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IBM Calls SCO's Bluff Over "Need" For 25 Additional Depositions
Friday, October 07 2005 @ 12:11 AM EDT

As you know, SCO has filed a motion with the court, asking for permission to take 25 more depositions. IBM has now filed its Memorandum in Opposition to SCO's Motion for Leave to Take Additional Depositions [PDF], and it's a breathtakingly bold chess move.

SCO argued in particular that IBM's complex patent counterclaims made it essential that it have more depositions. I thought they kind of had a point. IBM maybe does too, and apparently it smells more attempted delay on SCO's part, and that has got to be a nauseating prospect. Anyway, if SCO's game is delay, delay, delay, what should IBM's counterthrust be?

Exactly.

SCO foreshadowed that it intended to bring a motion to separate the counterclaims from the rest of the case. That's not so appealing from IBM's standpoint, since it kind of doubles the time this thing will drag on, by creating a second case out of this one, and discovery on the second case begins from the beginning. Yipes. My grandkids would have to cover this case someday for Groklaw. Not that I have any. But really, I can't imagine still covering SCO v. IBM for three more years. Can you? We'll all go nuts with fury.

IBM can save more money by bringing this farce to an end quickly than it can possibly get from SCO in damages from those counterclaims or royalties from a licensing arrangement, since SCO's sales have been careening wildly downward, so IBM has offered to drop the counterclaims in order to speed things along. IBM would like to stick to the current schedule. Here's IBM's footnote 1:

While IBM continues to believe that SCO infringed IBM's valid patents, IBM agreed to withdraw its patent counterclaims to simplify and focus the issues in this case and to expedite their resolution. The little discovery that SCO has produced regarding IBM's patent claims makes clear that there is insufficient economic reason to pursue these claims. Since SCO's sales have been, and are, limited, a finding of infringement would yield only the most modest royalty or award of damages and would not justify the expense of continuing prosecution of these claims.

Here's a simple rule of litigation. You never, ever offer to drop anything you think you'll need for victory or to make yourself whole. Litigation is always a cost-benefit analysis. You have to have the prospect of a sizable enough win to pay your lawyer, or you will find it hard to get one, or, like Boies Schiller, the lawyer will want its money up front. IBM did the math, and SCO isn't looking like deep pockets any more, is it, now that Boies Schiller has drained them of pretty much all they had? So, IBM's practical analysis apparently was that it's worth more to get the thing over with on time than to go after counterclaims against a defendant with no money in its pocket to pay damages or royalties, even when IBM won. Plus, there is some strategy here too. Sometimes in chess, you'll let a pawn be sacrificed to set up a checkmate.

So, IBM evidently doesn't think it even needs the counterclaims to be victorious, and IBM is likely even more sick of discovery, and of SCO, than we are. Besides, patent litigation is expensive and may I say it, boring? Only SCO desperately clings to discovery with all its might. You might too, if you were afraid of the ultimate outcome. IBM, having no such fears, calls SCO's bluff. SCO says it needs 25 more depositions to deal with the counterclaims? Fine, IBM counters. We'll drop the counterclaims. *Now* what do you need, you whiney little phoney?

Oops. That last is probably my inner child coming out, not IBM talking. They wouldn't say that.. . . Maybe under their breath.

This won't be heard tomorrow, obviously, since SCO gets a further opportunity to respond. I am looking forward to that immensely.

Here's the thing. In patent infringement cases, all you can get is money. That's about all it's ever for. Even compelled licensing is about the money. There is no money from a plaintiff that has burned through its millions, handing it all over to lawyers chasing a now-popped bubble of a scheme. Oops. Did I say scheme? That doesn't seem like the right word. Did I mean to write scam? No, I probably meant to write dream. That's it. A popped bubble of a dream. Ah! those fading daydreams of second homes -- nay, castles! -- and undeserved millions, just from cynically hitching a piggyback ride on the back of the rising star, Linux. I guess we will get to find out from SCO the answer to poet Langston Hughes' question in his poem, "Dream Deferred":

What happens to a dream deferred?
Does it dry up
Like a raisin in the sun?
Or fester like a sore--
And then run?
Does it stink like rotten meat?
Or crust and sugar over--
like a syrupy sweet?
Maybe it just sags
like a heavy load.
Or does it explode?

I know. The poem isn't about SCO, because its dream is dead, not deferred. Maybe it's more about IBM, who surely didn't expect to still be asking SCO, three years later, what code are you talking about here?

I can't help but remember when all this began, and SCOfolk thought they were going to get wildly rich from playing the bully. Now, like a third-world country too poor to pay off its debts and so forgiven its crushing debt, there being no other practical option, SCO does not have to face the consequences of infringing IBM's patents, as alleged in IBM's counterclaims. That doesn't mean it doesn't have to face the music. It does -- Lanhan Act claims and copyright infringement regarding the GPL and all the many other counterclaims IBM still holds in its hand still hanging over SCO's head -- and if IBM's chess move plays out as IBM hopes, it will be sooner than SCO wants, right on schedule.


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