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SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Saturday, February 07 2004 @ 01:26 AM EST

Here is SCO'S Amended Answer to IBM's Amended Counterclaims.
The original is at http://sco.tuxrocks.com/Docs/IBM/Doc-100-B.pdf .

(Don't confuse this with their proposed Second Amended Complaint,
which we'll do next, and which is the document with the added
copyright infringement claim, which claim is already up as text.
That is available at http://sco.tuxrocks.com/Docs/IBM/Doc-100-A.pdf )


This document is SCO's way of trying to fix an oops. If you read
IBM's Motion to Strike, you'll see what this is all about: SCO failed
to provide some info, and IBM caught them and responded with a
Motion to Strike. Now, SCO is providing that information and hoping
it's going to fly. They would like us to believe that IBM deliberately
tried to hide prior art on four different patents. Four. IBM. What are
the odds on that? Slim? None? Laughable? And SCO will have to
prove all four to escape IBM's patent steam roller. Like they don't have
another thousand or so to throw in SCO's roadway if necessary.

See the Eighteenth Affirmative Defense and compare it
with the original Answer. Both the original Answer and IBM's
Motion to Strike are in the Legal Docs collection. I'll explain more
after we get all the documents up as text. It's more than 300 pages.

SCO filed these as paper documents, and since they are revisions of
documents already in digital format, it means they had to take one
extra step to file that way, namely printing it out on paper. Why,
you might almost get the idea that they aren't proud of their work.
Either that or they think it's funny to make Groklaw scan in 300
pages. Thank you, Frank Sorenson, for scanning in 300 pages all
by yourself.

Another change between this document and the original is SCO
dropped fraud in the Fifteenth Affirmative Defense and added numbers
116 and 256 to the Sixteenth Affirmative Defense.


************************************************************************
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER L.L.P.
[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.
________________________________________________

SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS

Case No. 03-C V-0294

Hon: Dale A. Kimball
Magistrate Judge Brooke C. Wells
________________________________________________

Plaintiff and counterclaim-defendant The SCO Group, Inc. ("SCO"), by and
through counsel, answers the amended counterclaims of defendant
and counterclaim-plaintiff International Business Machines Corporation
("IBM") and further admits, denies and alleges as follows:



ANSWER

1. Admits that the UNIX operating system was originally developed by Bell
Laboratories, then a development arm of AT&T Corp., but denies the
remaining allegations Paragraph 1.

2. Admits that it respects the intellectual property rights of others, but denies
the remaining allegations of Paragraph 2.

3. Admits the allegations of Paragraph 3.

4. Admits the Court has jurisdiction over the claims, but denies that IBM
has any valid claims and denies the remaining allegations of Paragraph
4 not specifically admitted herein.

5. Admits the allegations of Paragraph 5.

6. Admits the allegations of Paragraph 6.

7. Admits the allegations of Paragraph 7.

8. Admits that the earliest UNIX operating system was built by software
engineers at Bell Laboratories, the research division of AT&T, but denies
the remaining allegations of Paragraph 8 not specifically admitted herein.

9. Admits the allegations of Paragraph 9.

10. Admits that AT&T sold UNIX assets, through its subsidiary USL, to
Novell in 1993, admits that Novell sold UNIX assets to The Santa Cruz
Operation, Inc., now known as Tarantella, Inc. ('Tarantella') in 1995, admits
that Tarantella is not affiliated with SCO, but denies that Novell sold only
part of its UNIX assets and further denies the remaining allegations
contained in Paragraph 10 not specifically admitted herein.

11. Denies the allegations of Paragraph 11.

12. Admits that in 1985 IBM acquired certain UNIX rights pursuant to license
with AT&T, and admits that IBM and AT&T entered agreements as referenced
in Paragraph 12, but denies that IBM's UNIX-related rights are characterized
as 'broad,' denies that IBM has any remaining rights under the referenced
agreements and denies the remaining allegations of Paragraph 12 not specifically
admitted herein.

13. Admits that IBM developed a version of UNIX pursuant to license originally
with AT&T and admits that IBM's version of UNIX is called AIX but denies that
IBM properly exercised its rights and is without information sufficient to admit
or deny the remaining allegations of Paragraph 13 and therefore denies the same.

14. Admits that Sequent, like IBM, acquired certain UNIX rights pursuant to its
own license agreements with AT&T, all of which IBM failed to attach to the its
counterclaim, and admits that IBM acquired the stock of Sequent and denies
the remaining allegations of Paragraph 14 not specifically admitted herein.

15. Admits that Amendment X was entered into in 1996 by and among IBM,
Original SCO and Novell, but denies the remaining allegations in Paragraph 15.

16. Denies the allegations of Paragraph 16 and alleges that Linux is, in actuality,
an unauthorized version of UNIX that is structured, assembled and designed to
be technologically indistinguishable from UNIX, and practically is distinguishable
only in that Linux is a 'free' version of UNIX designed to destroy proprietary
operating system software.

17. Admits that Linus Torvalds assembled the original Linux kernel but is
without information sufficient to admit or deny the remaining allegations of
Paragraph 17 not specifically admitted herein, and therefore denies the same.

18. Is without information sufficient to admit or deny the allegations of Paragraph
18, and therefore denies the same.

19. Admits that many developers have contributed software code to the Linux
kernel, admits that IBM has contributed software code to the Linux kernel, admits
that the first iteration of Version 2.4 of the Linux kernel released in 2001, but
is without information sufficient to admit or deny the remaining allegations of
Paragraph 19 not specifically admitted herein, and therefore denies the same.

20. Admits that Red Hat has distributed one or more versions of Linux, which
may include one or more versions of the Linux kernel, and admits that other
distributors may have done so as well, including SCO, but denies the remaining
allegations of Paragraph 20 not specifically admitted herein.

21. Admits the allegations of Paragraph 21, but alleges that Linux software contains
other additional characteristics not identified in Paragraph 21, and further alleges
that Paragraph 21 does not provide a complete definition of Linux.

22. Admits that software license agreements typically reflect legal limitations
restricting the use and reproduction of works, admits that Linux is available for
free download, admits that the license presently governing Linux (the General
Public License) generally is oriented to keep source code publicly available, but
denies the remaining allegations of Paragraph 22 not specifically admitted herein.

23. Admits the allegations of Paragraph 23 but denies enforceability or
applicability of the GPL.

24. Is without information sufficient to admit or deny the allegations of Paragraph
24, and therefore denies the same.

25. Admits that the GPL purports to guarantee the right to freely share and
change free software, but denies that the GPL applies to any program whose
authors commit to using it, denies enforceability or applicability of the GPL,
and is without information sufficient to admit or deny the remaining allegations
of Paragraph 25 not specifically admitted herein, and therefore denies the same.

26. Admits that the GPL allows a licensee to distribute copies of free software,
receive source code and change and use the software in new free programs but
is without information sufficient to admit or deny the remaining allegations of
Paragraph 26 not specifically admitted herein and therefore denies the same.

27. Admits that Linux is licensed under the GPL and admits that Linux contains
some notices placed by some copyright holders, but denies enforceability or
applicability of the GPL and denies the remaining allegations of Paragraph 27
not specifically admitted herein.

28. Denies the allegations of Paragraph 28.

29. Admits that it was originally founded as Caldera, Inc., admits that in 1998
Caldera, Inc. sold certain of its assets to Caldera Systems, Inc., but denies the
remaining allegations in Paragraph 29 not specifically admitted herein.

30. Admits that it has distributed certain versions of the Linux operating system
but denies the remaining allegations of Paragraph 30.

31. Admits that it previously developed and marketed software based on certain
versions of the Linux operating system, and admits that it has provided certain
Linux-related services, but denies the remaining allegations of Paragraph 31.

32. Admits that it previously distributed or re-distributed SCO Linux server, SCO
OpenLinux Server, SCO OpenLinux Workstation and SCO Volution Manager, and
admits that SCO has suspended its Linux distribution, but denies the remaining
allegations contained in Paragraph 32.

33. Denies the allegations of Paragraph 33.

34. Admits that it previously distributed certain versions of Linux, admits that
it previously provided Linux-related educational programs, admits that it joined
UnitedLinux, but denies the remaining allegations of Paragraph 34 not specifically
admitted herein.

35. Admits the allegations of Paragraph 35.

36. Admits that it previously supported in some ways the open-source community
prior to discovery of violation of its intellectual property rights by IBM and others,
but denies the existence of any 'scheme,' and denies the allegations of Paragraph
36 not specifically admitted herein.

37. Admits that some of its products were previously made available for
licensing under the GPL, but denies the remaining allegations of Paragraph
37 not specifically admitted herein.

38. Denies the allegations of Paragraph 38.

39. Admits that it previously engaged in certain Linux-related activities, but
denies the remaining allegations of Paragraph 39 not specifically admitted herein.

40. Admits that it has contributed to certain open-source development
projects, but denies the remaining allegations of Paragraph 40 not specifically
admitted herein.

41. Denies the allegations of Paragraph 41.

42. Admits the allegations of Paragraph 42, but alleges that SCO was unaware
of IBM's Linux-related investment prior to its formal announcements thereof,
and further alleges that IBM secretly and improperly failed to disclose to SCO
such Linux-related investments and its intentions with respect to Linux before
and during Project Monterey.

43. Admits the allegations of Paragraph 43.

44. Admits that IBM has contributed source code to Linux projects under the
GPL, but denies that such contributions were proper or legal, and denies the
remaining allegations of Paragraph 44 not specifically admitted herein.

45. Admits that it completed a public offering, admits that IBM has established
its business around Linux and that IBM has received a significant amount of
revenue and profit related to Linux, admits that SCO has never generated a
profit related to Linux, admits that SCO has not generated profit until recently,
but denies the remaining allegations of Paragraph 45 not specifically admitted
herein and alleges that IBM's Linux-related revenue is from its wrongful conduct
in violation of SCO's legal and contractual rights.

46. Admits that Caldera Systems, Inc. was merged into Caldera International, Inc.,
admits that SCO acquired rights to the UNIX operating system originally developed
by Bell Laboratories, but denies the remaining allegations of Paragraph 46 not
specifically admitted herein.

47. Denies the allegations of Paragraph 47.

48. Denies the allegations of Paragraph 48.

49. Denies the allegations of Paragraph 49.

50. Denies the allegations of Paragraph 50.

51. Denies the allegations of Paragraph 51.

52. Denies the allegations of Paragraph 52.

53. Admits it alleges that IBM has breached contractual obligations to SCO by,
among other things, incorporating and inducing others to incorporate source
code in the Linux kernel in violation of SCO's contractual and intellectual property
rights, and that IBM has competed unfairly, interfered with SCO contract rights
with others and misappropriated and/or misused trade secrets, but denies the
remaining allegations of Paragraph 53 not specifically admitted herein.

54. Denies the allegations of Paragraph 54.

55. Admits having sent letters to 1500 of the world's largest corporations, alleges
that the letters are the best evidence of the contents thereof, denies that said
letters threatened litigation and denies the remaining allegations of Paragraph 55
not specifically admitted herein.

56. Denies the allegations of Paragraph 56.

57. Admits that it has made certain public statements regarding IBM's rights
to use AIX and Dynix, admits that it claims the legal right and authority to
revoke, and has effectively revoked, IBM right to use, license or distribute AIX
and that it has so stated in certain statements, admits that it claims the legal
right to revoke IBM's use, license or distribution of Dynix and has so stated in
certain statements, but denies the remaining allegations of Paragraph 57
not specifically admitted herein.

58. Admits it claims that licensing and sublicensing agreements and
related agreements with IBM give SCO the right to control certain uses
of AIX by IBM, admits it claims that Linux is, in material part, an unauthorized
derivative of UNIX and that SCO has so stated, admits it claims that as of and
after June 16, 2003 IBM's right to further use, license or distribute AIX was
terminated and that SCO has so stated, admits it claims that IBM customers
who license AIX following June 16, 2003 are doing so in violation of SCO's
rights and that SCO has so stated, admits it claims that certain uses of Linux
infringe on SCO's intellectual property rights and that SCO has so stated,
but denies the remaining allegations of Paragraph 58 not specifically admitted
herein.

59. Admits it claims that IBM has contributed certain Dynix code to Linux in
violation of its contractual and legal obligations to SCO and that SCO has so
stated, admits it claims that IBM's violation of SCO's rights are giving rise to
damages as a result of IBM's improper profit from Linux and improper continued
use of AIX, and that SCO has so stated, but denies the remaining allegations of
Paragraph 59 not specifically admitted herein.

60. Admits the existence of the letter of June 9, 2003 but denies any legal or
factual basis for the said letter and denies the remaining allegations of Paragraph
60 not specifically admitted herein.

61. Admits the existence of the letter of June 12, 2003 but denies any right in
Novell to waive or revoke SCO rights and denies any legal or factual basis for
the said letter and denies the remaining allegations of Paragraph 61 not
specifically admitted herein.

62. Denies the allegations of Paragraph 62.

63. Admits it has revoked IBM's right to further use, license or distribute AIX,
pursuant to the express terms of the Software Agreement and related documents,
and that it has so stated, but denies the remaining allegations of Paragraph
63 not specifically admitted herein.

64. Admits that IBM sent letters dated April 2, 2003 and May 5, 2003 but
denies the remaining allegations of Paragraph 64 not specifically admitted herein.

65. Denies the allegations of Paragraph 65.

66. Denies the allegations of Paragraph 66.

67. Admits that IBM is currently without legal or contractual authority to use,
license or distribute AIX or Dynix, based on its breach of agreement with SCO
and SCO's resulting termination of IBM's AIX software agreement and related
agreements and Sequent's Dynix software agreement and related agreements,
and admits that SCO has so stated, but denies the remaining allegations of
Paragraph 67 not specifically admitted herein.

68. Admits that SCO has offered a license to Fortune 1000 and Global 500 Linux
users as a means of permitting lawful use of certain Linux products and that SCO
has so stated, but denies the remaining allegations of Paragraph 68 not specifically
admitted herein.

69. Denies the allegations of Paragraph 69.

70. Denies the allegations of Paragraph 70.

71. Admits that IBM has made contributions of source code to Linux 2.4 and
2.5 kernels under the GPL, but denies the applicability or enforceability of the
GPL and denies the remaining allegations of Paragraph 71 not specifically
admitted herein.

72. Admits that IBM and others have breached SCO's intellectual property rights,
but denies the remaining allegations of Paragraph 72.

73. Denies the allegations of Paragraph 73 and denies the enforceability or
applicability of the GPL.

74. Denies the allegations of Paragraph 74.

75. Admits that SCO licenses and distributes UnixWare, "OpenServer,"
"SCO Manager," and "Reliant HA," but denies infringement and denies
the remaining allegations of Paragraph 75.

76. Denies the allegations of Paragraph 76.

77. Denies the allegations of Paragraph 77.

78. Repeats and realleges Paragraphs 1-77, above.

79. Admits that IBM continues to be obligated to SCO by confidentiality
requirements and other provisions in the AT&T Agreements and Amendment
X that, by their terms, specifically continue beyond termination, but alleges
that IBM's right to use, license and distribute under the said agreements has
been lawfully and properly terminated, and therefore denies that IBM has any
right under the said agreements and denies the remaining allegations of
Paragraph 79 not specifically admitted herein.

80. Denies the allegations of Paragraph 80.

81. Denies the allegations of Paragraph 81.

82. Denies the allegations of Paragraph 82.

83. Denies the allegations of Paragraph 83.

84. Repeats and realleges Paragraphs 1-83, above.

85. Admits that IBM sells Linux-related services in interstate commerce, but
denies that IBM has or had authority to sell, license or distribute AIX in
interstate commerce from and after June 16, 2003, and denies that IBM has
or had authority to license, sell or distribute Dynix in interstate commerce
from and after September 2, 2003, alleges that IBM's rights in AIX and Dynix
have been lawfully and properly terminated, and denies the remaining the
allegations of Paragraph 85 not specifically admitted herein.

86. Denies the allegations of Paragraph 86.

87. Denies the allegations of Paragraph 87.

88. Denies the allegations of Paragraph 88.

89. Denies the allegations of Paragraph 89.

90. Repeats and realleges Paragraphs 1-89, above.

91. Admits that IBM has expended a substantial investment of time,
effort, and money in development of AIX pursuant to the terms of its
license with SCO and SCO's predecessors in interest, admits that AIX
has become one of the world's leading UNIX operating systems, admits
that IBM's products and services are sold and used throughout the United
States, admits that IBM acquired Sequent and thereby acquired Sequent's
interest in Dynix, subject to the terms and conditions of Sequent's
agreements with SCO and/or its predecessors, but denies the remaining
allegations of Paragraph 91 not specifically admitted herein.

92. Denies the allegations of Paragraph 92.

93. Denies the allegations of Paragraph 93.

94. Denies the allegations of Paragraph 94.

95. Repeats and realleges Paragraphs 1-94, above.

96. Admits the allegations of Paragraph 96.

97. Admits it is generally aware that IBM has or may have certain prospective
business relationships that IBM deems important, but denies the remaining
allegations of Paragraph 97 not specifically admitted herein.

98. Denies the allegations of Paragraph 98.

99. Denies the allegations of Paragraph 99.

100. Denies the allegations of Paragraph 100.

101. Repeats and realleges Paragraphs 1-100, above.

102. Denies the allegations of Paragraph 102.

103. Denies the allegations of Paragraph 103.

104. Denies the allegations of Paragraph 104.

105. Denies the allegations of Paragraph 105.

106. Denies the allegations of Paragraph 106.

107. Repeats and realleges Paragraphs 1-106, above.

108. Admits that IBM has made contributions of source code to Linux under
the GPL, but denies the applicability or enforceability of the GPL and denies
the remaining allegations of Paragraph 108 not specifically admitted herein.

109. Denies the allegations of Paragraph 109.

110. Denies the allegations of Paragraph 110.

111. Denies the allegations of Paragraph 111.

112. Denies the allegations of Paragraph 112.

113. Repeats and realleges Paragraphs 1-112, above.

114. Denies the allegations of Paragraph 114.

115. Denies the allegations of Paragraph 115.

116. Denies the allegations of Paragraph 116.

117. Denies the allegations of Paragraph 117.

118. Denies the allegations of Paragraph 118.

119. Repeats and realleges Paragraphs 1-118, above.

120. Admits that IBM has made contributions of source code to Linux
under the GPL, but denies the applicability or enforceability of the GPL, alleges
that part of said contributions by IBM violate SCO's contract and intellectual
property rights, and denies the remaining allegations of Paragraph 120 not
specifically admitted herein.

121. Is without information sufficient to admit or deny the allegations of
Paragraph 121, and therefore denies the same.

122. Admits that IBM has placed copyright notices on certain of its AIX and
Dynix contributions to UNIX, but denies it has the legal authority to do so,
denies the applicability or enforceability of the GPL, and denies the remaining
allegations of Paragraph 122 not specifically admitted herein.

123. Denies the allegations of Paragraph 123.

124. Denies the allegations of Paragraph 124.

125. Denies the allegations of Paragraph 125.

126. Denies the allegations of Paragraph 126.

127. Repeats and realleges Paragraphs 1-126, above.

128. Is without information sufficient to admit or deny the allegations of
Paragraph 128, and therefore denies the same.

129. Denies the allegations of Paragraph 129.

130. Denies the allegations of Paragraph 130.

131. Denies the allegations of Paragraph 131.

132. Denies the allegations of Paragraph 132.

133. Repeats and realleges Paragraphs 1-132, above.

134. Is without information sufficient to admit or deny the allegations of
Paragraph 134, and therefore denies the same.

135. Denies the allegations of Paragraph 135.

136. Denies the allegations of Paragraph 136.

137. Denies the allegations of Paragraph 137.

138. Denies the allegations of Paragraph 138.

139. Repeats and realleges Paragraphs 1-138, above.

140. Is without information sufficient to admit or deny the allegations of
Paragraph 140, and therefore denies the same.

141. Denies the allegations of Paragraph 141.

142. Denies the allegations of Paragraph 142.

143. Denies the allegations of Paragraph 143.

144. Denies the allegations of Paragraph 144.

145. Repeats and realleges Paragraphs 1-144, above.

146. Is without information sufficient to admit or deny the allegations of
Paragraph 146, and therefore denies the same.

147. Denies the allegations of Paragraph 147.

148. Denies the allegations of Paragraph 148.

149. Denies the allegations of Paragraph 149.

150. Denies the allegations of Paragraph 150.

151. Repeats and realleges Paragraphs 1-150, above.

152. Denies the allegations of Paragraph 152.

153. Denies the allegations of Paragraph 153.

154. Denies the allegations of Paragraph 154.

155. Denies the allegations of Paragraph 155.

156. Denies the allegations of Paragraph 156.

FIRST AFFIRMATIVE DEFENSE
IBM fails to state a claim upon which relief may be granted.

SECOND AFFIRMATIVE DEFENSE
IBM's claims are barred by the doctrines of waiver, estoppel, acquiescence,
and/or laches.

THIRD AFFIRMATIVE DEFENSE
IBM's contractual right to license, distribute or use AIX or Dynix has been
properly and validly terminated, and any claim based thereon is barred.

FOURTH AFFIRMATIVE DEFENSE
IBM's claims are barred by license.

FIFTH AFFIRMATIVE DEFENSE
IBM's claims are barred by illegality, collusion, conspiracy and/or lack of
clean hands.

SIXTH AFFIRMATIVE DEFENSE
The General Public License ('GPL') is unenforceable, void and/or voidable,
and IBM's claims based thereon, or related thereto, are barred.

SEVENTH AFFIRMATIVE DEFENSE
The GPL is selectively enforced by the Free Software Foundation such
that enforcement of the GPL by IBM or others is waived, estopped or otherwise
barred as a matter of equity.

EIGHTH AFFIRMATIVE DEFENSE
The GPL violates the U.S. Constitution, together with copyright, antitrust and
export control laws, and IBM claims based thereon, or related thereto, are barred.

NINTH AFFIRMATIVE DEFENSE
IBM claims are barred, in whole or in part, by the First Amendment to the U.S.
Constitution, by the doctrine of judicial immunity and by privilege.

TENTH AFFIRMATIVE DEFENSE
IBM lacks standing to assert these claims.

ELEVENTH AFFIRMATIVE DEFENSE
IBM's claims are barred or preempted, in whole or in part, by the
laws of the United States.

TWELFTH AFFIRMATIVE DEFENSE
IBM's own conduct, including that of its agents, contractors and partners,
and/or conduct of third parties constitute superseding or intervening
causes with respect to IBM's claims of damage or injury.

THIRTEENTH AFFIRMATIVE DEFENSE
SCO has acted legally and properly at all relevant times and IBM is therefore
barred from any relief whatsoever.

FOURTEENTH AFFIRMATIVE DEFENSE
IBM's purported copyright registrations are invalid and/or IBM has violated
copyright laws in respect to its claims alleged and the claims based on, or
related to, copyrights are barred.

FIFTEENTH AFFIRMATIVE DEFENSE
IBM is not, or may not be, the owner of the #746, #211, #209 or #785
Patents at issue.


SIXTEENTH AFFIRMATIVE DEFENSE
The patents at issue, and particularly the claims of those patents alleged
to be infringed, are invalid and of no effect for failure to comply with one
or more requirements set forth in Title 35 of the United States Code, including,
but not limited to Sections 101, 102, 103, 112, 116 and/or 256.

SEVENTEENTH AFFIRMATIVE DEFENSE
On information and belief, IBM's claims under the patents at issue are precluded
by the doctrine of prosecution history estoppel based on the admissions and
representations made by IBM in proceedings before the United States Patent
and Trademark Office during the prosecution of the applications of the patents
at issue.

EIGHTEENTH AFFIRMATIVE DEFENSE
On information and belief, U.S. Patent 4,814,746 ("the '746 patent) is
unenforceable by reason of IBM's inequitable conduct, acts or omissions
before the United States Patent and Trademark Office ("PTO"). The '746
patent, in a section entitled "Background of the Invention," cites one article
directed to LZ78 data compression and indicates that it is representative of
the prior art. U.S. Patent No. 4,814,746, column 1, lines 13-27. That
statement is material, false and misleading and was known by IBM to be
material, false and misleading. In fact, the single article cited in the '746
patent is not representative of the prior art. There are numerous other
techniques such as LZ77, described in an article entitled "A Universal Algorithm
for Sequential Data Compression," IEEE Transactions on Information Theory,
Vol. IT-23, No. 3, May 1977, pp. 337-343. Other types of prior art data
compression methods include run length encoding, arithmetic encoding
and Huffman encoding. The falsity of IBM's statement is also reflected by
the fact that in the period from December 9, 1975 to March 1, 1983, IBM
itself obtained the issuance of at least 31 patents directed to data compression.

On September 22, 1988, during prosecution of the continuation patent
application which led to issuance of the '746 patent, IBM filed an Information
Disclosure Statement ("IDS") with the PTO. That IDS discloses European
Patent Office ("EPO") patent publication 129439. The inventor of that
patent publication was Terry Welch. The patent publication was published
on December 27, 1984. Inexplicably, while IBM mentioned the United States
counterpart of the EPO publication, it did not cite that counterpart in the
citation of prior art. Thus, the face of the '746 patent does not contain any
reference to the U.S. counterpart. That counterpart was U.S. Patent No.
4,558,302. That patent contains claims which overlap with the '746 patent.
The Welch U.S. Patent No. 4,558,302 was filed 19 days after the '746 patent
application was filed in the PTO. The closeness of these dates implicates 35
U.S.C. Section 102(g) and raises a serious question as to who was the first
inventor of the claimed subject matter and who is entitled to the patent.
The failure to cite the U.S. counterpart, the fact that IBM waited almost three
years after the U.S. counterpart issued as a patent to even inform the PTO of
the EPO publication, and the additional fact that IBM waited until after the
claims of the '746 patent were allowed to file an IDS, were intended to deter
the Patent Examiner from comparing the claims of the U.S. counterpart to
the allowed claims of the '746 patent. These actions were material to the
examination of the '746 patent.

IBM's IDS states that the U.S. counterpart patent "apparently is an improvement
on the teaching of [another reference] and offers nothing more that would
affect the patentability of the allowed claims in this case. These statements
were material, false and misleading and were known by IBM to be material,
false and misleading. These statements and the fact that IBM cited the EPO
publication and not the U.S. patent counterpart had the effects of not only
mischaracterizing the disclosure of the Welch patent application, but also
of concealing from the PTO the overlap between the claimed subject matter
of the '746 patent and the counterpart U.S. patent.

IBM withheld additional prior art from the PTO. In February, 1981, IBM
published an article entitled "Message Compression Method." The
article was published as an IBM Technical Disclosure Bulletin, Volume
23, No. 9, pages 4197-98. That publication was material to the patentability
of the '746 patent. IBM withheld this prior art with intent to deceive the PTO.

On information and belief, U.S. Patent 5,805,785 ("the '785 patent") is
unenforceable by reason of IBM's inequitable conduct, acts or omissions
before the PTO. The '785 patent, entitled "Method for Monitoring and
Recovery of Subsystems in a Distributed/Clustered System," was filed
on February 27, 1996, listing as joint inventors Daniel Manuel Dias, Richard
Pervin King, and Avraham Leff. Applicants also filed an IDS on this date.
The IDS listed 12 references that are all U.S. patents. No other references,
including technical papers authored by one or more of the joint inventors
were listed. A review of papers authored by the three inventors reveals
several that are material to patentability. In particular, Avraham Leff's Ph.D
dissertation, entitled "A Dynamic and Decentralized Approach to Management
of CPU and Memory," published at Columbia University in 1992, is material
to the patentability of the '785 patent application. the dissertation describes
a system of resource management that does not require a centralized
coordinator. Sites cooperate in transmitting important state information
to each other. Decisions made at one site are then factored by other sites
into subsequent decisions. Because this dissertation was material to the
patentability of the '785 patent application, the dissertation should have
been disclosed to the PTO during prosecution of the '785 patent application.
IBM withheld this reference with the intent to deceive the PTO.

Inventor Daniel M. Dias appears as joint author on three papers that relate
directly to the subject matter claimed in the '785 patent. These three papers
appear to have been published at about the same time as the '785 patent
filing date of February 27, 1996. All three papers list joint authors, none of
whom, other that [sic] Mr. Dias, appears as an inventor on the '785 patent.
"A Scalable and Highly Available Web Server," published in Proceedings of
COMPCON '96, lists as authors, in addition to Mr. Dias, William Kish, Rajat
Mukherjee, and Renu Tewari. "High Availability in Clustered Multimedia
Servers," published in Proceedings - International Conference on Data
Engineering 1996, lists as authors, in addition to Mr. Dias, Renu Tewari,
Rajat Mukherjee, and Harrick Vin. "Design and Performance Tradeoffs in
Clustered Video Servers," published in Proceedings - International Conference
on Multimedia Computing and Systems 1996, lists as authors, in addition to
Mr. Dias, Renu Tewari, Rajat Mukherjee, and Harrick Vin. All three of these
papers describe concepts that can be found in the '785 patent claims, and
thus Messrs. Kish, Mukherjee, Tewari, and Vin should have been listed as
inventors on the '785 patent. IBM's decision not to list Messrs. Kish,
Mukherjee, Tewari, and Vin as inventors of the '785 patent was with
the intent to deceive the PTO.

U.S. Patent 5,129,080 ("the '080 patent"), entitled "Method and System
Increasing the Operational Availability of a System of Computer Programs
Operating in a Distributed System of Computers," filed October 17, 1990,
issued July 7, 1992, and assigned to IBM, is material to patentability of the
'785 patent, and should have been disclosed by IBM to the PTO. In particular,
the '080 patent discloses high availability architectures, cooperative processing
among nodes of a computer network, and fault recovery techniques. The
'080 patent also discloses sharing of state information among the computer
network nodes and global and local management. Because the '080 patent is
material to patentability of the '785 patent application, the '080 patent is material
to patentability of the '785 patent application, the '080 patent should have been
disclosed to the PTO during prosecution of the '785 patent application. IBM
withheld this reference with the intent to deceive the PTO.

On information and belief, U.S. Patent 4,821,211 ("the '211 patent") is
unenforceable by reason of IBM's inequitable conduct, acts or omissions before
the PTO. The '211 patent was filed on November 19, 1987 and issued on April
11, 1989. During prosecution of the '211 patent application, Applicants did
not disclose any prior art references to the PTO through filing an IDS. On
information and belief, Applicants were aware of prior art references that
were material to patentability of the '211 patent, and which, therefore, were
required to be disclosed to the U.S. Patent and Trademark Office.

More specifically, U.S. Patent 4,688,181 to Cottrell et al. ("the '181 patent"),
filed April 30, 1986 and issued August 18, 1987, and assigned to IBM was
material to the patentability of the '211 patent, but was not disclosed to the
PTO. The '181 patent was cited by the patent examiner during prosecution
of the '211 patent. Further, the '181 patent listed a number of prior art
references that were themselves material to patentability of the '211 patent.
These additional prior art references were not themselves material to
patentability of the ''211 patent. These additional prior art references
were not disclosed to the PTO during prosecution of the '211 patent.
One of the prior art references cited during the Cottrell patent application
prosecution is U.S. Patent 4,613,946 to Forman ("the '946 patent"). That
patent was also material to the patentability of the '211 patent. Thus, the
'946 patent, and the other references cited during prosecution of the Cottrell
patent application should have been disclosed to the PTO by IBM. IBM withheld
these material references with the intention to deceive the PTO.

On information and belief, IBM was aware of other references that were material
to the patentability of the '211 patent, and with deceptive intent, IBM did not
disclose these references to the PTO. For example, U.S. Defensive Publication
T980,008 ("the '008 publication"), entitled "Interaactive Design of Character-
Recognition Logics," filed July 19, 1976, published March 6, 1979, and assigned
to IBM, is material to the patentability of the '211 patent, and should have been
disclosed by IBM to the PTO. The '008 publication discloses generating graphic
display of pattern locations and a menu of operations. The '008 publication also
discloses using auxiliary operations in the menu to modify the sequence of input
patterns. Because the '008 publication is material to the patentability of the '211
patent, the '008 publication should have been disclosed to the PTO during
prosecution of the '211 patent. IBM withheld this reference with intent to deceive
the PTO.

Other references of which IBM was aware and that were required to be disclosed to
the PTO include U.S. Patent 4,731,606 to Bantz et al. ("the '606 patent), filed August
2, 1985 and issued March 15, 1988 and U.S. Patent 4,719,571 to Rissanen et al.
("the 571 patent"), filed March 5, 1986 and issued January 12, 1988, both assigned
to IBM. Both the '606 patent and the '571 patent are material to patentability of the
'211 patent, and both should have been disclosed to the PTO during prosecution of
the '211 patent. IBM withheld these references with the intent to deceive the U.S.
Patent and Trademark Office.

On information and belief, U.S. Patent 4,953,209 ("the '209 patent") is unenforceable
by reason of IBM's inequitable conduct, acts or omissions before the PTO. The '209
patent, entitled "Self-verifying Receipt and Acceptance System for Electronically
Delivered Data Objects," was filed on October 31, 1988. The '209 patent, in the
section entitled "Background of the Invention," describes only two prior art
references: U.S. Patent No. 4,757,33 to Allen et al. and U.S. Patent No.
4,757,534 ("the '534 patent") to Stephen M. Matyas el al.

The '534 patent is assigned to IBM. Stephen M. Matyasa, co-inventor of the
'534 patent, is listed as an author of more than 100 IBM publications related to
cryptography or data encryption. Mr. Matyas is also listed as an inventor on more
than 70 issued patents in this field. Mr. Matyas is well known in the field of
cryptography and data encryption at IBM. When the '209 patent application was
filed, IBM knew that some of Mr. Matyas' activities were material to the patentability
of the '209 patent. However, as noted above, only the '534 patent was l isted.
IBM failed to cite other material prior art references associated with Mr. Matyas,
including, for example, U.S. Patent 4,203,166 ("the '166 patent") in which Mr.
Matyas is listed as an inventor. The '166 patent, entitled "Cryptographic File Security
for Multiple Domain Networks," filed December 5, 1977, issued May 13, 1980, and
assigned to IBM, is material to patentability of the '209 patent, and should have been
disclosed by IBM to the PTO.

The '166 patent discloses a file security system for data files created at a first host
system in one domain and recovered at a second host system in another domain
of a multiple domain network. Specifically, the '166 patent discloses, a first host
system that provides a file recovery key for subsequent recovery of a data file at a
second host system. The first host system enciphers (modifies) the first host system
plaintext to obtain first host system ciphertext as a data file. The file recovery key
is used as header information for the data file. When the data file is to be recovered
at the second host system, the file recovery key is provided at the second host system
and the second host system transforms the file recovery key into a form, which is
usable to decipher the data file. The second host system uses the transformed file
recovery key to perform a cryptographic operation to obtain the first host system
ciphertext in clear form (unmodified) at the second host system. Thus, the '166 patent
should have been disclosed to the PTO during prosecution of the '209 patent. IBM
withheld this reference with the intention to deceive the PTO.

IBM also failed to cite U.S. Patent 4,238,854 ("the '854 patent") in which Mr. Matyas is
again listed as an inventor. The '854 patent, entitled "Cryptographic File Security for
Single Domain Networks," filed December 5, 1977, issued December 9, 1980, and
assigned to IBM, is material to patentability of the '209 patent, and should have
been disclosed by IBM to the PTO. The '854 patent was filed concurrently with
the '166 patent described above.

The '854 patent discloses that an operational key enciphered under the file key
of the designated storage media, as header information, together with the host
data enciphered under the operational key is written on the storage media as an
enciphered data file. When the data file is recovered, the host data security device
transforms the enciphered operational key header information under control of a
host master key into a form which permits the operational key to be used for
deciphering the enciphered data file to obtain the file data in clear form. Thus,
the '854 patent is material to the patentability to the claims of the '209 patent.
Because the '854 patent is material to the patentability of the '209 patent, the
'854 patent should have been disclosed to the PTO during prosecution of the
'2090 patent. IBM withheld this reference with the intention to deceive the PTO.

Matyas is also one of the authors of an article entitled "Cryptographic Key
Authentication in Communication System" published by IBM in March, 1978.
The article was published as an IBM Technical Disclosure Bulletin, March 1978,
pages 3990-92. This publication discloses that message communication
protection is obtained by enciphering a clear data message X at a host under
control of a working key KS to yield a ciphered data message Y. At the receiving
terminal, the enciphered data message Y is deciphered under control of the working
key KS to yield the clear data message X.

Another article in which Matyas is an author is entitled "Terminal Control of Encipher
and Decipher Data Operations" published by IBM in August, 1981. The article was
published as an IBM Technical Disclosure Bulletin, August, 1981, pages 1334-1339.
The publication discloses that in communication security applications where data is
to be transmitted in a cryptographic session, between a host unit and a remote
terminal controller unit, a data encrypting session key (KS) is required to be
established in a form suitable for use at each unit. Data may then be enciphered
under KS at one unit and transmitted to the other unit where it is deciphered under KS.

Thus, the above publications, published as IBM Technical Disclosure Bulletins,
are material to the patentability to [sic] the claims of the '209 patent. Because these
publications are material to the patentability of the '209 patent, these articles should
have been disclosed to the PTO during prosecution of the '209 patent. IBM withheld
these references with the intention to deceive the PTO.

The foregoing actions constitute inequitable conduct and render the claims of the '746,
'785, '211 and '209 patents unenforceable. Discover in this proceeding is ongoing, and
additional acts of inequitable conduct will be added to this defense at the appropriate time.

NINETEENTH AFFIRMATIVE DEFENSE
SCO has not infringed, literally or under the doctrine of equivalents, any valid claim
of the #746, #211, #209 and #785 Patents.


TWENTIETH AFFIRMATIVE DEFENSE
On information and belief, IBM failed to mark patent articles covered by the #746,
#211, #209 and/or #785 Patents at issue in the counterclaims. Any claim for
damages is therefore limited by 35 U.S.C. Section 287.


TWENTY FIRST AFFIRMATIVE DEFENSE
On information and belief, IBM failed to provide SCO with actual notice of
IBM's allegations of infringement of the patents at issue, and therefore IBM cannot
recover any damages for SCO's actions before the filing of IBM's counterclaims.


TWENTY SECOND AFFIRMATIVE DEFENSE
IBM has not and cannot plead and meet the requirements for an award of
enhanced damages or attorneys' fees.


TWENTY THIRD AFFIRMATIVE DEFENSE
SCO has an express or implied license to practice some or all of the claims
embodied in the patents at issue.


TWENTY FOURTH AFFIRMATIVE DEFENSE
Upon information and belief, IBM lacks standing to assert that SCO
infringed some or all of the patents at issue.


TWENTY FIFTH AFFIRMATIVE DEFENSE
SCO states that IBM's request for treble damages and attorneys fees is
barred because SCO acted in good faith, and this is not an exceptional case
within the meaning of the Patent Code.

TWENTY SIXTH AFFIRMATIVE DEFENSE
IBM has failed to join one or more parties needed for just adjudication of
the counterclaims, including but not limited to the Free Software Foundation
and contributors to the Linux 2.4 and 2.5 kernels.

WHEREFORE, having fully answered IBM amended counterclaims, SCO prays for
dismissal with prejudice of all claims, or in the alternative judgment in its favor
thereunder, together with attorneys' fees and costs, and together with all other
legal and equitable relief deemed just and proper by this Court.

JURY DEMAND

SCO demands trial by jury on all issues raised in IBM's amended counterclaims
that are so triable.


DATED this ____th day of February, 2004


Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J. Heise

By: _________________________________
Counsel for Plaintiff/Counterclaim Defendant


  




  


SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS | 91 comments | Create New Account
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SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Authored by: Anonymous on Saturday, February 07 2004 @ 02:37 AM EST
I think it was best said on the TV Series Monster House(tm):


It's like watching a dog try to die.

[ Reply to This | # ]

SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Authored by: bbaston on Saturday, February 07 2004 @ 03:07 AM EST
On TSG's dismissal of IBM's patent infringement charges:

Apparently anyone digging deep can overturn patents left and right, eh Darl? I
would expect TSG put more effort into the patent charges than the whole of all
the legal responses made so far, and I don't have a clue if they are right or
wrong.

Should Groklawyers bypass looking into patent law?

---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO, {;)}
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,

[ Reply to This | # ]

You know what would be nice?
Authored by: Scriptwriter on Saturday, February 07 2004 @ 03:25 AM EST
A table with IBM's claims on one side and SCO's responses on the other, so we
can match them up and compare them. If someone can point me to the document
containing IBM's claims, I'd be glad to put such a table together; but not
tonight, as it's past my bedtime. Maybe late tomorrow.

---
They'll take my copy of Linux when they pry it out of my cold, dead flippers.

irc.fdfnet.net #groklaw

[ Reply to This | # ]

Presentation idea for this document
Authored by: Anonymous on Saturday, February 07 2004 @ 03:53 AM EST
Is it possible to publish document mixed with paragraphs from IBM document to
which they are replying. So it would be more clear what they are denying.

[ Reply to This | # ]

Hung Drawn and Quartered – *publicly*
Authored by: SilverWave on Saturday, February 07 2004 @ 04:27 AM EST

IBM sees this case as not just a side issue.

To IBM this is an attack on THE core of what IBM is…

*Reputation!*.


This explains IBM’s decision not buy the buggers out, it would be like cutting your own throat.

Also they are going to use this case to make an example of SCO – hence the refutation of each point so no grounds for appeal.

This does not bode well for SCOG!

If this is to be an object lesson IBM will probably like to ensure that the Executive Cabal who concocted this…action are…

*publicly* Hung Drawn and Quartered

I think SCOG executives - after they stop laughing at all the money they have made – may have a very nervous time ahead after the case is proved baseless and they are held to account for the public announcements they made.

I think they will be looking over their shoulders for some time as I think IBM is after blood and once the corporate shield of SCOG is gone IBM will still be gunning for them.

If you were IBM, getting the SCOG cabal some jail time would meet the
“Object Lesson” criteria.

So…

You can’t run & you can’t hide

They’re coming TO GET YOU!



---
"Unless stopped I believe they will walk away from the rotten, decaying corpse that is SCOG a lot richer" :-(

Stopped it is then.

[ Reply to This | # ]

GPL: fact or law? Can we get an early ruling?
Authored by: xtifr on Saturday, February 07 2004 @ 04:28 AM EST
(setq IANAL t)

It seems to me that some of these points are arguments of fact and some are
arguments of law. And if my understanding is correct, the judge can rule on the
latter, but the former will have to wait for a jury. Right?

So, is the claim (sixth affirmative defense) that the GPL is "unenforcable,
void and/or voidable" a claim about facts, or a claim about law? I would
tend to think law, but I'm not completely sure. If it is a claim of law, does
that mean that one of the judges can rule on it before this all comes to trial?
There are many portions of this case that I am happy to have drag on, in order
to pound the nails that much more firmly into SCO's coffin, but it would be most
excellent to have a court finally uphold the GPL as soon as possible. That
would bring an immediate end to years of FUD from many parties.

(Yes, I'm assuming that the GPL will be upheld; I think that's a reasonable
assumption for reasons that have been discussed here before at great length.)

[ Reply to This | # ]

Just generally...
Authored by: ChrisP on Saturday, February 07 2004 @ 05:41 AM EST
Thanks Frank for scanning in all those docs, and thanks to the transcribers for
turning them into text.

We finally get to see some code!!! in the second amended complaint.

They seem to have dropped 'fraud' (old 5th defence) and 'inequitable conduct'
with the Copyright Office (old 15th defence).

Seems that they found a decent lawyer at last to check out and dispute the
patent claims. I expect this to go to trial.

Lastly a question. Were the answers in the first part of this doc, paras 1 to
156, the same as in their previous answers to IBMs counterclaims?

Sadly, I don't have the time to help...

---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.

[ Reply to This | # ]

SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Authored by: blacklight on Saturday, February 07 2004 @ 05:46 AM EST
"TWENTY FIRST AFFIRMATIVE DEFENSE
On information and belief, IBM failed to provide SCO with actual notice of IBM's
allegations of infringement of the patents at issue, and therefore IBM cannot
recover any damages for SCO's actions before the filing of IBM's
counterclaims."

IBM is in pretty good shape: the SCO Group's 21st Affirmative Defense is the
only one that is indisputable and the rest of the affirmative defenses are
extremely weak, with the possible exception of those regarding the patent claims
which I do not have the expertise to evaluate.

[ Reply to This | # ]

Doc-100-A.pdf: SCO Line numbers wrong?
Authored by: tlk nnr on Saturday, February 07 2004 @ 06:28 AM EST
Table D on page 29 lists line numbers from linux-2.4.1-01 files.
What is 2.4.1-01? I've downloaded linux-2.4.1.tar.bz2 from kernel.org, and it
doesn't match.
For example kernel/timer.c, line 688-697 is
<<<

/*
* For backwards compatibility? This can be done in libc so Alpha
* and all newer ports shouldn't need it.
*/
asmlinkage unsigned long sys_alarm(unsigned int seconds)
{
struct itimerval it_new, it_old;
unsigned int oldalarm;

<<<
At least the comment appears to be Linux specific: There is no dynix/pts for
alpha.
Did SCO define what 2.4.1-01 is?
We should try to identify the exact lines, and figure out who wrote them (and
when). Both entry.S and main.c do not change frequently, there's a good chance
that the Linux sources predate IBM's involvment in Linux, perhaps even DynixV
4.6.1

[ Reply to This | # ]

SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Authored by: Anonymous on Saturday, February 07 2004 @ 06:44 AM EST
excuse me, IANAL by far but:

with SCO dropping claims and frequently making changes to their claims, isn't
the scope of the lawsuit way different than at the start of it?

I mean, can they sue for something, make changes due to drawbacks halfway, and
then still get something out of the lawsuit??

[ Reply to This | # ]

Patent 746
Authored by: Cesar Rincon on Saturday, February 07 2004 @ 06:53 AM EST
'Morning, all. I've been reading about one of the patents that IBM is using to
slap SCO. Actually, I've been reading about all four, and intended to comment
on that, but wading in this patent stuff is surprisingly slow. And irritating:
I'm about to argue in defense of the holder of the patent for an algorithm, and
I feel mightily dirty for that. That kind of thing, patenting algorithms,
should definitely not be allowed. Some of the patents discussed below gave us
the lovely Unisys GIF fiasco...

Anyway, I found that SCO's 18th affirmative defense may be rather shaky, at
least with regard to one of the patents. And no, I'm no patent lawyer, so my
layman interpretation may be completely wrong.

Patent 4,814,746 ('746 for short), "Data compression method", March
21, 1989.

This seems to be a patent for some improvements to a data compression algorithm
called "LZ78", created by Abraham Lempel and Jacob Ziv. This
algorithm, along with one called "LZ77" also by Lempel and Ziv, is, as
you may know, the basis of LZW, which in turn is the base of GIF and many other
widely used compressed formats. LZ78 works, grosso modo, by identifying
"strings" that appear repeatedly in the input (think words or phrases,
if the input is plain text), including those strings in a "dictionary"
associated with a short "symbol," and writing in the output the symbol
instead of the original string.

From the patent, the IBM patented improvements seem to be (1) avoiding delivery
of uncompressed parts of the input data in the compressed output (in original LZ
this happens the first time a string is found in the input, with subsequent
occurrences replaced by the associated symbol in the dictionary); (2) limiting
the growth of the dictionary by adaptively discarding least used symbols; and
(3) including in the dictionary symbols that are the concatenation of two
symbols already in the dictionary (original LZ only adds concatenations of an
existing symbol and a single character).

Now, the first problem that SCO found with '746 is that the patent states that
the paper "Compression of Individual Sequences via Variable Rate
Coding", by Lempel and Ziv, is "representative of prior art."
SCO asserts that the statement is "material, false and misleading."
Why? Because there are other compression algorithms. They cite LZ77, Huffman,
run-length and arithmetic encodings as examples of other compression
techniques.

I have two issues at this point. On the first I may be wrong, since English is
not my native language, but I just don't see how "representative of prior
art" can be construed as "an exhaustive enumeration of all known prior
art." I mean, why is IBM's statement, that a paper is representative of
something, "false and misleading", just because it does not include
references to all other possible techniques? LZ78 *is* representative of prior
art, for this patent. That is a fact. That is undeniably true, regardless of
the existence of other compression algorithms.

Anyway, I feel much more safe commenting on the second issue. And that is that
SCO's lawyers seem to not even understand what the '746 patent is about. As I
read the patent, it seems to me that IBM is not patenting the concept of
"compression". Not even LZ78 compression (that was already patented,
and the patent is in fact cited in '746). The patent seems to be for certain
very specific improvements over the LZ78 technique.

SCO's references to Huffman compression (a radically different scheme, used btw
in JPEG), and the trivial run-length and arithmetic techniques, are completely
out of place here. And LZ77, while similar to LZ78, does not use a
"dictionary" in the sense of LZ78, but relies on a buffer of historic
input data, and replaces strings with offsets into the buffer.

The point is that IBM's improvements just could not be applied to any of those
techniques. So they are irrelevant even as just references. Listing them as
"prior art" would be absurd.

SCO also alleges issues with patent 4,558,302 ('302), another (in)famous patent,
which I won't describe in detail because this is already getting too long. But
specifically, SCO accuses IBM of withholding information in an attempt to
deceive the patent examiner by not disclosing sufficiently the existence and
contents of that patent, and they present quite a few theories and observations
regarding the dates on which both patents were filed. However, the relevance of
it all depends on their allegation that this patent contains claims which
overlap with the '746 patent.

Patent '302 is quite a long read. I haven't read every word, but I did scan it
somewhat carefully for references to IBM's improvements. I did not find any. In
fact, the technique presented in '302 uses the same "symbol plus single
character" concatenation that IBM stated it improved upon (so '302
obviously not contain improvements (1) and (3) above), and it does not seem to
mention anywhere the discarding of least often used symbols from the dictionary
(improvement (2), above).

So I can not see how this overlaps with the '746. On the other hand, the fact
that SCO cited this last patent reinforces my belief that they just don't
understand what '746 is about.

(Patent '302 does appear to overlap rather violently with patent 4,464,650,
which seems to be the original patent by Lempel and Ziv, granted more than a
year before---so I do find hard to believe that '302 was granted... but that is
irrelevant to the IBM patent and SCO's purposes.)

[ Reply to This | # ]

SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Authored by: Anonymous on Saturday, February 07 2004 @ 07:06 AM EST
"They would like us to believe that IBM deliberately
tried to hide prior art on four different patents. Four.
IBM. What are the odds on that? Slim? None? Laughable?"

In my time at IBM, I was actually involved in the initial
review of a patent application one of our engineers had put
together. IBM offers patent bounties to staff, so every
man and his dog puts forward anything they dream up that
they think might be patentable. The process involvs a huge
stack of paperwork, and endless levels of internal review
before it ever reaches a patent attorney. I found ample
prior art that I attached to the stack before passing it on
to the next sod. I don't know if it was ever registered.

I have no doubt that IBM produces its (un)fair share of
dodgy patents in the software realm (hardware patents are
harder to argue with), but as for deliberately hiding
masses of prior art, one word: discoverability. There's
too big a paper trail left around IBM to be able to hide if
it was ever challenged in court (or is this privaleged
material?)

IBM are the world's best patent attorneys with the worlds
biggest patent portfolio at their disposal. They would
have carefully selected the patents that they knew would
stand up to any challenges.

John.

[ Reply to This | # ]

OT: Gramps and jumping the shark
Authored by: Anonymous on Saturday, February 07 2004 @ 08:12 AM EST
My grampa was a trial lawyer in the middle of the last
century. Generally gramps knew he had already won when the
apposing attorney would get into some rediculous tangent
and try invoking "hitler" (later communists) in open court
as somehow related to the case. This then is the parallel
I find to yesterday's court performance by Heis and their
ammended complaint.

[ Reply to This | # ]

Attention PJ - request for comparison document
Authored by: Anonymous on Saturday, February 07 2004 @ 08:48 AM EST
I posted this in the more recent discussion too:


PJ, please -- request for a comparison document. Similar to the two-way
comparison you did earlier.

In this case it would be:
1. IBM's counterclaims
2. SCO previous response to each counterclaim
3. SCO's proposed amended response

I did a cursory examination of 3 from your old story, and there are some truly
BIZARRE things in there.

For example, in IBM's copyright counterclaim.

SCO seems to say they deny that IBM has the right to copyright IBM's own work!
I wonder if this is a new invention (?)

[ Reply to This | # ]

  • Table - Authored by: grouch on Saturday, February 07 2004 @ 12:31 PM EST
Heise countered that "not everything they have put into Linux is public,"
Authored by: Anonymous on Saturday, February 07 2004 @ 09:21 AM EST
Quote

"Heise countered that "not everything they have put into Linux is
public," and that pointing SCO to the Internet did not amount to
"complete disclosure" it seeks from IBM."

Unquote

http://www.sltrib.com/2004/Feb/02072004/business/136590.asp

Apparently the SCO theory is that there are "things in Linux" that
cannot be seen by reading the code.

I'm trying to wrap my mind around this.

Could a judge buy this?

MH

[ Reply to This | # ]

SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Authored by: Anonymous on Saturday, February 07 2004 @ 10:05 AM EST
53. still mentions trade secrets, I thought SCO had dropped
that charge...

[ Reply to This | # ]

Do SCO even bother to proof read:
Authored by: Anonymous on Saturday, February 07 2004 @ 10:10 AM EST
New proposed pleading:

53. Admits it alleges that IBM has breached contractual obligations to SCO by, among other things, incorporating and inducing others to incorporate source code in the Linux kernel in violation of SCO's contractual and intellectual property rights, and that IBM has competed unfairly, interfered with SCO contract rights with others and misappropriated and/or misused trade secrets, but denies the remaining allegations of Paragraph 53 not specifically admitted herein.

I thought they just admitted that IBM do not misappropriate or misuse any trade secrets in the proposed 2nd amended complaint!

[ Reply to This | # ]

Isn't this perjury?
Authored by: Anonymous on Saturday, February 07 2004 @ 11:21 AM EST
2. Admits that it respects the intellectual property rights of others, but denies the remaining allegations of Paragraph 2.

SCO owes me a new keyboard. The Blake Stowell just keeps piling higher and higher.

[ Reply to This | # ]

Isn't this the "third rail" of the GPL?
Authored by: Anonymous on Saturday, February 07 2004 @ 12:13 PM EST
SIXTH AFFIRMATIVE DEFENSE The General Public License ('GPL') is unenforceable, void and/or voidable, and IBM's claims based thereon, or related thereto, are barred.
If the they claim the GPL is void, what license have given them permission to distribute the copyrighted work of Torvalds et al. ?

If I remember/understands FSF's legal-pages correct (eventhough IANAL), this is exactly the case E. Moglen talks about in the context of GPL's self-enforcability.

[ Reply to This | # ]

OT:DNA's improbability drive
Authored by: phrostie on Saturday, February 07 2004 @ 12:17 PM EST
yesterday i was talking with a coworker when he made a comment about having his
towel ready and was not going to panic. several people looked at him kind of
funny but kept walking past. i laughed because i have always been a Douglas
Adams fan as well. later i was reading one of the articles about TSGs request
to have ALL AIX code ever written. it was an astronomical figure. i forget how
many Zeros there were, but it was a lot of lines of code.

this morning(i know i'm rambling but there is a point to this) the light bulb
went off. TSG is taking the improbability drive aporoach to finding common
code.
where is an MIT rocket scientist when you need them.

it does not matter if IBM contributed code. with that many lines of code you
will find "lines" that are similar.


the same would hold true if you did the same comparison of every line of every
version of windows. you will find similar code. that does not mean that
Microsoft has stolen code from linux or contributed to it.

it is a mathmatical probability.
they only want a few lines to wave around so they can say "see, here it
is"


---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux

[ Reply to This | # ]

# 155 -SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Authored by: Terry on Saturday, February 07 2004 @ 02:20 PM EST

IBM's Amended Complaint:

155. There is a justiciable controversy between IBM and SCO with respect to all of the issues described above.

SCO's Amended Answer:

155. Denies the allegations of Paragraph 155.

Legal definition of "Justiciable":

Issues and claims capable of being properly examined in court.

Link - Justiciable:

Now IANAL, but I think SCO just told the court that there are no issues at law or fact (proper venue of courts in contoveries) in IBM's counterclaims.

Then again, maybe they're just saying that since SCO now admits to the allegations in paragraphs 3, 5, 6, 7, 9, 43 & 96 so there is not a

    "justiciable controversy between IBM and SCO with respect to all of the issues"

in the amended counterclaim.

---
"You can fool some of the people all the time. You can fool all the people some of the time. But you can't fool all the people all the time." --Abraham Lincoln.

[ Reply to This | # ]

Semi-OT: Distributed Proofreaders
Authored by: scoro on Saturday, February 07 2004 @ 02:29 PM EST
Hi, I don't know if this has been suggested before, but with the volume of text that needs to be translated from PDF's etc whether or not it's possible, or feasible to investigate some sort of system like DP has.

This seems to work very well for them, and would also mean that we are not relying on just a few people to translate > 300 pages to raw text/html. I'm not really any help on the legal side (med student), but raw mindless activity when I have the time, I can do.

The source for DP is also open source, so could be modified to more tightly fit groklaw's needs.

[ Reply to This | # ]

A few corrections
Authored by: Anonymous on Saturday, February 07 2004 @ 05:07 PM EST
My apologies if this has already been covered. I did read through the first twenty or so top-level posts, but I did not read everything.

There seem to be many comments, but few corrections. I noted a few errors, so I offer them for correction here.

The text in bold is duplicated.

Because the '080 patent is material to patentability of the '785 patent application, the '080 patent is material to patentability of the '785 patent application, the '080 patent should have been disclosed to the PTO during prosecution of the '785 patent application.

The text in bold is duplicated.

Further, the '181 patent listed a number of prior art references that were themselves material to patentability of the '211 patent. These additional prior art references were not themselves material to patentability of the ''211 patent. These additional prior art references were not disclosed to the PTO during prosecution of the '211 patent.

Interactive is mispelled here.

For example, U.S. Defensive Publication T980,008 ("the '008 publication"), entitled "Interaactive Design of Character- Recognition Logics,"

There is a space in the word listed here.

When the '209 patent application was filed, IBM knew that some of Mr. Matyas' activities were material to the patentability of the '209 patent. However, as noted above, only the '534 patent was l isted.

This should probably be discovery.

Discover in this proceeding is ongoing, and additional acts of inequitable conduct will be added to this defense at the appropriate time.

Howard C. Shaw III

[ Reply to This | # ]

SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Authored by: jccooper on Saturday, February 07 2004 @ 05:21 PM EST
I'm very amused with their responses to #17 and 18.

But then, I suppose it is asking too much for lawyers to do a little research.
It's not like these facts are well-documented, have never been disputed, and are
widely presented in books and on the internet.

[ Reply to This | # ]

SCO'S AMENDED ANSWER TO IBM'S AMENDED COUNTERCLAIMS
Authored by: jccooper on Saturday, February 07 2004 @ 06:18 PM EST
This in an amazing document. Entirely ignoring that IBM's original counterclaim
has them dead to rights, some if the responses SCO makes are sloppy at best.

They roundly refuse to agree as fact that (among other things):

* Caldera used the GPL and thus must have accepted it. (I have an OpenLinux box
containing lots of GPL software which suggests otherwise.)

* SCO/Caldera at one time participated in OSDL or any similar organizations.
(Like UnitedLinux, for example, of which they are still a member and have
refused to resign.)

* Caldera, upon acquiring SCO assets, decided to change their business plan to
unify and integrate Unix and Linux. (Ransom Love and others are on record --
probably even on sco.com -- saying exactly that.)

* Caldera was created to offer Linux-based business solutions. (Caldera's
slogan at one point: "Linux for Business.")

* SCO nee Caldera sold specific products. (Some of these they are selling RIGHT
NOW.)

* SCO threatened litigation against Linux end users in their letters.

* Linux developers have publically stated that they are willing to remove any
truly infringing code, and that SCO has never shown any. (Linus, ESR, and others
are clearly on record with such statements, and clearly SCO has never shown any
such code.)

* SCO showed "evidence" in Las Vegas and said that it was due to IBM
misconduct. (Darl is on film doing this.)

And these are just the trivially provable points. One might also add to this
list a number of statements of fact about the origin of Linux which could have
been researched in a few minutes.

Many others are contradictory. For instance, SCO
"Admits that the GPL allows a licensee to distribute copies of free
software, receive source code and change and use the software in new free
programs but is without information sufficient to admit or deny the remaining
allegations of Paragraph 26 not specifically admitted herein and therefore
denies the same."

Yet in other places they refuse to admit validity of the GPL.

I cannot even dream up any possible benefit SCOX could derive by refusing to
settle such obvious points of fact. Perhaps they think that one of the IBM
lawyers' 13-year-old son needs some practice surfing the net?

I would imagine the court will not be as amused as I am when IBM's response
rolls in.

[ Reply to This | # ]

Denial
Authored by: Anonymous on Sunday, February 08 2004 @ 11:03 AM EST
Details of IBM's Counterclaims and SCO's Answers are laid out in Grouch's draft table here.
It appears to me that SCO is making excessive use of "denials" in this answer.

Firstly "deny" appears to be the standard response to everything, unless they find themself forced into agreement.

As already detailed, this kneejerk reaction appears to have resulted in giving the wrong response to 155 (perhaps a trap laid by IBM, perhaps just SCO carelessness) :
IBM: "There is a justiciable controversy between IBM and SCO with respect to all of the issues described above"
SCO: "Denied"
If it's not justiciable (ie capable of being examined in court), how do they propose handling it? Trial by Media? Trial by combat?

It appears that "deny" is being used for two distinct replies - both "No, we disagree" and "We don't know". Perhaps this is normal practice, but it seems unhelpful.

Additionally the "We don't know" cases appear to fall into two categories - "You haven't given us enough information yet" (which is fair enough), and "We haven't bothered to look at it yet".

As already reported, 17 and 18 appear to be unsatisfactory responses - they appear to be "We haven't bothered to look at it yet"
18 IBM: "With the internet providing for a distributed collaboration, other programmers joined to create code making up the kernel. Linus Torvalds directed the collaboration to a version 1.0 release of the Linux kernel in 1994."
SCO: "Is without information sufficient to admit or deny the allegations of Paragraph 18, and therefore denies the same."

Another odd one is 121 :
IBM: "IBM holds the following certificates of copyright from the United States Copyright Office (copies of which are attached hereto as Exhibits O - U), among others: "
SCO: "Is without information sufficient to admit or deny the allegations of Paragraph 121, and therefore denies the same."
It's not clear what SCO is lacking - were the copy certificates missing from their copy, or are they considering the possibility IBM might have dropped the originals on the floor, and thus not be holding them, or are they unable to accept the "among others" without proof that others exist (or some investigation on their part)?

[ Reply to This | # ]

  • Oops - Authored by: Anonymous on Sunday, February 08 2004 @ 11:08 AM EST
Patent 785
Authored by: Cesar Rincon on Sunday, February 08 2004 @ 05:07 PM EST
Good afternoon. This post is a continuation of sorts of my previous post,
regarding the patents that SCO is being clobbered with. This is a bit longish
(hi, the_flatlander and Wally Bass! Thanks for your encouraging words), and may
be a bit of a small matter, too. A side show, if you will. But, on the other
hand, this patents are different from other aspects of the case in that they
seem quite clear-cut, leaving SCO very little room to wiggle around. So they
may end up being one of the strongest nails in SCO's coffin.

I thought you may be interested in this.

Patent 5,805,785 ('785 for short), "Method for monitoring and recovery of
subsystems in a distributed/clustered system", Dias, et al., September 8,
1998

Reading this patent was particularly eery for me, because I realized that at
some point I myself may have infringed on it, in the design of a system for some
company I've been involved with (IBM: please don't sue me, the implementation
was never completed, much less distributed). I understand Linus' advice now,
more than ever, that software developers should not concern themselves with
patents. Progress in IT would simply come to a halt if we start doing that. You
see, now I feel that I'm forbidden to ever again design a system like that. At
least until this patent expires.

Oh well. I did not want to, anyway. So there.

Patent '785 covers a system for monitoring arbitrary processes running on
multiple hosts or devices, and also to automatically execute arbitrary recovery
procedures when a failure is detected. By "arbitrary" I mean
customizable by the administrator of the system. The patent describes some
"monitor" processes in charge of watching the systems, which generate
a "heartbeat" signal and notifications for events; some "event
handlers" that catch and analyze the notifications from the monitors; and
some "recovery drivers" in charge of executing and supervising
recovery actions. And it goes on describing the precise manner in which this
monitoring system organizes itself, including some rather cute nomenclature that
involves running "elections" among the nodes (kind of like Samba and
Microsoft's SMB) to choose "coordinators", "directors" and a
"chairman".

To put this in context, think of a distributed system, say Google, in which
hundreds (thousands?) of servers work together to provide search results. IBM's
patent does not cover the network connection scheme between all of those
servers, and it does not cover whatever methods Google uses to synchronize their
work. It does not cover even the mechanisms, which I'm sure Google has, by
which a malfunctioning node is worked around and other nodes assume its share of
the load. What the patent does cover is a very particular mechanism by which
malfunctions could be detected and reported in Google's nodes, and recovery
procedures triggered. So this patent probably applies to software such as IBM's
own Tivoli, or Cisco's CiscoWorks. That kind of thing.

Now patent '785, ominous as it is, seems solid enough. And indeed SCO does not
try to question its contents, but complains about certain technicalities in the
patent registration (a repeating pattern in SCO's 18th affirmative defense, it
seems). Specifically, they call foul on the fact that the inventors of the
patent had been busy publishing papers which are not cited as references in
'785; and that those papers name authors that should be listed as inventors in
the patent application. Weak as it sounds, that seems to be their beef.

First, SCO cites Mr. Avraham Leff's Ph. D. dissertation, "A Dynamic and
Decentralized Approach to Management of CPU and Memory," from February
1992. Unfortunately the contents of this paper does not seem to be available
online. The Columbia University Libraries Online Catalog, CLIO, calls it a
"Rare Book (Storage) Request at Rare Book Library." It is also
available on 35 mm microfilm, so someone at Columbia may want to drop by the
Butler Microform Reading Room and ask for MICROFLM FC92-21,177.

It may be not worth the effort, though.

The other papers that SCO cites are coauthored by Mr. Daniel M. Dias, also
listed as inventor in patent '785. These are: "A Scalable and Highly
Available Web Server" (paper #1), "High Availability in Clustered
Multimedia Servers" (paper #2), and "Design and Performance Tradeoffs
in Clustered Video Servers" (paper #3). All three are from 1996, and all
three are readily available from CiteSeer. And I downloaded all three gzipped
PostScript files and actually read them through (alright, I skipped the
equations, I confess).

Paper #1 describes a prototype of, obviously enough, a distributed web server.
The prototype is composed of a number of web server nodes, domain name servers
and "TCP routers" (which seem to be just DNAT forwarders smart enough
to do load balancing among a range of destination servers---Linux does this
rather nicely, btw). They discuss the relative merits of two common techniques
for HTTP load distribution, namely DNS round-robin and said forwarders, with
emphasis in load imbalances. At some point they tell us how they set up a
system of 16 server nodes, and arranged for 80 clients per server node to fire
requests every 15 seconds, and comment on the results.

All of this is fascinating. Really, very interesting. Also, very detached from
systems monitoring. But then, section 4 of the paper, "High
Availability," does in fact describe the mechanism they used to deal with
node failures, which actually involves a "heartbeat,"
"monitors," and a "recovery handler." They talk about how
they cleverly rigged their prototype for IP takeover of malfunctioning front-end
nodes, and how they set up backend twin-tailed RAID arrays (more on twin-tailing
below). However, this was not what the paper was about---they were discussing
distributed web service, and they offer quite in-depth details about that. This
scheme for failure recovery was not being presented in this paper, and their
reference to it only superficial. I feels as just a note to the reader, that
they used some known techniques introduced and described, presumably,
elsewhere.

And sure enough, the reader is directed to several bibliography entries for
details on the topic. One of those entries is paper #2. Other is
"Processor Group Membership Protocols: Specification, Design and
Implementation," by F. Jehanian, S. Fakhouri, and R. Rajkumar, which,
funnily, is referenced also from patent '785 itself, in its description of its
own heartbeat processes. So much for the seminal work in paper #1 that evolved
into patent '785.

Papers #2 and #3 deal with a model of "clustered multimedia servers".
Paper #2 seems to be theory only; paper #3 also presents results from a monster
prototype built with RS/6000 machines (you may remember the RS/6000 as the
machine that beat Kasparov back in '97). The clusters described here act as
huge disk servers able to deliver thousands of video streams concurrently, and
the papers discuss a variety of techniques used to deal with disk or node
failures, focusing in their real-time performance to ensure continuous service.
Specifically, they delve, in excruciating detail, into the advantages and
cost/performance of mirroring, twin-tailing, and software RAID with different
parity schemes. Again, fascinating stuff. And again, quite unrelated to patent
'785.

In fact, the most interesting thing about these papers, with regard to our topic
of interest, is that they do not mention anywhere any kind of technique for
detecting failures in the system. Sure, they can overwhelm you with insight on
how to keep the video flowing smoothly after something fails, but they don't
specify any particular method for the system to monitor the state and well-being
of its nodes. The only thing these papers contain in common with patent '785,
and with paper #1 for that matter, is "twin-tailing".

Twin-tailing is nothing more than connecting multiple computers to a single
disk, or disk array. These computers are called "buddy systems", and
the idea is that, if one of the systems fail, its buddy just takes over, keeping
the information in the disk available to the rest of the distributed system
(failures in the disk itself are dealt by other means). Patent '785 refers to
the twin-tailing technique in its description of Fig. 1, which illustrates the
"preferred embodiment" of the invention. The reference is provided
while describing how "the infrastructure for building a highly available
system" is "incorporated" into the preferred embodiment (or
perhaps into the diagram), right before the authors dive into how the components
actually described in the patent claims fit into the system.

Now, back to SCO's allegations. First, they claim that these three papers
"relate directly to the subject matter claimed in the '785 patent."
Please pardon my French, but... what the hell? I spent hours digging into the
three papers and this cursed patent, trying hard to see how can they can
possibly relate to each other, and all I got was a passing reference, not a
description, mind you, to "monitors" and "recovery
handlers," and a way of connecting a stupid disk. I mean really, how can
they claim that those papers are "directly related" to patent '785 is
beyond me.

They also complain that, of all of the authors of the three papers, only Mr.
Dias was listed as inventor of patent '785. They claim that "IBM's
decision" not to list them all as inventors was "with the intent to
deceive the PTO."

Right. Giving SCO as much slack as I can possibly give, and ignoring for the
moment the fact that this argument for contesting the validity of a patent seems
quite stretched, and that the papers deal with completely different topics than
that of the patent, this is interesting because the three papers were published
by IBM Research Division, T.J. Watson Research Center, New York. Now, I can
picture, sort of, how one could be deceitful in not listing an independent
author, and how that could lead to the patent being questioned by that author.
But all of these people were IBM researchers, working for IBM (in several
different projects, it seems), and the '785 patent was assigned to IBM. So this
is IBM patenting the result of some research funded by IBM itself. Where's the
deceit in that?

Or, to look at it in yet another way, what interest, or "control
rights," as SCO would put it, could an unlisted IBM researcher claim over a
patent assigned to her company? Or, for that matter, what rights could a listed
inventor could claim? None, I guess. So what practical difference would it
make if an IBM researcher is listed or not as inventor?

Hum.

SCO dudes and gals, if you are reading this far, would you mind a piece of
advice from this humble programmer? Your defense against patent '785 seems
awfully fragile. Even more than your defense against '746. You may want to
revise them (if the judge lets you), because it seems to me that Marriot and
Shaughnessy will have a field day with this. Why don't you dig into some SNMP
or SMB papers? That would probably be at least a bit related to the point.

Realistically, though, if I were in your place, I would be begging IBM to cut a
deal with me. I know, pleading for mercy does not really fit with your
management, but hey, this may be as good a time as any to lose the Darl and try
some non-suicidal paths out of this. He's really taking you down in flames, you
know.

Anyway. Enjoy the rest of your weekend. My daughter sends love to you
all---your affirmative defenses make excellent bedtime-story material for a
(lovely) 3 month old girl.

[ Reply to This | # ]

Are these denials acceptable?
Authored by: GLJason on Sunday, February 08 2004 @ 07:15 PM EST
There are many paragraphs where IBM states facts and SCO doublt-talks to say they 1/2 agree with some and completely deny others. Is that allowed? If they say they agree to part of a paragraph and deny everything else, does that mean they are specifically saying that it is not true?

For instance, in paragraph 120, IBM States:

120. As stated, IBM has made contributions of source code to Linux under the GPL. IBM is, and at all relevant times has been, the owner of valid copyrights in these contributions, as well as of all the rights, title and interest in those copyrights.

And SCO says:

120. Admits that IBM has made contributions of source code to Linux under the GPL, but denies the applicability or enforceability of the GPL, alleges that part of said contributions by IBM violate SCO's contract and intellectual property rights, and denies the remaining allegations of Paragraph 120 not specifically admitted herein.

Doesn't that mean that SCO is denying under oath that IBM is the valid copyright holder to works that IBM created?

What about paragraph 64?

64. Rather than particularize its allegations of misconduct by IBM and others, SCO has obfuscated and altered its claims to foster fear, uncertainty and doubt about its rights and the rights of others. In letters dated April 2, 2003, and May 5, 2003, attached hereto as Exhibits M and N, respectively, IBM expressly asked SCO to advise IBM as to what SCO contends IBM has done in violation of any of its agreements, and what SCO contends IBM should do to cure such violations. SCO refused. In fact, SCO's counsel indicated, in an interview with Maureen O'Gara of LinuxGram, that it "doesn't want IBM to know what they [SCO's substantive claims] are".

SCO Says:

64. Admits that IBM sent letters dated April 2, 2003 and May 5, 2003 but denies the remaining allegations of Paragraph 64 not specifically admitted herein.

IBM says that they sent letters asking for evidence and SCO refused and had a quote from their counsel. SCO admits IBM sent letters but denied everything else. Does that mean they are on record denying that they refused to tell IBM of the allegations, and denying that SCO Counsel said what they claimed they said? Wouldn't that piss off a judge explicitly denying a fact that can easily be checked?

[ Reply to This | # ]

GPL Invalid? Then can't distribute...
Authored by: GLJason on Sunday, February 08 2004 @ 11:29 PM EST
Here's at least one case about a company giving away some rights for free. Judge ruled that there may be some question as to whether the license was binding, but it didn't matter. If it was, then the derivative works could only be distributed for free. If it wasn't valid, there was no basis for distributing the derivative works.

http://cyber.law.harvard.edu/openlaw/DVD/cases/Micro_Star_v_Formgen.html

It's about the creators of Duke Nuke'em 3D suing a company selling levels to the game. They gave out a free license for players to create levels, but said they must be distributed solely for free. This company used their editor to create new levels and sold them on a CD.

Here's one of the paragraphs (my emphasis added):

Micro Star also argues that it is the beneficiary of the implicit license FormGen gave to its customers by authorizing them to create new levels. Section 204 of the Copyright Act requires the transfer of the exclusive rights granted to copyright owners (including the right to prepare derivative works) to be in writing. See 17 U.S.C. S 204(a); Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 556 (9th Cir. 1990). A nonexclusive license may, however, be granted orally or implied by conduct. See Effects, 908 F.2d at 558. Nothing indicates that FormGen granted Micro Star any written license at all; nor is there evidence of a nonexclusive oral license. The only written license FormGen conceivably granted was to players who designed their own new levels, but that license contains a significant limitation: Any new levels the players create "must be offered [to others] solely for free." The parties dispute whether the license is binding, but it doesn't matter. If the license is valid, it clearly prohibits commercial distribution of levels; if it doesn't, FormGen hasn't granted any written licenses at all.

[ Reply to This | # ]

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