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Judge Kimball Signs Order Limiting IBM's 9th Counterclaim
Wednesday, August 03 2005 @ 02:10 AM EDT

Judge Kimball has now signed the Order Limiting Scope of IBM's Ninth Counterclaim [PDF]. It's taken about a month since he ruled on this issue in IBM's favor. And so, SCO's very complex effort to prop up a claim that they should be allowed to amend their complaint again to add a claim that IBM's AIX on Power infringed SCO's copyrights (ha ha, if they turn out to have any) and to extend the discovery process by adding another claim has failed and is now officially over.

You'll recall IBM's words in its Reply Memorandum in Further Support of Motion for Order Limiting Scope of Ninth Counterclaim:

In footnote 3 of its opposition papers, SCO effectively concedes that the only reason it opposes this motion is as a means of gaining leave to file its proposed new claim for copyright infringement. SCO states that it would not oppose a motion by IBM to "amend" the Ninth Counterclaim so long as SCO is free to amend its complaint. In fact, that is exactly why SCO fomented this dispute.. . . The purpose of this motion is to underscore IBM's intent as to the Ninth Counterclaim and to put an end to SCO's tactical efforts to misconstrue it.
Those tactical efforts failed. This document was stamped received by the court clerk on July 19, and signed by the judge and entered on August 1, which is a longer time gap than usual, so the court must still be backed up with the new electronic filing changeover. Or maybe it's just vacations. Even judges get time off for good behavior. Kidding. But it is vacation season.

Actually, SCO only partially failed. As you'll recall, SCO's attorneys argued that they needed all the unreleased versions of AIX and Dynix in order to support their new cause of action regarding their accusations about IBM using AIX on Power, among other things. They then lost their hard-fought motion to amend the complaint a third time to add that new claim, and they lost their attempt to broaden IBM's 9th Counterclaim. But Judge Wells had already ordered the massive discovery turned over. So what to do with all that code? They have mountains of code to comb through, and you know how much fun that is, and what, oh, what, can they do with it?

They still are sorting through the code to deal with IBM's 10th Counterclaim, and there's the IBM and Sequent contracts issues, the methods and concepts ball of wax. "One way in which SCO will prevail on its contract claims is by tracing the AIX or Dynix code that IBM contributed to Linux back to UNIX," SCO wrote in a recently redacted Reply Brief in Further Support of its Supplemental Memorandum Regarding Discovery. They're a determined bunch, and no doubt they'll be working on that, but I doubt it's at the top of their list now that Novell has given them something to *really* think about.

I'm not exactly proud of this feeling, because it lacks nobility, but I have to admit, there's something deeply satisfying about seeing a bully get pushed to the mat by someone bigger and badder than he is. I took the whole day off Tuesday, just enjoying that feeling, the first day off from Groklaw I've taken in over a year, I think. I've only taken two since May of 2003. And it felt wonderful. Thanks, Novell, for a perfectly lovely day.

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

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,
vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant/Counterclaim-Plaintiff.
[Proposed]
ORDER LIMITING SCOPE OF IBM'S
NINTH COUNTERCLAIM

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

1

Based upon Defendant/Counterclaim Plaintiff International Business Machines Corporation's ("IBM") Motion for Entry of Order Limiting Scope of IBM's Ninth Counterclaim, and for good cause appearing,

IT IS HEREBY ORDERED that IBM's Ninth Counterclaim is limited to seeking a declaration that IBM has not infringed SCO's alleged copyrights based on alleged breaches of license agreements with AT&T and SCO's purported termination of those licenses.

DATED this 1st day of August, 2005.

BY THE COURT

___[signature of Dale A. Kimball]_

U.S. District Court Judge

Dale A. Kimball

2

CERTIFICATE OF SERVICE

I hereby certify that on the 19th day of July, 2005, a true and correct copy of the foregoing was sent by U.S. Mail,postage prepaid, to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE
[address]

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

Robert Silver
Edward Normand
Sean Eskovitz
BOIES, SCHILLER & FLEXNER
[address]

___[signature]___


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