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IBM's Greatest Hits - Exhibit 173, Declaration of Wayne Boyer
Saturday, October 28 2006 @ 02:51 PM EDT

A reader, ktlyst, has begun sending me HTML of some of the 597 IBM exhibits supporting their summary judgment motions, exhibits that I've dubbed IBM's Greatest Hits. I love that she is doing this, and I hope you all take a hint and type up or OCR at least one, whichever is your favorite. I can't possibly do them all myself. She has already done 51, 168, 169, 173, 176, 183, 188, 226 and 227.

I'll start with Exhibit 173, the Declaration of Wayne Boyer [PDF]. If you look on the list of exhibits, in the far right box, you can see that this exhibit is referenced in IBM's Memorandum in Support of its Motion for Summary Judgment on SCO's Contract Claims . This exhibit, as you'll see, confirms that one of the items on SCO's list, some POSIX test software written for Linux, is original code, nothing to do with SCO's precious IP. If it is theirs, even.

Specifically, if you look, you'll find it mentioned as one of the exhibits supporting these points:

238. All of the material IBM is alleged to have misused in the remaining Items (Items 1-2, 23, 43, 90, 94, 113-42, and 186-92) is original IBM work or the work of third parties other than SCO and independent of System V. (Ex. 162. 5; Ex. 248 5; Ex. 218 5; Ex. 243 5; Ex. 168 6; Ex. 258 4-5; Ex. 231 7-8; Ex. 292 4; Ex. 507 at 40, 57, 199-200, 225-26, 228; Ex. 293 4; Ex. 173 4; Ex. 196 5; Ex. 235 5; Ex. 237 5; Ex. 211 5; Ex. 216 5; Ex. 246 4; Ex. 210 6; Ex. 263 5; Ex. 222 5; Ex. 206 4-5; Ex. 274 4; Ex. 161 4; Ex. 225 5; Ex. 188 5.)...

241. None of these individuals referred to or otherwise used non-public UNIX System V source code, methods, or concepts in making the challenged Linux contributions. (Ex. 291 13; Ex. 162. 5; Ex. 248 5; Ex. 218 5; Ex. 243 5; Ex. 168 6; Ex. 258 4-5; Ex. 231 7-8; Ex. 292 4; Ex. 507 at 40, 57, 199-200, 225-26, 228; Ex. 293 4; Ex. 173 4; Ex. 196 5; Ex. 235 5; Ex. 237 5; Ex. 211 5; Ex. 216 5; Ex. 246 4; Ex. 210 6; Ex. 263 5; Ex. 222 5; Ex. 206 4-5; Ex. 274 4; Ex. 161 4; Ex. 225 5; Ex. 188 5.)

242. In making the challenged contributions, the alleged wrongdoers identified by SCO relied on their own creativity and general experience. (Ex. 291 13; Ex. 162 5; Ex. 248 5; Ex. 218 5; Ex. 243 5; Ex. 168 6; Ex. 258 4-5; Ex. 231 7; Ex. 292 4; Ex. 507 at 109-10; Ex. 293 4; Ex. 173 6; Ex. 196 5; Ex. 235 5; Ex. 237 5; Ex. 211 5; Ex. 216 5; Ex. 246 4; Ex. 210 6; Ex. 263 5; Ex. 222 5; Ex. 206 5; Ex. 274 4; Ex. 161 5; Ex. 225 5; Ex. 188 5.)...

263. The allegedly misused testing technology material does not include any UNIX System V code; it is not a modification or derivative work of UNIX System V; and it was not based on or created with reference to UNIX System V. It was original Sequent work created independent of UNIX System V, (Ex. 196 5; Ex. 173 4; Ex. 291 29.)...

267. The SPIE tests were not part of the Dynix or Dynix/ptx operating systems. (Ex. 209 102; Ex. 298 25, 29; Ex. 173 3; Ex. 196 4; Ex. 291 30.)

Does this help you to see how one offers proof normally in a court case? Notice that this exhibit is never the only one proving any particular point?

With each exhibit she sends me, she provides a brief description of what the exhibit is about to orient me. I enjoy her descriptions, so I thought I'd include them. Here's what she told me about this one:

In which IBM engineer Wayne Boyer declares that POSIX test software disclosed to Linux did not require knowledge of the kernel to write. And software stress tests aren't exactly part of the operating system, anyways.

She does have a way of capturing the Duh Quotient. I'd add that he also clearly says that while SCO claims an "IBM Unknown Person" disclosed Software Product Integration and Evaluation ("SPIE") tests to the Linux Test Project ("LTP"), he is that "IBM Unknown Person." At least, he authored a number of the LTP tests. None of them was part of the Dynix/ptx operating system. The code doesn't refer to or use any System V code, methods or concepts. It's original code. "Rather, all of the testing technologies are based on the publicly available POSIX standards." Um. As in "Testing technologies were not part of the System V operating system. The purpose of the SPIE tests and the LTP tests is to test publicly available POSIX system calls that are common to all UNIX-like operating systems."

I'll bet they were laughing, Boyer especially, when they drew up this Declaration at IBM. Or I can see his response in his mind's eye, when the lawyers asked if he'd do a Declaration to rebut SCO's accusation. "You're kidding, right? They didn't. They didn't really say *that*, did they? POSIX standards mean they are public, and anyone can use them."

Ah, Wayne. Welcome to SCO's World.

The accusation is ridiculous on its face. Either SCO didn't ask any of its experts to evaluate this claim, or their experts aren't so expert, or they are using a definition of method and concept that is unique to SCO, or it really is their position that if you signed a contract ever with a predecessor in interest, you can't use any public standards that are like System V, or it is hoping the judge and/or jury will be so clueless as to take an accusation like this seriously. I'd put my money, if I were the gambling kind, on a merger of the last two.

Meanwhile, IBM is patiently and carefully answering all claims, stupid or not, letting the judge know that this one is not even open to debate. That's how you win summary judgment motions, when there are no facts open to dispute.

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

SNELL & WILMER LLP
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

DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

DECLARATION OF WAYNE BOYER

Case No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

I, Wayne Boyer, declare as follows:

1. I am currently employed by International Business Machines Corporation ("IBM") as a Software Engineer in IBM's Systems and Technology Group. I have worked for IBM since October 2000.

2. This declaration is submitted in connection with the lawsuit brought by The SCO Group, Inc. ("SCO") against IBM titled The SCO Group v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). I make this declaration based upon personal knowledge.

3. I understand that SCO has alleged that an "IBM Unknown Person" disclosed Software Product Integration and Evaluation ("SPIE") tests to the Linux Test Project ("LTP"). I authored a number of the referenced LTP tests. None of them was part of the Dynix/ptx operating system.

4. All of the LTC tests referenced by SCO, including those that I contributed to Linux, were original IBM or Sequent works. They did not include any Unix System V material; they were not modifications or derivative works of Unix System V; and they were not written with reference to Unix System V. Testing technologies were not part of the System V operating system.

5. The purpose of the SPIE tests and the LTP tests is to test publicly available POSIX system calls that are common to all UNIX-like operating systems. These tests do not include any kernel source code, nor do they require knowledge of or reference to kernel source code to develop.

2

6. I did not refer to or use any System V code, methods or concepts in developing any of the testing technologies that were contributed to Linux. Rather, all of the testing technologies are based on the publicly available POSIX standards.

7. I declare under penalty of perjury that the foregoing is true and correct.

Executed September 11, 2006
Beaverton, Oregon

___[signature of Wayne Boyer____]
Wayne Boyer

3


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