support of its Motion for Partial Summary Judgment on Breach of Contract Claims; and may have up to and including January 14, 2005, to file a reply memorandum in support of its Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim).

DATED this 12th day of October, 2004.

By: _____[signature]_____
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver (admitted pro hac vice)
Ted Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)

Attorneys for The SCO Group, Inc.

By: _____[stipulation]____
SNELL & WILMER LLP
Alan L. Sullivan
Todd M. Shaughnessy

CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott
Attorneys for IBM


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )