|
Table - IBM Counterclaims and Both SCO Answers |
|
Monday, February 09 2004 @ 03:11 AM EST
|
In true Groklaw tradition, Ken Herron got creative and emailed me this wonderful chart. I love being able to see at a glance, first, what IBM said in it Counterclaims, second, what SCO initially answered, and third, what SCO now is saying in its Amended Answer. As always, many eyeballs make it easy to spot any errors, so here we go. New material is red text; deleted or moved is blue. For example, the original Fifteenth Affirmative Defense is now the Eighteenth, where it is greatly expanded.
IBM Counterclaims
|
SCO's Answer
|
SCO's Amended Answer
|
NATURE OF COUNTERCLAIMS
|
1. These counterclaims arise from SCO's efforts wrongly to
assert proprietary rights over important, widely-used technology and to
impede the use of that technology by the open-source community. SCO has
misused, and is misusing, its purported rights to the Unix operating
system developed originally by Bell Laboratories, then a research and
development arm of AT&T Corp., to threaten destruction of the
competing operating systems known as AIX, Dynix and Linux, and to
extract windfall profits for its unjust enrichment.
|
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.
|
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. IBM's counterclaims also arise from SCO's infringement of
IBM copyrights and patents. Although SCO purports to respect the
intellectual property rights of others -- and has instituted litigation
against IBM for alleged failures with respect to SCO's purported rights
-- SCO has infringed and is infringing a number of IBM copyrights and
patents.
|
2. Admits that it respects the intellectual property rights of
others, but denies the remaining allegations of Paragraph 2.
|
2. Admits that it respects the intellectual property rights of
others, but denies the remaining allegations of Paragraph 2.
|
JURISDICTION AND VENUE
|
3. This Court has jurisdiction over IBM's counterclaims
pursuant to 28 U.S.C. §§ 1331, 1332(a)(l), 1338(a) and (b),
1367, 2201(a) and 2202 and 15 U.S.C. § 1125(a)(l).
|
3. Admits the allegations of Paragraph 3.
|
3. Admits the allegations of Paragraph 3.
|
4. The Court has diversity and supplemental jurisdiction over
IBM's state law claims. The parties have complete diversity of
citizenship, and the amount in controversy exceeds $75,000, exclusive
of interest and costs. IBM's Lanham Act, copyright and patent claims
arise under federal law.
|
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.
|
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. Venue is proper in this district, with respect to IBM's
counterclaims, pursuant to 28 U.S.C. §§ 1391(b), 1391(c), and
1400(a) and (b).
|
5. Admits the allegations of Paragraph 5
|
5. Admits the allegations of Paragraph 5.
|
PARTIES
|
6. Counterclaim-plaintiff IBM is a New York corporation with
its principal place of business in the state of New York.
|
6. Admits the allegations of Paragraph 6
|
6. Admits the allegations of Paragraph 6.
|
7. Counterclaim-defendant SCO is a Delaware corporation with
its principal place of business in Utah County, Utah.
|
7. Admits the allegations of Paragraph 7
|
7. Admits the allegations of Paragraph 7.
|
BACKGROUND
|
A. Unix
|
8. Unix is a name used to characterize a family of operating
systems that share common characteristics and meet certain
well-publicized "UNIX" standards. The earliest Unix operating system
was built by software engineers at Bell Laboratories, the research
division of AT&T.
|
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.
|
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. Over the years, AT&T Technologies, Inc., a wholly owned
subsidiary of AT&T, and its related companies licensed Unix
operating systems for widespread enterprise use. AT&T's Unix
software has been licensed to many thousands of persons or entities.
|
9. Admits the allegations of Paragraph 9.
|
9. Admits the allegations of Paragraph 9.
|
10. In 1993, AT&T sold its Unix assets -- then held by its
subsidiary, Unix System Laboratories, Inc. ("USL") -- to Novell, Inc.
("Novell"). In 1995, Novell sold some, not all, of its Unix assets to
The Santa Cruz Operation, Inc., now known as Tarantella, Inc.
("Original SCO"), which is not affiliated with counterclaim-defendant
SCO.
|
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.
|
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. Counterclaim-defendant SCO played no role in the
development of Unix. But it purports to have acquired Original SCO's
rights to Unix in 2001. Based upon the rights it purports to have
acquired from Original SCO, SCO has undertaken the scheme described
herein.
|
11. Denies the allegations of Paragraph 11.
|
11. Denies the allegations of Paragraph 11.
|
B. IBM and Unix
|
12. In the mid-1980s, IBM acquired broad rights to use Unix
software pursuant to a series of agreements with AT&T Technologies,
Inc. These agreements, referred to as the "AT&T Agreements",
include the Software Agreement (Agreement Number SOFT-00015) dated
February 1, 1985, the Sublicensing Agreement (Agreement Number
SUB-00015A) dated February 1, 1985, the Substitution Agreement
(Agreement Number XFER-000l5B) dated February 1, 1985, the letter
agreement dated February 1, 1985, and the Software Agreement Supplement
170, as amended by a letter agreement dated on or about January 25,
1989. Copies of these agreements are attached hereto as Exhibits A - F,
respectively.
|
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.
|
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. In connection with the proper exercise of these and other
rights previously obtained by IBM with respect to Unix, IBM began
development of its own version of a Unix operating system, called AIX.
Over the last two decades, IBM has expended tremendous resources on
developing AIX, creating millions of lines of original code,
incorporating it into its product lines and licensing the technology to
thousands of customers worldwide. IBM continues to do so today.
|
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.
|
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. Like IBM, Sequent Computer Systems, Inc. ("Sequent")
developed a version of a Unix operating system known as Dynix. IBM
acquired Sequent by merger in 1999.
|
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.
|
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. On October 17, 1996, after Novell and Original SCO
acquired AT&T's rights to Unix, IBM obtained additional rights with
respect to Unix software. Pursuant to an agreement known as Amendment
X, entered into by IBM, Novell and Original SCO, IBM acquired, for
example, the "irrevocable, fully paid-up, perpetual right to exercise
all of its rights" under the AT&T Agreements. A copy of this
agreement is attached hereto as Exhibit G.
|
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.
|
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.
|
C. Linux
|
16. Linux is an operating system that stems from a rich
history of collaborative development. Linux is a dynamic and versatile
operating system and is, for many, the operating system of choice.
|
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.
|
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. The development of Linux began when an undergraduate
student at the University of Helsinki, by the name of Linus Torvalds,
set out to create a new, free operating system. In 1991, Linus Torvalds
began developing the Linux kernel, the core of the operating system,
and posting news of his project to internet newsgroups, along with a
call for volunteers to assist in his efforts.
|
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.
|
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. 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.
|
18. Is without information sufficient to admit or deny the
allegations of Paragraph 18, 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. In the years that followed, thousands of developers,
including developers at IBM, contributed to the further development of
Linux. Version 2.4 of the Linux kernel was released in 2001. IBM owns
valid copyrights in its contributions to Linux, as illustrated below.
|
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.
|
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. The first commercial distribution of Linux was introduced
in 1994 by Red Hat. Thereafter, other distributors, including SCO,
introduced a number of commercial Linux products, which typically
comprise the Linux kernel, the applications that the kernel runs
(which, with the kernel, comprise a complete operating system) and
whatever else the distributor chooses to combine into an easily
installable product.
|
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.
|
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.
|
D. Open-Source Software and the GPL
|
21. Linux is open-source software. Open-source software is
free in the sense that it is publicly available, royalty free, and
users have the freedom to run, copy, distribute, study, adapt, and
improve the software.
|
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.
|
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. Whereas traditional software licenses often reflect legal
limitations restricting the use and reproduction of original works, the
open-source community has taken a different approach to licensing. The
open-source community, including SCO, resolved to license Linux so as
to keep the source code publicly available. Due to the open-source
nature of Linux, anyone can freely download Linux and many Linux
applications and modify and re-distribute them with few restrictions.
|
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.
|
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. There are a variety of open-source licenses, but the most
popular is the GNU General Public License (the "GPL"), a copy of which
is attached hereto as Exhibit H. The Linux kernel, and significant
portions of the larger Linux operating system, are distributed under
the GPL.
|
23. Admits the allegations of Paragraph 23 but denies
enforceability or applicability of the GPL.
|
23. Admits the allegations of Paragraph 23 but denies
enforceability or applicability of the GPL.
|
24. In fact, one of the most important decisions Linus
Torvalds made was to develop the Linux kernel under the GPL and keep
the source code freely distributable so others could build upon,
modify, and develop programs for the operating system.
|
24. Is without information sufficient to admit or deny the
allegations of Paragraph 24, and therefore denies the same.
|
24. Is without information sufficient to admit or deny the
allegations of Paragraph 24, and therefore denies the same.
|
25. Whereas the licenses for most software are programs
designed to limit or restrict a licensee's freedom to share and change
it, the GPL is intended to guarantee a licensee's freedom to share and
change free software -- to make sure the software is free for all its
users. The GPL applies to any program whose authors commit to using it.
|
25. Admits that the GPL purports to guarantee the right to
freely share and change free software, but denies that the GPL applies
to an 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.
|
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. The GPL is designed to make sure that a licensee has the
freedom to distribute copies of free software, receives source code or
can get it if the licensee wants it, can change the software or use
pieces of it in new free programs and knows the licensee can do these
things.
|
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.
|
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. The Linux kernel is subject to the GPL as it is comprised
of programs and other works that contain notices placed by contributing
copyright holders permitting distribution under the terms of the GPL.
The Linux developers' public agreement to apply GPL terms expresses in
a binding legal form the conscious public covenant that defines the
open-source community -- a covenant that SCO itself supported as a
Linux company for many years.
|
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.
|
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. SCO accepted the terms of the GPL by modifying and
distributing Linux products. By distributing Linux products under the
GPL, SCO agreed, among other things, not to assert -- indeed, it is
prohibited from asserting -- certain proprietary rights over any
programs distributed by SCO under the terms of the GPL. SCO also agreed
not to restrict further distribution of any programs distributed by SCO
under the terms of the GPL.
|
28. Denies the allegations of Paragraph 28.
|
28. Denies the allegations of Paragraph 28.
|
E. SCO's Business
|
29. SCO was founded as Caldera, Inc. in 1994, approximately 25
years after the beginning of the development of Unix and three years
after Linus Torvalds began the development of Linux, to develop
Linux-based business solutions. In 1998, Caldera, Inc. sold its assets
relating to its business of developing and marketing Linux to Caldera
Systems, Inc., a newly formed corporation.
|
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.
|
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. SCO began its business as a developer and distributor of
the Linux operating system. By 2001, according to SCO, it led the
world's largest Linux channel with more than 15,000 resellers
worldwide.
|
30. Admits that it has distributed certain versions of the
Linux operating system but denies the remaining allegations of
Paragraph 30.
|
30. Admits that it has distributed certain versions of the
Linux operating system but denies the remaining allegations of
Paragraph 30.
|
31. SCO has developed and marketed software based on the Linux
operating system and provided related services that enable the
development, deployment and management of Linux-specialized servers and
internet access devices that simplify computing. According to SCO, it
was one of the first companies to tailor Linux open-source code from
various sources into sound discrete products.
|
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.
|
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. Specifically, SCO has distributed and/or redistributed a
number of Linux products, including SCO Linux server, SCO OpenLinux
Server, and SCO OpenLinux Workstation. SCO has also distributed SCO
Volution Manager, a web-based management solution system for managing
and maintaining established versions of Linux (as well as Unix
operating systems). Although SCO purported to suspend its Linux
distribution after the commencement of this action, SCO has continued
to make Linux source code available for download through its website.
|
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.
|
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. The viability of SCO's product offerings has depended in
large measure upon the efforts of the open-source community in
enhancing products and making them compatible for use across multiple
software and hardware platforms. Indeed, SCO incorporated certain code
licensed pursuant to the GPL into its proprietary Unix products. SCO
has also relied on independent developers in the open-source community,
such as Linus Torvalds, in order to release upgrades of SCO's
Linux-based products.
|
33. Denies the allegations of Paragraph 33.
|
33. Denies the allegations of Paragraph 33.
|
34. In addition to distributing Linux products, SCO
facilitated the adoption of Linux by providing education programs
designed to help its customers to develop, deploy and administer Linux
systems. Furthermore, SCO joined with other Linux vendors in
UnitedLinux, an initiative to streamline Linux development and
certification around a global, uniform distribution of Linux for
business.
|
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.
|
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. On May 7, 2001, Caldera Systems was merged into Caldera
International, Inc. (described below), which changed its name to The
SCO Group, Inc. in May 2003.
|
35. Admits the allegations of Paragraph 35.
|
35. Admits the allegations of Paragraph 35.
|
F. SCO's Open-Source Activities
|
36. Until it undertook the scheme described herein, SCO
supported the open-source community. According to SCO, it fully
embraced the open-source model.
|
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.
|
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. SCO Linux products encompass a range of software that uses
a number of different licensing schemes, including open-source licenses
and, in particular, the GPL. Components of SCO's Linux products (such
as OpenLinux), including the Linux kernel, have been developed and made
available for licensing under the GPL and similar licenses, which
generally allow any person or organization to copy, modify and
distribute the software, without royalty, in any form, including source
code.
|
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.
|
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. Due to the open-source nature of many of SCO's software
products and the licenses under which it has developed and distributed
them, SCO's collection of trademarks constitutes its most important
intellectual property.
|
38. Denies the allegations of Paragraph 38.
|
38. Denies the allegations of Paragraph 38.
|
39. At least until it undertook the scheme described herein,
SCO contributed tools and technology to the open-source community. For
instance, SCO incorporated open- source components in its product
offerings to the betterment of its products, and gave away CD-ROMs
containing its Linux operating system at trade shows and allowed it to
be freely downloaded over the internet to encourage interest.
|
39. Admits that it previously engaged in certain Linux-related
activities, but denies the remaining allegations of Paragraph 39 not
specifically admitted herein.
|
39. Admits that it previously engaged in certain Linux-related
activities, but denies the remaining allegations of Paragraph 39 not
specifically admitted herein.
|
40. In addition, SCO fostered, and regularly contributed to,
multiple open-source development projects in order to enhance the
capability of SCO's products and services. In fact, SCO's business
model depended upon incorporating contributions from the open-source
community into products that it open sourced.
|
40. Admits that it has contributed to certain open-source
development projects, but denies the remaining allegations of Paragraph
40 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. SCO also fostered and supported the development of
additional open-source and Linux enhancements through the Open Source
Development Lab and through participation as a key member of many
industry standard and open-source initiatives.
|
41. Denies the allegations of Paragraph 41.
|
41. Denies the allegations of Paragraph 41.
|
G. IBM and Linux
|
42. IBM is a participant in the open-source movement and has
made a substantial investment in Linux business efforts over the last 5
years. IBM participates in a broad range of Linux projects that are
important to the company and contribute to the open-source community.
|
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.
|
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. Today, IBM has many Linux-related offerings: mainframes
and servers that run Linux; memory solutions for Linux environments; a
broad range of software offerings; services that include deployment of
Linux-based e-business environments, migration of database applications
and data to Linux systems, support for Linux-based cluster computing,
server consolidation, and a 24-hour technical engineering support line.
IBM has created a Linux Center of Competency that offers Linux training
and support, applications testing, technical advice and a hands-on
environment in which to evaluate Linux and Linux-based applications.
|
43. Admits the allegations of Paragraph 43.
|
43. Admits the allegations of Paragraph 43.
|
44. Like thousands of other developers, IBM has properly
contributed source code to Linux under the GPL. In fact, SCO has
included IBM contributions to Linux in Linux products that SCO has
distributed under the GPL. Like all recipients of SCO's Linux
distributions, IBM is entitled to the protections of the GPL with
respect to the IBM contributions, as well as any other contributions,
included in SCO's Linux distributions, of which IBM is a recipient.
|
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.
|
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.
|
H. Failure of SCO's Business
|
45. Although it completed an initial public offering, SCO,
unlike IBM, has failed to establish a successful business around Linux.
SCO's Linux business has never generated a profit. In fact, the company
as a whole did not experience a profitable quarter until after it
abandoned its Linux business and undertook its present scheme to
extract windfall profits from Unix technology that SCO played no role
in developing.
|
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.
|
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. In an attempt to revive its faltering Linux business, SCO
acquired rights to the Unix operating system originally developed by
Bell Laboratories and undertook the unification of the Unix and Linux
operating systems. On May 7, 2001, Caldera Systems was merged into
Caldera International, Inc., a holding company formed to acquire the
Server Software and Professional Services divisions of Original SCO,
including Original SCO's rights to the Unix assets it acquired from
Novell and the Unix variant developed by Original SCO.
|
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.
|
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. Following its acquisition of Original SCO's Unix assets,
SCO described its business plan as being to integrate its Linux-based
products and services with its Unix-based products and services as a
way of encouraging businesses to adopt the open-source, Linux-based
operating systems.
|
47. Denies the allegations of Paragraph 47.
|
47. Denies the allegations of Paragraph 47.
|
48. In pursuit of this strategy, SCO designed SCO Linux to
permit existing Unix-based users to migrate to Linux. In addition, SCO
marketed and sold a number of Unix products, including UnixWare, SCO
OpenServer, Reliant HA, and Merge, and Caldera's Global Professional
Services assisted customers in developing and deploying unified Unix
and Linux solutions through consulting and custom engineering services.
|
48. Denies the allegations of Paragraph 48.
|
48. Denies the allegations of Paragraph 48.
|
49. Like SCO's original Linux business, however, this
enterprise failed. SCO has not been able to operate a successful,
legitimate business concerning Linux and/or Unix. With apparently no
other prospects, SCO shifted its business model yet again -- this time
to litigation and threats of litigation, as is described below.
|
49. Denies the allegations of Paragraph 49.
|
49. Denies the allegations of Paragraph 49.
|
I. SCO's Scheme
|
50. SCO devised a scheme to profit from the Unix assets that
it acquired from Original SCO, though those assets were in no way
developed by SCO. Although most, if not all, of the AT&T Unix
technology that SCO purports to own is generally known, available
without restriction to the general public or readily ascertainable by
proper means, SCO undertook to create fear, uncertainty and doubt in
the marketplace in regard to SCO's rights in and to that technology.
|
50. Denies the allegations of Paragraph 50.
|
50. Denies the allegations of Paragraph 50.
|
51. Recognizing that there is little value in its Unix rights,
SCO did not limit its scheme to that technology. Rather, SCO devised
and executed a plan to create the false perception that SCO holds
rights to Unix that permit it to control not only all Unix technology,
but also Linux -- including those aspects generated through the
independent hard work and creativity of thousands of other developers
and long distributed by SCO itself under the GPL.
|
51. Denies the allegations of Paragraph 51.
|
51. Denies the allegations of Paragraph 51.
|
52. SCO undertook to carry out its scheme by, among other
things, (a) bringing baseless legal claims against IBM and threatening
to sue other companies and individuals, (b) conducting a far-reaching
publicity campaign to create the false and/or unsubstantiated
impression that SCO has rights to Unix and Linux that it does not have
and that IBM and others have violated SCO's rights and (c) otherwise
seeking to condition the market to believe that SCO has rights to Unix
and Linux that it does not have and cannot properly enforce.
|
52. Denies the allegations of Paragraph 52.
|
52. Denies the allegations of Paragraph 52.
|
J. SCO's Lawsuit and Threats
|
53. On March 7, 2003, without any prior notice or warning that
would have allowed IBM to understand SCO's claims and respond to them,
SCO sued IBM alleging a host of meritless claims. In particular, SCO
alleges that IBM has breached its contractual obligations to SCO by,
among other things, incorporating and inducing others to incorporate
SCO's intellectual property into Linux. In addition, SCO alleges that
IBM has competed unfairly, interfered with SCO's contracts with others,
and misappropriated SCO's trade secrets.
|
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.
|
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. By its complaint, and the amended complaint it submitted
on July 22, 2003, SCO asserts legal theories that are frivolous, such
as that SCO has ownership rights with respect to all of the code in
AIX. SCO seeks relief to which it is plainly not entitled, such as a
permanent injunction terminating IBM's ability to possess and use the
software products it licensed from AT&T Technologies, Inc.,
notwithstanding the fact that those rights are expressly "irrevocable"
and "perpetual".
|
54. Denies the allegations of Paragraph 54.
|
54. Denies the allegations of Paragraph 54.
|
55. In addition to instituting litigation against IBM, SCO
sent letters to 1500 of the world's largest corporations threatening
litigation. In its letters, an example of which is attached hereto as
Exhibit I, SCO states, "We believe that Linux infringes on our Unix
intellectual property and other rights". SCO further states, "We intend
to aggressively protect and enforce these rights" against not only the
companies involved with "the Linux development process" but also "the
end user" companies using any Linux technology. SCO has made clear that
it intends to bring legal action relating to Linux. For example, in a
press conference on July 21, 2003, SCO stated that taking out a license
with SCO was the "alternative to legal enforcement against Linux
end-users".
|
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.
|
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.
|
K. SCO's Campaign of False Publicity
|
56. Following the commencement of its lawsuit against IBM and
its barrage of letters threatening suit against others, SCO continued
its campaign of falsehoods by further misrepresenting to the market the
interplay of Unix, AIX, Dynix and Linux and SCO's and IBM's rights to
these products.
|
56. Denies the allegations of Paragraph 56.
|
56. Denies the allegations of Paragraph 56.
|
57. SCO has repeatedly made false public statements to the
effect that it has the right and authority to revoke, and has
effectively revoked, IBM's right to use AIX, IBM's version of Unix. For
example, on May 12, 2003, Chris Sontag, a Senior Vice President of SCO,
stated publicly, SCO has "the right to revoke the AIX license", and on
June 16, 2003, SCO announced publicly that it had "terminated IBM's
right to use or distribute any software product that is a modification
of or based on Unix System V source code". Indeed, in an interview
given by SCO CEO Darl McBride to Peter Williams of vnunet.com on June
25, 2003, SCO falsely represented that its contractual rights to "pull"
IBM's contract are "bullet-proof". SCO has made similarly false
statements relating to Dynix.
|
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's
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.
|
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's
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. By way of further example, SCO has falsely stated that it
has the right to control the use by IBM of all of Unix and AIX
technology and to control the use by all persons and entities of Linux
technology, which SCO contends is an illegal derivative of Unix. On
June 16, 2003, SCO announced in a press release that "AIX is an
unauthorized derivative of the Unix System operating system source code
and its users are, as of this date, using AIX without a valid basis to
do so". A SCO letter to Linux users, dated May 12, 2003, states, "We
believe that Linux is, in material part, an unauthorized derivative of
Unix. . . . We believe that Linux infringes on our Unix intellectual
property and other rights."
|
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.
|
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. SCO's campaign has not been limited to press releases and
public interviews. SCO has also propagated falsehoods about its and
IBM's rights in non-public meetings with analysts. SCO has solicited
and participated in these meetings to misuse analysts to achieve wider
dissemination of SCO's misleading message about Unix, AIX and Linux and
to damage IBM and the open-source movement. In a luncheon hosted by
Deutsche Bank analyst Brian Skiba, on or about July 22, 2003, for
example, SCO falsely stated that IBM transferred the NUMA code from
Sequent to Linux without any legal basis to do so and that IBM's
actions were giving rise to about $1 billion in damages per week. In an
interview in June 2003 with Client Server News, SCO misrepresented to
analysts that IBM has improperly released "truckloads" of code into the
open-source community.
|
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.
|
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.
|
L. Novell's Exercise of Rights
|
60. On June 9, 2003, in response to SCO's actions, and
pursuant to its obligations under Amendment X, Novell stated its belief
that SCO has no right to terminate IBM's Unix license which is
perpetual and irrevocable, and Novell exercised its retained rights to
Unix to put a stop to SCO's misconduct. Under Section 4.16(b) of the
Asset Purchase Agreement between Novell and Original SCO dated
September 19, 1995 ("APA"), attached hereto as Exhibit J, Novell
directed SCO to "waive any purported right SCO may claim to terminate
IBM's [Unix] licenses enumerated in Amendment X or to revoke any rights
thereunder, including any purported rights to terminate asserted in
SCO's letter of March 6, 2003 to IBM". A copy of Novell's June 9, 2003
letter is attached hereto as Exhibit K.
|
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.
|
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. When SCO failed to take the actions directed by Novell, on
June 12, 2003, Novell exercised its rights under Section 4.16(b) of the
APA to waive and revoke, in SCO's stead, any purported right SCO
claimed to terminate IBM's licenses. A copy of Novell's June 12, 2003
letter is attached hereto as Exhibit L.
|
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.
|
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. Notwithstanding the fact that IBM's rights to Unix are
expressly "irrevocable" and "perpetual" under Amendment X and the fact
that Novell has exercised its right to waive, in any event, any
contractual rights SCO claims IBM violated, SCO nevertheless purported
to terminate IBM's licenses on June 13, 2003. Moreover, even assuming
(contrary to fact) that IBM's rights were terminable, at no time prior
to SCO's purported termination did SCO comply with its obligations
under the AT&T Agreements to identify the specific acts or
omissions that SCO alleges constitute IBM's breach, despite IBM's
demands that SCO do so.
|
62. Denies the allegations of Paragraph 62.
|
62. Denies the allegations of Paragraph 62.
|
63. Rather, SCO has continued to misrepresent that it can, or
will, or has in fact revoked IBM's right to use Unix, without
disclosing that IBM's rights to Unix are not terminable or that Novell
has exercised its right to waive any contractual rights SCO claims IBM
violated. In an interview with Information Week on or about June 12,
2003, for instance, SCO falsely stated that it has the right to revoke
IBM's license and order the destruction of every copy of AIX.
|
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.
|
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.
|
M. SCO's Refusal to Specify Its Claims
|
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".
|
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.
|
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. SCO has obfuscated its claims and has hidden its supposed
evidence because the evidence does not demonstrate the breaches and
violations that SCO has alleged. Moreover, key developers and influence
leaders in the open-source community, including leaders of Linux kernel
development, have stated publicly that they are prepared immediately to
remove any allegedly offending material from the Linux kernel. Rather
than permit remediation or mitigation of its alleged injuries (which
are non-existent), SCO has declined to reveal the particulars of the
alleged violations in order to artificially and improperly inflate the
price of its stock.
|
65. Denies the allegations of Paragraph 65.
|
65. Denies the allegations of Paragraph 65.
|
66. While refusing to supply IBM with meaningful specifics
regarding the alleged breaches, SCO has shown its purported evidence to
analysts, journalists and others who are interested in seeing it. For
example, at a forum held in Las Vegas on August 17-19, 2003, SCO made a
false and misleading presentation concerning its claims against IBM, in
which SCO purported to disclose examples of its evidence of alleged
misconduct by IBM.
|
66. Denies the allegations of Paragraph 66.
|
66. Denies the allegations of Paragraph 66.
|
N. SCO's Disparagement of AIX and Linux
|
67. In addition to purporting to terminate IBM's rights to use
AIX, SCO has disparaged AIX as "unauthorized". In a press release dated
June 16, 2003, SCO's counsel stated that "SCO has the right to
terminate IBM's right to use and distribute AIX. Today AIX is an
unauthorized derivative of the Unix operating system source code and
its users are, as of this date, using AIX without a valid license to do
so". In the same press release, Darl McBride, SCO's Chief Executive
Officer, stated that "IBM no longer has the authority to sell or
distribute AIX and customers no longer have the right to use AIX
software". SCO has made similarly false and disparaging statements
relating to Dynix.
|
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.
|
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. Here again, SCO's false and misleading statements have not
been limited to AIX. In recognition of the fact that its claims against
IBM are baseless, and in flat contradiction of the allegation of its
original complaint (i.e., that this case is not about the relative
merits of proprietary versus open-source software), SCO has now falsely
stated, in effect, it owns and is entitled to collect royalties
regarding Linux. For example, on July 21, 2003, McBride stated, on
behalf of SCO, Linux infringes SCO's rights and, as "a viable
alternative to legal enforcement" SCO is prepared to offer a license to
SCO's Unix products that would, SCO says, permit lawful use of Linux.
|
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.
|
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. SCO has misrepresented that IBM has infringed SCO's
copyrights, and has threatened to sue IBM for copyright infringement,
with respect to Linux. For example, at its 2003 SCO Forum, SCO
represented that Linux is an unauthorized derivative of Unix, that IBM
has infringed its rights in Linux and that SCO is entitled to damages
and injunctive relief against IBM.
|
69. Denies the allegations of Paragraph 69.
|
69. Denies the allegations of Paragraph 69.
|
70. SCO's false and misleading statements have also damaged
the reputation and prospects of the entire open-source community. SCO's
misconduct undermines the substantial public interest in the provision
of software that is reliable, inexpensive, and accessible by the
general public.
|
70. Denies the allegations of Paragraph 70.
|
70. Denies the allegations of Paragraph 70.
|
O. SCO's Copyright Infringement
|
71. As stated, IBM has made contributions of source code to
Linux under the GPL, some of which are identified below. IBM owns valid
copyrights in these contributions, as illustrated below, and has
identified them with appropriate copyright notices.
|
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.
|
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. Notwithstanding SCO's allegations that IBM and others have
breached SCO's intellectual property rights, SCO has infringed and is
infringing IBM's copyrights in its Linux contributions.
|
72. Admits that IBM and others have breached SCO's
intellectual property rights, but denies the remaining allegations of
Paragraph 72.
|
72. Admits that IBM and others have breached SCO's
intellectual property rights, but denies the remaining allegations of
Paragraph 72.
|
73. IBM granted SCO and others a non-exclusive license to
these copyrighted contributions on the terms set out in the GPL and
only on the terms set out in the GPL. SCO breached its obligations
under the GPL, however, and therefore its rights under the GPL
terminated.
|
73. Denies the allegations of Paragraph 73 and denies the
enforceability or applicability of the GPL.
|
73. Denies the allegations of Paragraph 73 and denies the
enforceability or applicability of the GPL.
|
74. SCO has infringed and is infringing IBM's copyrights by
copying, modifying, sublicensing and/or distributing Linux products
after its rights under the GPL terminated. SCO has taken copyrighted
source code made available by IBM under the GPL, included that code in
SCO's Linux products, and copied, modified, sublicensed and/or
distributed those products other than as permitted under the GPL.
|
74. Denies the allegations of Paragraph 74.
|
74. Denies the allegations of Paragraph 74.
|
P. SCO's Patent Infringement
|
75. In addition to infringing IBM's copyrights, SCO is engaged
in pervasive acts of infringement of no fewer than four of IBM's
patents, by making, using, selling and/or offering to sell a variety of
products, including but not limited to: "UnixWare", a Unix operating
system for Intel and AMD processor-based computer systems; "Open
Server", an operating system platform; "SCO Manager", a web-based
remote systems management solution for management of Linux and SCO Unix
systems; and "Reliant HA", "clustering" software that permits
interconnection of multiple servers to achieve redundancy.
|
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.
|
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.
|
Q. Effects of SCO's Misconduct and Its State of
Mind
|
76. As a result of the misconduct described above, SCO has not
only artificially inflated its stock price and been unjustly enriched,
but also it has injured IBM and, more broadly, the open-source
movement. SCO's misconduct has resulted in damage to IBM's business,
including its reputation and goodwill, has interfered with its
prospective economic relations and has required it unduly to divert
resources to respond to SCO's baseless allegations. SCO has injured the
open-source movement, of which it was once a part, by fostering fear,
uncertainty and doubt about its and others' rights to use Unix, AIX,
Dynix and Linux.
|
76. Denies the allegations of Paragraph 76.
|
76. Denies the allegations of Paragraph 76.
|
77. SCO's misconduct is especially egregious because SCO has
implemented its scheme with actual knowledge or in reckless disregard
of the fact that it does not have the rights that it seeks to assert
(e.g., the right to terminate IBM's irrevocable and perpetual Unix
rights). Moreover, SCO committed not to assert certain proprietary
rights over or to restrict further distribution of any program
distributed by SCO under the terms of the GPL.
|
77. Denies the allegations of Paragraph 77.
|
77. Denies the allegations of Paragraph 77.
|
FIRST COUNTERCLAIM
|
Breach of Contract
|
78. IBM repeats and realleges the averments in paragraphs 1
through 77, with the same force and effect as though they were set
forth fully herein.
|
78. Repeats and realleges Paragraphs 1-77, above.
|
78. Repeats and realleges Paragraphs 1-77, above.
|
79. SCO is licensor and IBM licensee of the right to use and
sublicense Unix software, as specified in the AT&T Agreements,
Amendment X and other similar agreements, all of which are valid
contracts.
|
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.
|
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. IBM has performed all its duties and obligations under the
AT&T Agreements, Amendment X and other similar agreements.
|
80. Denies the allegations of Paragraph 80.
|
80. Denies the allegations of Paragraph 80.
|
81. SCO has breached its express duties and obligations under
the AT&T Agreements, Amendment X and other similar agreements by,
among other things, purporting to terminate IBM's irrevocable and
perpetual Unix rights and/or refusing to provide IBM adequate notice
and opportunity to cure its alleged misconduct.
|
81. Denies the allegations of Paragraph 81.
|
81. Denies the allegations of Paragraph 81.
|
82. SCO has also breached the implied covenant of good faith
and fair dealing under the AT&T Agreements, Amendment X and other
similar agreements by affirmatively seeking to deprive IBM of the
benefits to which it is entitled under those contracts through numerous
acts of bad faith, including, among other things, making false and
misleading statements to the public about SCO's and IBM's rights under
the same.
|
82. Denies the allegations of Paragraph 82.
|
82. Denies the allegations of Paragraph 82.
|
83. IBM has suffered damages from SCO's breaches of contract
in an amount to be determined at trial.
|
83. Denies the allegations of Paragraph 83.
|
83. Denies the allegations of Paragraph 83.
|
SECOND COUNTERCLAIM
|
Lanham Act Violation
|
84. IBM repeats and realleges the averments in paragraphs 1
through 83, with the same force and effect as though they were set
forth fully herein.
|
84. Repeats and realleges Paragraphs 1-83, above.
|
84. Repeats and realleges Paragraphs 1-83, above.
|
85. IBM sells and distributes AIX and Linux-related products
and services in interstate commerce, and IBM sold and distributed Dynix
in interstate commerce.
|
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 rights in AIX and Dynix have been lawfully and properly
terminated, and denies the remaining the allegations of Paragraph 85
not specifically admitted herein.
|
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. SCO has made material false representations regarding AIX,
Dynix and IBM's Linux-related products and services, which affect a
customer's decision whether to purchase these products and services.
Specifically, SCO has publicly misrepresented the legitimacy of these
products and services by falsely representing that IBM no longer has
the right, authority and license to use, produce and distribute these
products and by misrepresenting SCO's own rights in and to Unix, AIX,
Dynix and Linux.
|
86. Denies the allegations of Paragraph 86.
|
86. Denies the allegations of Paragraph 86.
|
87. SCO has published its false statements in a series of
widely-distributed press releases, press interviews and other streams
of commerce, as part of its bad faith campaign to discredit IBM's
products and services in the marketplace, to increase the perceived
value of SCO's limited rights to Unix and to promote SCO's own Unix
operating systems, UnixWare and Open Server.
|
87. Denies the allegations of Paragraph 87.
|
87. Denies the allegations of Paragraph 87.
|
88. These statements are likely to cause confusion and mistake
and have in fact caused confusion and mistake as to the characteristics
of IBM's goods, products and/or services.
|
88. Denies the allegations of Paragraph 88.
|
88. Denies the allegations of Paragraph 88.
|
89. As a direct result of SCO's false representations, all of
which are in violation of 15 U.S.C. § 1125, IBM has suffered
damages in an amount to be determined at trial. IBM is also entitled to
damages and attorneys' fees pursuant to 15 U.S.C. § 1117(a).
|
89. Denies the allegations of Paragraph 89.
|
89. Denies the allegations of Paragraph 89.
|
THIRD COUNTERCLAIM
|
Unfair Competition
|
90. IBM repeats and realleges the averments in paragraphs 1
through 89, with the same force and effect as though they were set
forth fully herein.
|
90. Repeats and realleges Paragraphs 1-89, above.
|
90. Repeats and realleges Paragraphs 1-89, above.
|
91. IBM has invested over two decades and hundreds of millions
of dollars in the creation and development of AIX. Through IBM's
efforts, innovation and hard work, AIX has become one of the leading
Unix operating systems, and IBM's products and services are sold and
used throughout the United States. Similarly, IBM expended substantial
resources to acquire Dynix and has invested substantial time and effort
in developing its Linux-related products and services.
|
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 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.
|
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. SCO has intentionally, knowingly, wrongfully and in bad
faith engaged in a public pattern of conduct aimed at depriving IBM of
the value of its AIX, Dynix and Linux-related products and services and
misappropriating the same for the benefit of SCO's Unix licensing
business as well as SCO's competing Unix operating systems. SCO's
misconduct is likely to result in confusion in the marketplace and has
in fact resulted in confusion concerning AIX, Dynix and Linux.
|
92. Denies the allegations of Paragraph 92.
|
92. Denies the allegations of Paragraph 92.
|
93. SCO has engaged in unfair competition by falsely claiming
ownership of IBM's intellectual property as well as the intellectual
property created by the open-source community; publishing false and
disparaging statements about AIX and Dynix; making bad faith
misrepresentations concerning IBM's rights to Unix, MX and Dynix;
misusing and misrepresenting SCO's limited rights in Unix to injure
IBM; and falsely accusing IBM of theft of SCO's intellectual property.
|
93. Denies the allegations of Paragraph 93.
|
93. Denies the allegations of Paragraph 93.
|
94. As a direct result of SCO's unfair competition, IBM has
and will continue to suffer damage to its reputation, goodwill, and
business in an amount to be determined at trial. Because SCO's acts of
unfair competition were and are willful and malicious, IBM is also
entitled to punitive damages.
|
94. Denies the allegations of Paragraph 94.
|
94. Denies the allegations of Paragraph 94.
|
FOURTH COUNTERCLAIM
|
Intentional Interference with Prospective
Economic Relations
|
95. IBM repeats and realleges the averments in paragraphs 1
through 94, with the same force and effect as though they were set
forth fully herein.
|
95. Repeats and realleges Paragraphs 1-94, above.
|
95. Repeats and realleges Paragraphs 1-94, above.
|
96. IBM is actively engaged in the development, manufacture
and sale of AIX and products and services relating to Linux, and IBM
has sold and distributed Dynix. IBM has prospective business
relationships with numerous companies and individuals to whom IBM has
sold and/or licensed these products and services and/or to whom IBM
seeks to sell and/or license these products and services. IBM also has
prospective business relationships with business and individual members
of the Linux and open-source software development, distribution,
service and computing communities with whom IBM seeks to do business in
various capacities, including through research and development efforts.
|
96. Admits the allegations of Paragraph 96.
|
96. Admits the allegations of Paragraph 96.
|
97. SCO is fully aware of these prospective business
relationships and the importance of the relationships to IBM's
continued commercial success.
|
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.
|
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. SCO has intentionally interfered with these relationships
through improper means, including by making false and misleading
statements to IBM's prospective customers that IBM no longer has the
right, authority and license to use, produce and distribute AIX, Dynix
and Linux-related products. SCO has also misrepresented its own rights
relating to these operating systems. The purpose of SCO's unlawful
conduct is to injure IBM by driving prospective customers of AIX, Dynix
and IBM's Linux-related products and services away from purchasing and
licensing the same from IBM.
|
98. Denies the allegations of Paragraph 98.
|
98. Denies the allegations of Paragraph 98.
|
99. Furthermore, SCO has intentionally interfered with IBM's
valuable economic relationships with business and individual members of
the Linux and open-source software communities by falsely and publicly
accusing IBM of inserting "truckloads" of SCO's intellectual property
into the Linux kernel and related software. Again, the purpose of SCO's
unlawful conduct is to injure IBM by driving away these businesses and
individuals from future open-source collaborations with IBM.
|
99. Denies the allegations of Paragraph 99.
|
99. Denies the allegations of Paragraph 99.
|
100. IBM has suffered damages from SCO's tortious interference
with its economic relations in an amount to be determined at trial.
Because SCO's tortious interference with IBM's prospective economic
relations was and is willful and malicious, IBM is entitled to punitive
damages.
|
100. Denies the allegations of Paragraph 100.
|
100. Denies the allegations of Paragraph 100.
|
FIFTH COUNTERCLAIM
|
Unfair and Deceptive Trade Practices
|
101. IBM repeats and realleges the averments in paragraphs 1
through 100, with the same force and effect as though they were set
forth fully herein.
|
101. Repeats and realleges Paragraphs 1-100, above.
|
101. Repeats and realleges Paragraphs 1-100, above.
|
102. SCO has engaged in unfair and deceptive trade practices
by, among other things, falsely representing that IBM no longer has the
right, authority and/or license to use, produce and/or distribute AIX,
Dynix and Linux-related products; misrepresenting SCO's and IBM's
rights relating to these operating systems; and publishing false and
disparaging statements about AIX, Dynix and Linux.
|
102. Denies the allegations of Paragraph 102.
|
102. Denies the allegations of Paragraph 102.
|
103. SCO's false statements and misrepresentations were made
in connection with SCO's solicitation of business, and in order to
induce IBM and others to purchase products and licenses from SCO. SCO's
statements and misrepresentations are likely to cause confusion and
misunderstanding as to the qualities, benefits and characteristics of
AIX, Dynix and Linux. SCO has misrepresented the qualities, benefits
and/or characteristics of these products.
|
103. Denies the allegations of Paragraph 103.
|
103. Denies the allegations of Paragraph 103.
|
104. SCO's misconduct was undertaken for the purpose of
deceiving the marketplace and defaming IBM and has deceived and misled
the public and IBM's customers; disparaged the goods, services, and
business of IBM; and otherwise injured IBM's business in violation of
N.Y. Gen. Bus. Law § 349 and the laws of other states.
|
104. Denies the allegations of Paragraph 104.
|
104. Denies the allegations of Paragraph 104.
|
105. IBM has provided SCO with notice of its false and
misleading statements, and has given SCO an opportunity to correct
those statements. SCO has refused and has instead opted to make more
false and misleading statements.
|
105. Denies the allegations of Paragraph 105.
|
105. Denies the allegations of Paragraph 105.
|
106. As a direct result of SCO's unfair and deceptive trade
practices, the public at large, including AIX, Dynix and Linux users,
has been harmed by SCO's campaign to foster fear, uncertainty and doubt
about AIX, Dynix and Linux. Moreover, IBM has suffered damages in an
amount to be determined at trial. Because SCO's acts of unfair and
deceptive trade practices were and are willful, knowing and malicious,
IBM is also entitled to treble damages and/or fees pursuant to N.Y.
Gen. Bus. Law § 349(h).
|
106. Denies the allegations of Paragraph 106.
|
106. Denies the allegations of Paragraph 106.
|
SIXTH COUNTERCLAIM
|
Breach of the GNU General Public License
|
107. IBM repeats and realleges the averments in paragraphs 1
through 106, with the same force and effect as though they were set
forth fully herein.
|
107. Repeats and realleges Paragraphs 1-106, above.
|
107. Repeats and realleges Paragraphs 1-106, above.
|
108. IBM has made contributions of source code to Linux under
the GPL on the condition that users and distributors of such code,
including SCO, abide by the terms of the GPL in modifying and
distributing Linux products, including, for example, the requirement
that they distribute all versions of software licensed under the GPL
(original or derivative) under the GPL and only the GPL.
|
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.
|
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. SCO has taken source code made available by IBM under the
GPL, included that code in SCO's Linux products, and distributed
significant portions of those products under the GPL. By so doing, SCO
accepted the terms of the GPL (pursuant to GPL § 5), both with
respect to source code made available by IBM under the GPL and with
respect to SCO's own Linux distributions.
|
109. Denies the allegations of Paragraph 109.
|
109. Denies the allegations of Paragraph 109.
|
110. SCO has breached the GPL by, among other things, copying,
modifying, sublicensing or distributing programs licensed under the
GPL, including IBM contributions, on terms inconsistent with those set
out in the GPL; and seeking to impose additional restrictions on the
recipients of programs licensed under the GPL, including IBM
contributions, distributed by SCO.
|
110. Denies the allegations of Paragraph 110.
|
110. Denies the allegations of Paragraph 110.
|
111. Based upon its breaches of the GPL and the misconduct
described herein, SCO's rights under the GPL, including but not limited
to the right to distribute the copyrighted works of others included in
Linux under the GPL, terminated (pursuant to § 4 of the GPL). The
GPL prohibits SCO from, among other things, asserting certain
proprietary rights over, or attempting to restrict further distribution
of any program distributed by SCO under the terms of the GPL, except as
permitted by the GPL.
|
111. Denies the allegations of Paragraph 111.
|
111. Denies the allegations of Paragraph 111.
|
112. As a result of SCO's breaches of the GPL, countless
developers and users of Linux, including IBM, have suffered and will
continue to suffer damages and other irreparable injury. IBM is
entitled to a declaration that SCO's rights under the GPL terminated,
an injunction prohibiting SCO from its continuing and threatened
breaches of the GPL and an award of damages in an amount to be
determined at trial.
|
112. Denies the allegations of Paragraph 112.
|
112. Denies the allegations of Paragraph 112.
|
SEVENTH COUNTERCLAIM
|
Promissory Estoppel
|
113. IBM repeats and realleges the averments in paragraphs 1
through 112, with the same force and effect as though they were set
forth fully herein.
|
113. Repeats and realleges Paragraphs 1-112, above.
|
113. Repeats and realleges Paragraphs 1-112, above.
|
114. SCO made a clear and unambiguous promise to IBM and
others that SCO would copy, modify or distribute programs distributed
by IBM and others under the GPL only on the terms set out in the GPL;
and would not assert rights to programs distributed by SCO under the
GPL except on the terms set out in the GPL.
|
114. Denies the allegations of Paragraph 114.
|
114. Denies the allegations of Paragraph 114.
|
115. IBM and others reasonably, prudently and foreseeably
relied upon these promises, such as by making contributions under the
GPL and committing resources to open- source projects.
|
115. Denies the allegations of Paragraph 115.
|
115. Denies the allegations of Paragraph 115.
|
116. SCO knew or should have known that IBM and others would
rely and in fact relied upon SCO's promises and knew or should have
known that those promises would induce and in fact induced action or
forbearance on the part of IBM and others.
|
116. Denies the allegations of Paragraph 116.
|
116. Denies the allegations of Paragraph 116.
|
117. SCO was and is aware of all material facts relating to
IBM's reliance on SCO's promises including but not limited to IBM's
contributions under the GPL, SCO's distributions under the GPL and the
intent, meaning and import of the GPL.
|
117. Denies the allegations of Paragraph 117.
|
117. Denies the allegations of Paragraph 117.
|
118. As a result of its reliance upon SCO's promises, IBM has
sustained injuries and is entitled to an award of damages in an amount
to be determined at trial. In addition to an award of damages, IBM is
entitled to declaratory and injunctive relief, including but not
limited to a declaration that SCO is not entitled to assert proprietary
rights with respect to products distributed by SCO under the GPL except
upon the terms set out in the GPL.
|
118. Denies the allegations of Paragraph 118.
|
118. Denies the allegations of Paragraph 118.
|
EIGHTH COUNTERCLAIM
|
Copyright Infringement
|
119. IBM repeats and realleges the averments in paragraphs 1
through 118, with the same force and effect as though they were set
forth fully herein.
|
119. Repeats and realleges Paragraphs 1-118, above.
|
119. Repeats and realleges Paragraphs 1-118, above.
|
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.
|
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.
|
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. 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:
Registration No.
|
Date of Registration |
Title of Work |
TX 5-757-696 |
August 15, 2003 |
IBM Enterprise Volume
Management System |
TX 5-757-697 |
August 15, 2003 |
IBM Enterprise Class Event
Logging |
TX 5-757-698 |
August 15, 2003 |
IBM Dynamic Probes |
TX 5-757-699
|
August 15, 2003 |
IBM Linux Support Power
PC64 |
TX 5-757-700 |
August 15, 2003 |
IBM Omni Print Driver |
TX 5-757-701
|
August 15, 2003
|
IBM Journaled File System
|
TX 5-757-702 |
August 15, 2003 |
IBM Next Generation Posix
Threading |
|
121. Is without information sufficient to admit or deny the
allegations of Paragraph 121, and therefore denies the same.
|
121. Is without information sufficient to admit or deny the
allegations of Paragraph 121, and therefore denies the same.
|
122. IBM has placed or caused to be placed a copyright notice
on these contributions of source code to Linux under the GPL and has
otherwise complied with the copyright laws of the United States in this
respect. IBM does not permit the unauthorized copying of its Linux
contributions.
|
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.
|
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. IBM granted SCO and others a non-exclusive license to the
above-listed copyrighted contributions to Linux on the terms set out in
the GPL and only on the terms set out in the GPL. IBM made these
contributions on the condition that users and distributors of its
copyrighted code, including SCO, abide by the terms of the GPL in
copying, modifying and distributing Linux products.
|
123. Denies the allegations of Paragraph 123.
|
123. Denies the allegations of Paragraph 123.
|
124. SCO has infringed and is infringing IBM's copyrights by
copying, modifying, sublicensing and/or distributing Linux products
except as expressly provided under the GPL. SCO has taken copyrighted
source code made available by IBM under the GPL, included that code in
SCO's Linux products, and copied, modified, sublicensed and/or
distributed those products other than as permitted under the GPL. SCO
has no right -- and has never had any right - to copy, modify,
sublicense and/or distribute the IBM copyrighted code except pursuant
to the GPL.
|
124. Denies the allegations of Paragraph 124.
|
124. Denies the allegations of Paragraph 124.
|
125. As a result of SCO's infringement, IBM has been damaged
and is entitled to an award of actual and/or statutory damages pursuant
to 17 U.S.C. § 504 in an amount to be proven at trial. Because
SCO's infringement has been willful, deliberate and in utter disregard
and derogation of IBM's rights, IBM is entitled to enhanced statutory
damages pursuant to 17 U.S.C. § 504. IBM is entitled to costs and
attorney's fees pursuant to 17 U.S.C. § 505.
|
125. Denies the allegations of Paragraph 125.
|
125. Denies the allegations of Paragraph 125.
|
126. In addition, IBM is entitled to injunctive relief
pursuant to 17 U.S.C. § 502, as SCO will continue to infringe
IBM's copyrights in violation of the copyright laws of the United
States unless restrained by this Court. IBM is also entitled to an
appropriate order pursuant to 17 U.S.C. § 503.
|
126. Denies the allegations of Paragraph 126.
|
126. Denies the allegations of Paragraph 126.
|
NINTH COUNTERCLAIM
|
Patent Infringement
|
127. IBM repeats and realleges the averments in paragraphs 1
through 126, with the same force and effect as though they were set
forth fully herein.
|
127. Repeats and realleges Paragraphs 1-126, above.
|
127. Repeats and realleges Paragraphs 1-126, above.
|
128. IBM is the lawful owner, by assignment, of the entire
right, title and interest in United States Patent No. 4,814,746 ("the
‘746 Patent"), duly and legally issued on March 21, 1989 to Miller et
al., entitled "Data Compression Method". A copy of the ‘746 Patent is
attached hereto as Exhibit V.
|
128. Is without information sufficient to admit or deny the
allegations of Paragraph 128, and therefore denies the same.
|
128. Is without information sufficient to admit or deny the
allegations of Paragraph 128, and therefore denies the same.
|
129. Upon information and belief, SCO has been and is
infringing the ‘746 Patent within this judicial district and elsewhere
by making, using, selling and/or offering to sell products, including
UnixWare and Open Server, that practice one or more claims of the ‘746
Patent and therefore infringe that patent to the extent such infringing
acts have occurred or occur during the effective period of that patent.
|
129. Denies the allegations of Paragraph 129.
|
129. Denies the allegations of Paragraph 129.
|
130. Upon information and belief, SCO will continue to
infringe the ‘746 Patent unless enjoined by this Court.
|
130. Denies the allegations of Paragraph 130.
|
130. Denies the allegations of Paragraph 130.
|
131. IBM has been damaged by SCO's infringement of the ‘746
Patent, has been irreparably harmed by that infringement, and will
suffer additional damages and irrevocable harm unless this Court
enjoins SCO from further infringement.
|
131. Denies the allegations of Paragraph 131.
|
131. Denies the allegations of Paragraph 131.
|
132. Continued manufacture, use, sale or offer for sale of the
infringing products, including UnixWare and Open Server, or evidence
that SCO was aware of the ‘746 Patent, shall render SCO liable for
willful infringement, as well as active inducement of infringement of
the ‘746 Patent, making this an exceptional case and justifying the
assessment of treble damages pursuant to 35 U.S.C. § 284, and the
award of attorneys' fees pursuant to 35 U.S.C. § 285.
|
132. Denies the allegations of Paragraph 132.
|
132. Denies the allegations of Paragraph 132.
|
TENTH COUNTERCLAIM
|
Patent Infringement
|
133. IBM repeats and realleges the averments in paragraphs 1
through 132, with the same force and effect as though they were set
forth fully herein.
|
133. Repeats and realleges Paragraphs 1-132, above.
|
133. Repeats and realleges Paragraphs 1-132, above.
|
134. IBM is the lawful owner, by assignment, of the entire
right, title and interest in United States Patent No. 4,821,211 ("the
‘211 Patent"), duly and legally issued on April 11, 1989 to Torres,
entitled "Method of Navigating Among Program Menus Using a Graphical
Menu Tree". A copy of the ‘211 Patent is attached hereto as Exhibit W.
|
134. Is without information sufficient to admit or deny the
allegations of Paragraph 134, and therefore denies the same.
|
134. Is without information sufficient to admit or deny the
allegations of Paragraph 134, and therefore denies the same.
|
135. Upon information and belief, SCO has been and is
infringing the ‘211 Patent within this judicial district and elsewhere
by making, using, selling, and/or offering to sell products, including
SCO Manager, that practice one or more claims of the ‘211 Patent and
therefore infringe that patent to the extent such infringing acts have
occurred or occur during the effective period of that patent.
|
135. Denies the allegations of Paragraph 135.
|
135. Denies the allegations of Paragraph 135.
|
136. Upon information and belief, SCO will continue to
infringe the ‘211 Patent unless enjoined by this Court.
|
136. Denies the allegations of Paragraph 136.
|
136. Denies the allegations of Paragraph 136.
|
137. IBM has been damaged by SCO's infringement of the ‘211
Patent, has been irreparably harmed by that infringement, and will
suffer additional damages and irrevocable harm unless this Court
enjoins SCO from further infringement.
|
137. Denies the allegations of Paragraph 137.
|
137. Denies the allegations of Paragraph 137.
|
138. Continued manufacture, use, sale, or offer for sale of
the infringing products, including SCO Manager, or evidence that SCO
was aware of the ‘211 Patent, shall render SCO liable for willful
infringement, as well as active inducement of infringement of the ‘211
Patent, making this an exceptional case and justifying the assessment
of treble damages pursuant to 35 U.S.C. § 284, and the award of
attorneys' fees pursuant to 35 U.S.C. § 285.
|
138. Denies the allegations of Paragraph 138.
|
138. Denies the allegations of Paragraph 138.
|
ELEVENTH COUNTERCLAIM
|
Patent Infringement
|
139. IBM repeats and realleges the averments in paragraphs 1
through 138, with the same force and effect as though they were set
forth fully herein.
|
139. Repeats and realleges Paragraphs 1-138, above.
|
139. Repeats and realleges Paragraphs 1-138, above.
|
140. IBM is the lawful owner, by assignment, of the entire
right, title and interest in United States Patent No. 4,953,209 ("the
‘209 Patent"), duly and legally issued on August 28, 1990 to Ryder et
al., entitled "Self-Verifying Receipt and Acceptance System for
Electronically Delivered Data Objects". A copy of the ‘209 Patent is
attached hereto as Exhibit X.
|
140. Is without information sufficient to admit or deny the
allegations of Paragraph 140, and therefore denies the same.
|
140. Is without information sufficient to admit or deny the
allegations of Paragraph 140, and therefore denies the same.
|
141. Upon information and belief, SCO has been and is
infringing the ‘209 Patent within this judicial district and elsewhere
by making, using, selling and/or offering to sell products, including
UnixWare, that practice one or more claims of the ‘209 Patent and
therefore infringe that patent to the extent such infringing acts have
occurred or occur during the effective period of that patent.
|
141. Denies the allegations of Paragraph 141.
|
141. Denies the allegations of Paragraph 141.
|
142. Upon information and belief, SCO will continue to
infringe the ‘209 Patent unless enjoined by this Court.
|
142. Denies the allegations of Paragraph 142.
|
142. Denies the allegations of Paragraph 142.
|
143. IBM has been damaged by SCO's infringement of the ‘209
Patent, has been irreparably harmed by that infringement, and will
suffer additional damages and irrevocable harm unless this Court
enjoins SCO from further infringement.
|
143. Denies the allegations of Paragraph 143.
|
143. Denies the allegations of Paragraph 143.
|
144. Continued manufacture, use, sale or offer for sale of the
infringing products, including UnixWare, or evidence that SCO was aware
of the ‘209 Patent, shall render SCO liable for willful infringement,
as well as active inducement of infringement of the ‘209 Patent, making
this an exceptional case and justifying the assessment of treble
damages pursuant to 35 U.S.C. § 284, and the award of attorneys'
fees pursuant to 35 U.S.C. § 285.
|
144. Denies the allegations of Paragraph 144.
|
144. Denies the allegations of Paragraph 144.
|
TWELFTH COUNTERCLAIM
|
Patent Infringement
|
145. IBM repeats and realleges the averments in paragraphs 1
through 144, with the same force and effect as though they were set
forth fully herein.
|
145. Repeats and realleges Paragraphs 1-144, above.
|
145. Repeats and realleges Paragraphs 1-144, above.
|
146. IBM is the lawful owner, by assignment, of the entire
right, title and interest in United States Patent No. 5,805,785 ("the
‘785 Patent"), duly and legally issued on September 8, 1998 to Dias et
al., entitled "Method for Monitoring and Recovery of Subsystems in a
Distributed/Clustered System". A copy of the ‘785 Patent is attached
hereto as Exhibit Y.
|
146. Is without information sufficient to admit or deny the
allegations of Paragraph 146, and therefore denies the same.
|
146. Is without information sufficient to admit or deny the
allegations of Paragraph 146, and therefore denies the same.
|
147. Upon information and belief, SCO has been and is
infringing the ‘785 Patent within this judicial district and elsewhere
by making, using, selling and/or offering to sell products, including
Reliant HA, that practice one or more claims of the ‘785 Patent and
therefore infringe that patent to the extent such infringing acts have
occurred or occur during the effective period of that patent.
|
147. Denies the allegations of Paragraph 147.
|
147. Denies the allegations of Paragraph 147.
|
148. Upon information and belief, SCO will continue to
infringe the ‘785 Patent unless enjoined by this Court.
|
148. Denies the allegations of Paragraph 148.
|
148. Denies the allegations of Paragraph 148.
|
149. IBM has been damaged by SCO's infringement of the ‘785
Patent, has been irreparably harmed by that infringement, and will
suffer additional damages and irrevocable harm unless this Court
enjoins SCO from further infringement.
|
149. Denies the allegations of Paragraph 149.
|
149. Denies the allegations of Paragraph 149.
|
150. Continued manufacture, use, sale or offer for sale of the
infringing products, including Reliant HA, or evidence that SCO was
aware of the ‘785 Patent, shall render SCO liable for willful
infringement, as well as active inducement of infringement of the ‘785
Patent, making this an exceptional case and justifying the assessment
of treble damages pursuant to 35 U.S.C. § 284, and the award of
attorneys' fees pursuant to 35 U.S.C. § 285.
|
150. Denies the allegations of Paragraph 150.
|
150. Denies the allegations of Paragraph 150.
|
THIRTEENTH COUNTERCLAIM
|
Declaratory Judgment
|
151. IBM repeats and realleges the averments in paragraphs 1
through 150, with the same force and effect as though they were set
forth fully herein.
|
151. Repeats and realleges Paragraphs 1-150, above.
|
151. Repeats and realleges Paragraphs 1-150, above.
|
152. SCO has breached its contractual obligations to IBM,
violated the Lanham Act, engaged in unfair competition, interfered with
IBM prospective economic relations, engaged in unfair and deceptive
trade practices, breached the GPL, infringed IBM copyrights and
infringed IBM patents, as stated above.
|
152. Denies the allegations of Paragraph 152.
|
152. Denies the allegations of Paragraph 152.
|
153. Pursuant to 28 U.S.C. § 2201, IBM is entitled to
declaratory relief with respect to SCO's and IBM's rights, including
among other things a declaration that SCO has violated IBM's rights as
outlined above by breaching its contractual obligations to IBM,
violating the Lanham Act, engaging in unfair competition, interfering
with IBM's prospective economic relations, engaging in unfair and
deceptive trade practices, breaching the GPL, infringing IBM copyrights
and infringing IBM patents, and is estopped as outlined above.
|
153. Denies the allegations of Paragraph 153.
|
153. Denies the allegations of Paragraph 153.
|
154. Moreover, IBM is entitled to a declaration that (1) SCO
has no right to assert, and is estopped from asserting, proprietary
rights over programs that SCO distributed under the GPL except as
permitted by the GPL; (2) SCO is not entitled to impose restrictions on
the copying, modifying or distributing of programs distributed by it
under the GPL except as set out in the GPL; and (3) any product into
which SCO has incorporated code licensed pursuant to the GPL is subject
to the GPL and SCO may not assert rights with respect to that code
except as provided by the GPL.
|
154. Denies the allegations of Paragraph 154.
|
154. Denies the allegations of Paragraph 154.
|
155. There is a justiciable controversy between IBM and SCO
with respect to all of the issues described above.
|
155. Denies the allegations of Paragraph 155.
|
155. Denies the allegations of Paragraph 155.
|
156. Absent declaratory relief, SCO's misconduct will continue
to cause injury to IBM, the open-source community and the public at
large.
|
156. Denies the allegations of Paragraph 156.
|
156. Denies the allegations of Paragraph 156.
|
|
FIRST AFFIRMATIVE DEFENSE
IBM fails to state a claim upon which relief may be granted.
|
FIRST AFFIRMATIVE DEFENSE
IBM fails to state a claim upon which relief may be granted.
|
|
SECOND AFFIRMATIVE DEFENSE
IBM claims are barred by the doctrines of waiver, estoppel,
acquiescence, and/or laches.
|
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.
|
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.
|
FOURTH AFFIRMATIVE DEFENSE
IBM's claims are barred by license.
|
|
FIFTH AFFIRMATIVE DEFENSE
IBM's claims are barred by fraud, illegality, collusion, conspiracy
and/or lack of clean hands.
|
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.
|
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.
|
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.
|
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.
|
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.
|
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.
|
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.
|
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.
|
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.
|
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
On information and belief, one or more of the copyrights at issue is,
or may be, unenforceable by reason of IBM's inequitable conduct, acts
or omissions before the United States Patent and Trademark Office.
|
|
|
SIXTEENTH AFFIRMATIVE DEFENSE
IBM is not, or may not be, the owner of the #746, #211, #209 or #785
Patents at issue.
|
FIFTEENTH AFFIRMATIVE DEFENSE
IBM is not, or may not be, the owner of the #746, #211, #209 or #785
Patents at issue.
|
|
SEVENTEENTH 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 and/or 112.
|
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.
|
|
EIGHTEENTH 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.
|
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 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
On information and belief, the #746 Patent or one or more of the other
patents at issue is, or may be, unenforceable by reason of IBM
inequitable conduct, acts or omissions before the United States Patent
and Trademark Office.
|
|
|
TWENTIETH AFFIRMATIVE DEFENSE
SCO has not infringed, literally or under the doctrine of equivalents,
any valid claim of the #746, #211, #209 and #785 Patents.
|
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.
|
|
TWENTY FIRST 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.
|
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 SECOND 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 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 THIRD AFFIRMATIVE DEFENSE
IBM has not and cannot plead and meet the requirements for an award of
enhanced damages or attorneys' fees.
|
TWENTY SECOND AFFIRMATIVE DEFENSE
IBM has not and cannot plead and meet the requirements for an award of
enhanced damages or attorneys' fees.
|
|
TWENTY FOURTH AFFIRMATIVE DEFENSE
SCO has an express or implied license to practice some or all of the
claims embodied in the patents at issue.
|
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 FIFTH AFFIRMATIVE DEFENSE
Upon information and belief, IBM lacks standing to assert that SCO
infringed some or all of 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.
|
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.
|
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 03:49 AM EST |
Nr.11: they deny everything. So they deny that SCO-defendant acquired UNIX
rights from Tarantella in 2000?[ Reply to This | # ]
|
|
Authored by: RE on Monday, February 09 2004 @ 03:52 AM EST |
Isn't it better, for readability and to see what the differences are to leave
the column "SCO's Amended Answer" empty of with the text "Same as
previous answer".
In that way you can see quikly what the answers are and what the differences
are.
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 03:54 AM EST |
When the amended answer is unchanged, it would be better to
note "unchanged", when the amended response drops an answer
completely, mark it as "removed". Only otherwise, give the full text
of the revised version.
[ Reply to This | # ]
|
|
Authored by: Anonymous Coward on Monday, February 09 2004 @ 03:56 AM EST |
Lets see, this is what I've seen in changes.
They moved the 15th afirmative defense to 18th, and expanded it drastically with
an explanation why.
They dropped the original 19th afirmative defense, most likely due to it being
superseded by the new 18th afirmative.
Adding in of a new 25th afirmative saying that IBM has no right to the usual
damages awarded (triple costs) since SCO has handled in good faith and this is a
normal patent case
For the rest it seems to be identical but the only comparator I've run is Eyball
Mk. 1.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 04:02 AM EST |
IBM: "You went with the Open Source model for quite some time"
SCO: "No we didn't"
IBM: "You even participated in Open Source Initiatives as a key
player"
SCO (stomps it's foot on the ground): "No - we - didn't!"
IBM: "When you recognised that there's some money to make, you
finally chose to milk it off in court"
SCO (lays on the ground squealing with anger): "No we didn't, and - there's
- no - scheme!!!"
(may go on until child is sent to it's room with a detention of not watching TV
for some days)
Well, sometimes my children have the same attitude towards reality, but at least
they haven't sued me (yet)...[ Reply to This | # ]
|
|
Authored by: martimus on Monday, February 09 2004 @ 04:09 AM EST |
I really like these tabular formations. It makes the comparison process much
easier and more comprehensible. Thanks for the effort.[ Reply to This | # ]
|
|
Authored by: StringCheesian on Monday, February 09 2004 @ 04:26 AM EST |
They're claiming LZ77, RLE, and huffman as prior art against LZ78?
LZ78 is based on LZ77, and to a lesser extent huffman. And RLE is a totally
different, and much simpler, approach to data compression.
It's like saying the Wright brother's plane is prior art that invalidates any
patents on the Boeing 747.[ Reply to This | # ]
|
- LZ78 compression - Authored by: Anonymous on Monday, February 09 2004 @ 05:42 AM EST
- LZ78 compression - Authored by: AJWM on Monday, February 09 2004 @ 11:46 AM EST
- Software patents are bad - Authored by: Anonymous on Monday, February 09 2004 @ 03:37 PM EST
- Links - Authored by: Anonymous on Monday, February 09 2004 @ 03:59 PM EST
- Links - Authored by: jdg on Monday, February 09 2004 @ 04:29 PM EST
|
Authored by: belzecue on Monday, February 09 2004 @ 04:29 AM EST |
Can we colour code the cells to flag changes? Yellow background for an answer
that has changed from previous? This would vastly speed up parsing the doc to
see what they altered (that's what we want to know).[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 04:53 AM EST |
How about color-coding them? Use e.g. red text where there are differences?
[ Reply to This | # ]
|
|
Authored by: SirFozzie on Monday, February 09 2004 @ 05:01 AM EST |
" (SCO) 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."
Translated to:
"Help!
They're doing what we're doing.... only they're doing it cheaper and better! We
have a right to gouge the consumer as we see fit, and these hippy commies (who
believes in sharing FOR FREE when you can sell them the equivalent of bottled
water) are infringing on our God-Given right to profit. MAKE EM STOP, JUDGE..
MAKE EM STOP!
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 05:12 AM EST |
Yaal are awesome! I loved reading this, but I am a geek so that is to be
expected.
a couple things
93 what is MX?
155 what is justiciable?
TNX
Zeke[ Reply to This | # ]
|
|
Authored by: Mark_Edwards on Monday, February 09 2004 @ 05:20 AM EST |
Did SCO lie on number 40???
IBM Said : "40. In addition, SCO fostered, and regularly contributed to,
multiple open-source development projects in order to enhance the capability of
SCO's products and services. In fact, SCO's business model depended upon
incorporating contributions from the open-source community into products that it
open sourced."
SCO's Reply : "40. Admits that it has contributed to certain open-source
development projects, but denies the remaining allegations of Paragraph 40 not
specifically admitted herein."
but in their 10Q filed on the 6th March 2002 they had this paragraph....
"WE RELY ON INDEPENDENT DEVELOPERS IN THE OPEN SOURCE COMMUNITY, SUCH AS
LINUS TORVALDS, IN ORDER TO RELEASE UPGRADES OF OUR LINUX-BASED PRODUCTS.
Many of the components of our software products, including the Linux
kernel, the core of the Linux operating system, are developed by independent
developers in the open source community and are available for inclusion in our
products without cost. Linus Torvalds, the original developer of the Linux
kernel, and a small group of independent engineers have in the past developed
and upgraded the Linux kernel. Neither Mr. Torvalds nor any significant
contributor to the Linux kernel is an employee of ours, and none of these
individuals are required to further update the Linux kernel. If these
independent developers and others in the open source community do not further
develop the Linux kernel and other open source software included in our products
on a timely basis, or at all, our ability to enhance our product offerings will
suffer. As a consequence, we will be forced to rely to a greater extent on our
own development efforts or license commercial software products as replacements,
which would increase our expenses and delay enhancements to our products. For
example, in the past we have sometimes been unable to upgrade all open source
components of a product in connection with a proposed release because these
independent developers had not yet made enhancements. Any failure on the part of
the kernel developers to further develop and enhance the kernel could also
stifle the development of additional Linux applications."
---------------------------------
mark.
[ Reply to This | # ]
|
|
Authored by: Mark Levitt on Monday, February 09 2004 @ 05:22 AM EST |
"8. Unix is a name used to characterize a family of operating systems that
share common characteristics and meet certain well-publicized "UNIX"
standards. The earliest Unix operating system was built by software engineers at
Bell Laboratories, the research division of AT&T. "
SCO's response to this claim from IBM seems to be the root of their deluded
world view.
They say:
"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."
So, they deny the definition that The Open Group (who own the name UNIX) use.
They deny that UNIX is a published standard.
It seems to me they want to re-write history to make UNIX a single operating
system, written entirely by one company, and then licensed to others.
I.e., they want UNIX to have the same history as Windows or Netware.
You'd think they'd realize that its hard to rewrite history when the people who
lived are still around.
[ Reply to This | # ]
|
|
Authored by: maroberts on Monday, February 09 2004 @ 05:37 AM EST |
Refutation of SCOs amended answers. [ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 05:56 AM EST |
Thank you for the colour. It helps enormously.
To me, it looks like the old Nineteenth Affirmative Defense and the new
Eighteenth are the same, just the new has details while the old one is a general
vague allegation.
On this point, it's hard to know which side to cheer for. On the one hand, my
enmity is directed toward The Great Satan^W^WSCO Group; on the other, it's hard
to complain about someone actually pointing out to a judge that the patent
office has been rubber-stamping questionable software patents by the truckload.
Oh, well, it's a very minor sideshow that probably won't even get to trial, so
it's not worth worrying about overmuch.
They also dropped the Fifteenth Affirmative Defense (impeaching IBM's copyright
registration), and added the new Twenty Fifth (treble damages for patent
infringement are not justified).[ Reply to This | # ]
|
|
Authored by: StringCheesian on Monday, February 09 2004 @ 05:58 AM EST |
They're claiming LZ77, RLE, and huffman as prior art against LZ78?
LZ78 is based on LZ77, and to a lesser extent huffman. And RLE is a totally
different, and much simpler, approach to data compression.
It's like saying the Wright brother's plane is prior art that invalidates any
patents on the Boeing 747.[ Reply to This | # ]
|
|
Authored by: jmc on Monday, February 09 2004 @ 05:59 AM EST |
If SCO are denying that they terminated IBM's AIX licence in paragraph 81,
doesn't that mean the end of their new claims too?
Also in paragraph 53 they say that IBM has misappropriated trade secrets - I
thought they'd just dropped that idea?
[ Reply to This | # ]
|
- Para 81 - Authored by: Anonymous Coward on Monday, February 09 2004 @ 07:12 AM EST
- Para 81 - Authored by: Tsu Dho Nimh on Monday, February 09 2004 @ 07:38 AM EST
- Para 81 - Authored by: jdg on Monday, February 09 2004 @ 10:30 AM EST
- Para 81 - Authored by: Anonymous on Monday, February 09 2004 @ 10:00 AM EST
|
Authored by: Anonymous on Monday, February 09 2004 @ 07:09 AM EST |
Fifth Affirmative defense - they drop "fraud" from the list. (Unless
that's just a typo in the transcriptions?)
But wasn't the fraud allegation used as part of the arguments to compell SCO to
disclose with specificity? So maybe the drop has some significance (at least in
SCO's mind)?[ Reply to This | # ]
|
|
Authored by: carey_pridgeon on Monday, February 09 2004 @ 07:19 AM EST |
Perhaps before anyone colour codes the chart, we should ask SCO if they'd grep
it for differences. Although they'll probably then claim they wrote half of it,
and re-submit it in Sanskrit to 'obscure their copyrighted content', so perhaps
not :)[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 07:43 AM EST |
from http://www.linuxdevcenter.com/pub/a/linux/2002/02/28/caldera.html
"In January (2002), Caldera, the latest owners of the "official"
Unix source code, decided to release some of the older versions (up to
"V7" and "32V") under an open source license."
"It was Caldera that, on January 23 of this year, disencumbered the entire
source code of Unix, up to and including the Seventh Edition (1979) and its VAX
port "32V" from which BSD had started the development that led to
4.0BSD. (32V is basically V7, minus some bits that were written in the PDP-11
assembly language, and the remainder was adapted to work on the VAX.) This seems
to mean that BSD Unix is, at last, fully disencumbered, even the few parts that
couldn't be used in the various BSD systems over the years due to residual
AT&T copyrights.
Interestingly, Caldera released it under the original BSD copyright."
Is this article factually incorrect, is it an accidental omission or has it no
bearing on the case?
[ Reply to This | # ]
|
|
Authored by: Kevin on Monday, February 09 2004 @ 07:44 AM EST |
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.
This statement shows abysmal ignorance of patent
and
publication practice.
It is conventional on a journal article
or
conference proceeding to list as co-authors anyone who
participated in the work,
in whatever role. For instance,
the supervisor of a research group is normally
included, and
a graduate student's thesis advisor is always listed. In the
software field, the paper may list also individuals
such as testers, technical
writers, support staff who
did not directly invent the material at
issue.
For a
patent application, however, individuals who are
not the
inventors cannot legally be included. To include them can invalidate the
application.
SCO's claim that
authors of publications were omitted with
intent to defraud
is at best implausible. 'Ridiculous' would be more
accurate.
--- 73 de ke9tv/2, Kevin (P.S. My surname is not McBride!) [ Reply to This | # ]
|
|
Authored by: technomom on Monday, February 09 2004 @ 08:42 AM EST |
44. (IBM) Like thousands of other developers, IBM has properly contributed
source code to Linux under the GPL. In fact, SCO has included IBM contributions
to Linux in Linux products that SCO has distributed under the GPL. Like all
recipients of SCO's Linux distributions, IBM is entitled to the protections of
the GPL with respect to the IBM contributions, as well as any other
contributions, included in SCO's Linux distributions, of which IBM is a
recipient.
44. (SCO) 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.
SCO's response begs the question:
So were SCO's contributions
of IBM code to Linux projects under the GPL proper and legal?
JoAnn [ Reply to This | # ]
|
|
Authored by: JeR on Monday, February 09 2004 @ 08:45 AM EST |
I looked through the entire document for changes, but what I found was in fact
something that should by now have changed but isn't.
- I see SCO still
alleges it is "without information sufficient to admit or deny the allegations
of Paragraph[s]" 128, 134, 140 and 146, which are all about the factual
statements about the Patent Infringement Counterclaims. Is SCO still seeking a
patent lawyer to help them with that part of the case? Apparently not. The
EIGHTEENTH and NINETEENTH AFFIRMATIVE DEFENSE suddenly have all the information,
so the original statements in 128, 134, 140 and 146 are all false or SCO is
simply contradicting itself, again! (Speaking of which: does SCO actually
contradict itself about the GPL within the filed documents, or only so in its
actions and public statements?)
-
There seems to be an error in this 18th
defense: "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." Where does this
error originate?
-
Another problem, where is the proof (i.e. where are the
necessary exhibits) that shows the invalidity of patent '211? Isn't "On
information and belief" a rather empty phrase in this context?
-
Another
error: "Another article in[sic?!] which Matyas is [cited as?] an author is
entitled "Terminal Control of Encipher and Decipher Data Operations" published
by IBM in August, 1981."
-
I found this one quite funny: "THIRTEENTH
AFFIRMATIVE DEFENSE
SCO has acted legally and properly at all relevant times
and IBM is therefore barred from any relief whatsoever." What illegal acts did
SCO perform at the irrelevant times?
-
And another thing: "FIFTEENTH
AFFIRMATIVE DEFENSE
IBM is not, or may not be, the owner of the #746, #211,
#209 or #785 Patents at issue." What is this all about? IBM is the owner
of those patents. I gathered that the validity of those patents was SCO's patent
lawyer's problem, not their accredition to IBM's inventors?!
(By the
way, I think people should stop adding "IANAL" and similar comments to their
posts. There are jyust too many people here that aren't lawyers. Or should I be
inclined to believe that anyone who doesn't add "IANAL" or similar to his
contribution is in fact a lawyer? Let the real lawyers please stand up and add
"IAAL" or similar to their messages, and let the rest of us simply write what we
want. It saves at least five characters in all of those messages from
non-lawyers!
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 08:47 AM EST |
This table could be made much clearer with a tiny change: make the widths of
the last two columns the same (say, using width=30%). This should cause
identical text blocks to be formatted the same way, making the similarity
apparent.
Thank you for the good work.
[ Reply to This | # ]
|
|
Authored by: ChrisP on Monday, February 09 2004 @ 09:08 AM EST |
First the typo. In the second paragraph discussing the 211 patent, starting
"More specifically, U.S. Patent 4,688,181 to Cottrell", the sentence
"These additional prior art references were not themselves material to
patentability of the ''211 patent." should be deleted as it is not in the
PDF. Looks like an accidental concatenation of the preceding and following
sentences, and doesn't make sense in context.
It's interesting that SCOG have done their best to reference prior art from IBM
as being the prime reason for rejecting the patents. I guess the idea is that
IBM cannot claim ignorance of its own IP.
---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 09:45 AM EST |
I would have expected that IBM would have mentioned the organization that
received the Unix trademark (an "open" standards organization), and
the fact that Linux strives to develop towards those standards does not make
Linux a derivative of SCO Unix, but a seperate product developed in conjuncion
with open published standards.
www.unix-systems.org
"In 1994 Novell (who had acquired the UNIX systems business of
AT&T/USL) decided to get out of that business. Rather than sell the business
as a single entity, Novell transferred the rights to the UNIX trademark and the
specification (that subsequently became the Single UNIX Specification) to The
Open Group (at the time X/Open Company). Subsequently, it sold the source code
and the product implementation (UNIXWARE) to SCO. The Open Group also owns the
trademark UNIXWARE, transferred to them from SCO more recently."[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 09:48 AM EST |
My memory was that redhat wasn't the first Linux distribution. SLS was the
oldest one that I could remember, found a web site where someone re-posted an
old copy of SLS linux 1.03
http://www.ibiblio.org/pub/historic-linux/distributions/sls/1.03/
From the changelog included the original release was:
# Peter
# pmacdona@sanjuan.uvic.ca
920901: Initial release (.96p4). Didn't use jump tables though.
921007: Release .98p0. Jump tables used.
I remember downloading it for free but I believe it was also sold. The
slackware version was originally based on SLS which was basicly discontinued.
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 10:10 AM EST |
Another good summary from hitandrunid2003 on the SCOX board from yahoo.
http://finance.messages.yahoo.com/bbs?.mm=FN&action=m&board=1600684464&a
mp;tid=cald&sid=1600684464&mid=91765
SCO's message control is amazing.
So much legal pressure on SCO (see my previous post #91759) - NINE legal fronts
with 3 different companies (and corporate budgets).
So much potential legal muscle arrayed against them untapped with the Redhat
legal fund (http://lwn.net/Articles/42374/) of $10mil?, the ODSL legal fund
(http://www.osdl.org/newsroom/press_releases/2004/2004_01_12_beaverton.html) of
potentially $50mil.
So many LOST legal battles: the German court prohibiting further Linux claims in
the absence of evidence and fining them $10k
(http://www.infoworld.com/article/03/09/02/HNscofined_1.html). (And them
subsequently shutting up permanently over there.) The motion to compell:
paraphrasing the judge -'when IBM is satisfied that you have complied with
discovery then we'll consider your motions'
(http://www.groklaw.net/article.php?story=2003121122033016). The settlement on
the lawsuit against them from stock manipulation in their IPO
(http://bankrupt.com/CAR_Public/030918.mbx search for SCO Group).
The dubious SEC filings (http://finance.yahoo.com/q/sec?s=SCOX) where they fail
(until the most recent one) to list Novell's disputation of SCO's claims of
"ownership" of the codebase. All the while assuring the public with
statements that the issue with Novell was over, and the whole time Novell is
sending them letter after letter
(http://www.novell.com/licensing/indemnity/legal.html) saying "au
contrair". Then Novell ratchets up the pressure to the point of invoking a
contractually permitted audit!
And while we are talking about Novell, let us not forget their and HP's legal
indemnifications (http://www.eweek.com/article2/0,4149,1434896,00.asp and
http://www.newsfactor.com/story.xhtml?story_id=22381).
And all the legal stumbles (go to www.groklaw.net, I can't link to all of them)-
claiming as infringing code that they themselves contributed to Linux (before
changing their name from Caldera), distributing Linux under the GPL while
simultaneously claiming that the GPL is unconstitutional, Kevin McBride (YES!
DARL's BROTHER!) admitting in court that they have no evidence (we need IBM to
provide it, you see!!!), Novell waiving their legal claim, per their contractual
rights, the licensing contract terms changing with a change of company
ownership, as happened when Caldera bought the Santa Cruz Organization (who
owned the contract) before changing their name to SCO Group, etc, etc.
That's all I've got, I'm spent. Thank you and goodnight!
[ Reply to This | # ]
|
|
Authored by: Dave23 on Monday, February 09 2004 @ 10:57 AM EST |
First: I have really enjoyed the immaculate dissection of the SCO/IBM suit
here on Groklaw. Thankyou PJ for all your work.
Second: I'll add my two
cents worth. My eyebrows raised when I saw SCO's answer to IBM's counterclaim
paragraph 67. IBM is complaining about SCO principals' statements, and SCO
essentially answers with a statement. (Emphasis mine in the quote
below.)
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.
A lovely bit of sophistry. (Essentially they are answering an
irrelevant proposition in the first part of their answer by confusing a
statement with the contested fact.) Another way of putting it is:
"(You say
what we said is false, and) we agree with you that what we said is true."
My
oh my. I presume that eventually SCO eventually will be compelled to cut out
the that part of the response?
IANAL so I'd be curious as to how an advocate
would handle this bit of White Knight's flimflam.
--- Gawker [ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 11:09 AM EST |
8. Unix is a name used to characterize a family of operating systems
that share common characteristics and meet certain well-publicized "UNIX"
standards.
The nice thing about the SCO case is that they keep
denying this important bit. Their case against IBM and their defense to the
copyright infringement counterclaim fall apart when this assertion is proven.
Splitting the UNIX trademark from the UnixWare source code was the best thing
that Novell ever did. [ Reply to This | # ]
|
|
Authored by: DMF on Monday, February 09 2004 @ 12:02 PM EST |
I can't imagine that SCOG is mad (or rich) enough to take on IBM head-up in the
patent arena, as indicated by their (new) AD 18.
Is it possible that this is a tactical move, intended to convince someone (like
the judge) that there is a possibility that they could prevail, maybe derailing
potential orders or summary judgement?
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 12:11 PM EST |
former patent examiner here.
Documents published by the inventor in excess of one year
prior to the filing date may be used against the
applicant; a classic example used in training is
3M declining to patent the post it note, because it was
productized several years after the inventor made the idea
semi-public.
If there were undisclosed publications relevant to
the examination, then this may bring into question the
validity of the application's prosecution w.r.t 35 USC 102(b) and 35 USC 102(e).
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 12:22 PM EST |
In 14th:
[Dynix] <- Sequent <- Unix (accepted by SCO)
IBM <- Sequent[Dynix] (accepted by SCO)
SCO: "and denies the remaining allegations of Paragraph 14 not specifically
admitted herein."
err.. there is nothing else to deny in there..
[ Reply to This | # ]
|
|
Authored by: grouch on Monday, February 09 2004 @ 01:00 PM EST |
Are my eyes playing tricks on me, or are there no changes in SCO's answers, 1. -
156.? If those are unchanged, then the triple-column format just scrunches
things up. Two tables of two columns each, one showing the counterclaims -
answers, and one showing the highlighted changes in the affirmative defenses,
would be clearer, imo.
Fine and useful work, Ken Herron, in spite of the above nit-pick![ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 01:08 PM EST |
The first commercial distro was yaggsdril(sp). [ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 01:29 PM EST |
For someone more technically inclined than I, can someone look more closely at
SCO's 18th Affirmative Defense arguments? They may or may not have some valid
arguments here.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 01:32 PM EST |
122. IBM has placed or caused to be placed a copyright notice on these
contributions of source code to Linux under the GPL and has otherwise complied
with the copyright laws of the United States in this respect. IBM does not
permit the unauthorized copying of its Linux contributions.
and sco response
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.
is this a misrepresentation (switching linux with unix in the response), or is
this a typo?[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 01:35 PM EST |
122. IBM has placed or caused to be placed a copyright notice on these
contributions of source code to Linux under the GPL and has otherwise complied
with the copyright laws of the United States in this respect. IBM does not
permit the unauthorized copying of its Linux contributions.
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.
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.
IBM talks about: these contributions of source code to Linux under the GPL
SCO replies with: certain of its AIX and Dynix contributions to UNIX ( !?!? )
Why ?
What is the message here ?[ Reply to This | # ]
|
|
Authored by: mdchaney on Monday, February 09 2004 @ 01:36 PM EST |
Great job! Here are the two suggestions that I have for making it a bit more
readable:
1. Make the columns the same size:
<td style="width:33%;">
<p align="center"><b>IBM
Counterclaims</b></p>
</td>
<td style="width:33%;">
<p align="center"><b>SCO's Answer</b></p>
</td>
<td style="width:33%;">
<p align="center"><b>SCO's Amended
Answer</b></p>
</td>
2. If there's no change from "Answer" to "Amended Answer",
it would be far easier to have "same", "no change", or
something else simplistic in the "Amended Answer" column. Not to poop
on Mr. Herron's incredible work here, but the point is that we're interested in
the changes.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 01:43 PM EST |
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.
So SCO cant even do a simple bit of searching on
the Internet to track the development of Linux.
Sounds like most of
their denials are either because they do not have any clues, or are to lazy to
check.
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 02:12 PM EST |
Hey, how did the author make this table?! I tried for 2 days
to get Open Office Writer to create a multipage table, only
to find out in the end that it's impossible! OOWriter is
limited to one page tables! Did the author use another
program, perhaps the dreaded M$ Word? Or is there some OOS
alternative that will create multipage tables? (be nice if it
could handle ttf's as well). A bit off topic, but still
relevant, I think.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 02:40 PM EST |
"SCO states that IBM's request for treble damages and attorneys fees is
barred because SCO acted in good faith"
HardyHardyHardyHardyHarHarHarBlahch!!!!!!
ROFLMAO....[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 02:49 PM EST |
make at least the second and third cells the same size, comparing by reading
over it gets so much easier then.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 03:17 PM EST |
I think the above summary table is outstanding ! Kudos to
those who have compiled it.
I love some of IBMs claims, specifically those concerning the
GPL and the "scheme" SCO is undertaking. I think IBM did a
great job on their work to prepare this. I'm a bit worried about
IBM's position on a few of those patents, but I don't think the
weakness in their patent case will give SCO any sort of
foothold with their case.
I don't see how SCO has any legal leg to stand on. The first
part of this case *has to be* them showing evidence of IP
contamination in Linux source. I love the fact that the judge
figured this out and is holding them to the fire on it.
It must be quite a job for a judge to understand all this stuff. [ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 03:26 PM EST |
I wish that IBM would have put in claims to the effect of :
- all the Linux source code since the beginning of time is
available at various websites for free downloading.
- Linux is developed using an open, publicly available check
in system. Who checks in what is always available for public
scrutiny.
- *IF* SCO technology has truly made its way into that source,
there should be bits and pieces of SCO IP in the Linux source
code.
- *IF* SCO techology has made its way into Linux source
code via IBM, there should be a traceable path from the IBM
developer to the source code via his/her file check ins.
- *IF* SCO technology has made its way into Linux source,
SCO should be able to easily identify it and share it with the
open source community.
- *IF* SCO is unable to find bits of SCO IP in Linux and if
SCO is unable to find IBM contributors, then there is no SCO
IP in Linux.
This is the crux of the case. If SCO IP is truly in Linux, then
SCO should be able to a) find it and b) communicate who,
what, where and when to the open source community. I'm
hoping that a judge recognizes this fact and holds SCO to
SHOWING US THE CODE.
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 03:32 PM EST |
I wonder if the judges associated with the SCO case ever visit
Groklaw ? I wonder if they know it exists ?
Some of the technology and background and terminology
associated with the SCO case must be quite intimidating to
someone who doesn't know anything about operating systems,
coding, source, etc. I wonder if they do background
research on the internet ? Where else would one look for a
detailed (not very concise) history of Unix, unix and Linux ? [ Reply to This | # ]
|
|
Authored by: blang on Monday, February 09 2004 @ 03:34 PM EST |
Someone at SCO is doing thir homework.
The affirmative defense of the patent claims was pretty long-winded, and they
even bothered looking for similar patents.
I don't know if that defense is BS or not, but it is unusual to see SCO doing
some real research and homework, and not just sputing drivel. Maybe the big
difference is that in patent claims lawyers and paralegals do the footwork,
while in the 'code comparison' part of SCO's case, they depend heavily on
charlatans like McBride, Stowell, etc. to provide Unix expertise. At least that
would explain the mindboggling incompetence SCO has shown so far.
Looks to me that the contersuit is handled by a completely different set of
lawyers, or Darl and his stock junkies have minimal involvement.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 04:14 PM EST |
IBM 69. SCO has misrepresented that IBM has infringed SCO's copyrights,
and has threatened to sue IBM for copyright infringement, with respect to Linux.
For example, at its 2003 SCO Forum, SCO represented that Linux is an
unauthorized derivative of Unix, that IBM has infringed its rights in Linux and
that SCO is entitled to damages and injunctive relief against
IBM.
SCO 69. Denies the allegations of Paragraph
69.
Emphasis added by me. Applying SCO's own lingua-twisting logic, does
this mean that SCO denies that they have a case? :) [ Reply to This | # ]
|
|
Authored by: mobrien_12 on Monday, February 09 2004 @ 04:42 PM EST |
8. Unix is a name used to characterize a family of operating
systems that share common characteristics and meet certain well-publicized
"UNIX" standards. The earliest Unix operating system was built by software
engineers at Bell Laboratories, the research division of AT&T.
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.
10. In 1993, AT&T sold its Unix assets -- then held by its
subsidiary, Unix System Laboratories, Inc. ("USL") -- to Novell, Inc.
("Novell"). In 1995, Novell sold some, not all, of its Unix assets to The Santa
Cruz Operation, Inc., now known as Tarantella, Inc. ("Original SCO"), which is
not affiliated with counterclaim-defendant SCO.
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.
I can't believe SCO is
being so stubborn... many of their denials are so trivial to disprove that it
damages their credibility. For example
8. The Open Group owns the
UNIX trademark. The Open Group says what is Unix and what is not. NOT SCO.
10. Novell clearly sold only part of its UNIX assets. The Open Group
holds a large chunk of it. Novell still holds all the patents. Even if you
ignore the contractual rights Novell witheld in the sale, you can't ignore these
other two points.
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 05:24 PM EST |
Re 33. The viability of SCO's product offerings has depended in large measure
upon the efforts of the open-source community in enhancing products and making
them compatible for use across multiple software and hardware platforms. Indeed,
SCO incorporated certain code licensed pursuant to the GPL into its proprietary
Unix products. SCO has also relied on independent developers in the open-source
community, such as Linus Torvalds, in order to release upgrades of SCO's
Linux-based products.
What about SAMBA that they now ship.
SCO 33. Denies the allegations of Paragraph 33.
Must be a lie. Judge please read.[ Reply to This | # ]
|
|
Authored by: George_Wa_State on Monday, February 09 2004 @ 05:26 PM EST |
Leave the table just the way it is.
It is fine, without any OTHER colors
and crap to junk it up.
It is easy to read. And the red and the blue
make it easy to find the differances. PERIOD!
All you have to do is scroll down untill you
see the red/blue and there you are. Simply stop
and see what the differances are.
And you do this over and over untill you reach
the end. You couldn't get much simpler and
elogant (sp).
The 33% on the table would make it LOOK better.
But it is not about looks. It is about content.
George
" No! I wont get down off of my soap box!"[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, February 09 2004 @ 06:18 PM EST |
Just curious: What are the purpose of paragraphs 78, 84, 90, etc?
[ Reply to This | # ]
|
|
Authored by: roman_mir on Monday, February 09 2004 @ 06:27 PM EST |
PJ - great job! Isn't it nice to see IBM mention GPL so many times? Especially
paragraphs like the paragraph 74
SCO denies the
following:
SCO has infringed and is infringing IBM's copyrights by
copying, modifying, sublicensing and/or distributing Linux products after its
rights under the GPL terminated. SCO has taken copyrighted source code made
available by IBM under the GPL, included that code in SCO's Linux products, and
copied, modified, sublicensed and/or distributed those products other than as
permitted under the GPL. - this is just beautiful, IBM is using GPL to fight
this battle, it could mean the first test of the GNU Public Licence in an actual
court situation (prior to this all GPL related violations were settled outside
of the courtroom.)
Many paragraphs after this one are also talking about
GPL and its violations by SCO.
It is very good to see IBM specifically
to be on the side of the Free Software in a court case.
However I am
somewhat surprised not to see any mentioning of the GPL creator - RMS. IBM
states that Linus created Linux in the nineteens but they skip an important step
- creation of GPL itself and of the GCC compiler as well as other tools that
made it possible to even have Linux on the first place. These tools were made
FREE long before Linux and they were made for UNIX, which is interesting in
itself. They were adhering to the UNIX open standards, which is also missing in
the allegations as far as I can see.
[ Reply to This | # ]
|
|
Authored by: roman_mir on Monday, February 09 2004 @ 06:42 PM EST |
Also it is nice to see IBM kick SCO in the nuts and tell them what they really
are - not a company with a product but a bunch of cheats and
thieves.
49. Like SCO's original Linux business, however, this
enterprise failed. SCO has not been able to operate a successful, legitimate
business concerning Linux and/or Unix. With apparently no other prospects, SCO
shifted its business model yet again -- this time to litigation and threats of
litigation, as is described below.
Even though they do not have to,
IBM makes it clear to the judge that the Linux kernel developers were and are
ready to mitigate any damages (non-existant damages they are) by removing the
infringing code from the kernel source, but SCO did not allow that to happen.
This is good - show to the judge that SCO is not willing to negotiate and work
things out, they rather waste court's time and use these tactics to inflate
their market value (in order to dump stock):
65. SCO has obfuscated its
claims and has hidden its supposed evidence because the evidence does not
demonstrate the breaches and violations that SCO has alleged. Moreover, key
developers and influence leaders in the open-source community, including leaders
of Linux kernel development, have stated publicly that they are prepared
immediately to remove any allegedly offending material from the Linux
kernel. Rather than permit remediation or mitigation of its alleged injuries
(which are non-existent), SCO has declined to reveal the particulars of the
alleged violations in order to artificially and improperly inflate the price of
its stock.[ Reply to This | # ]
|
|
Authored by: trekkypj on Monday, February 09 2004 @ 08:48 PM EST |
Linux = Linux Is Not UniX
There. Now SCO can't claim that Linux is unix, because the very name of the OS
points out that tit is not UNIX.
Well it's a better argument then most of SCO's ones! ; )
....I know, I know.... not funny at all
It's 1:42 GMT and I'm hung over.......
---
"I am free of all prejudices. I hate everyone equally."
WC Fields.[ Reply to This | # ]
|
|
Authored by: ChrisP on Monday, February 09 2004 @ 08:58 PM EST |
With all this fuss about what is or is not Unix, I went to The Open Group web
site http://www.opengroup.org/ and had a look.
Igorning versions I see:
Caldera - OpenServer
Caldera - Unixware
Cemprus - FTX
Compaq - True64
Fujitsu - Reliant UNIX
Fujitsu - Solaris
HP - HP/UX
IBM - AIX
IBM - OS/390
NCR - NCR Unix
NEC - FT-UX/V(EX)
NEC - UX/4800
SGI - IRIX
Sun - Solaris
That's 13 operating systems from 10 companies making 14 in all. No doubt there
were other Unix standard systems in the past, and some of the above seem to be
on the way out.
What does it all mean?
HP, Sun and IBM have about 90% of the declining Unix market between them. The
rest (general purpose OSs) will either die (True64, Unixware etc.) or find a
niche (IRIX/graphics, OpenServer/Point of Sale). The big 3 (and SGI :) are all
making a big move to Linux at the low end to maintain hardware sales. Linux
lowers customers' OS cost whilst maintaining OS quality, and this is more
important on low end hardware. High-end hardware is seriously expensive, and the
OS development costs can in part be subsumed into the high-end service contracts
you need to run an 16 or more way server.
As a low-end software only company, The SCO Group are particularly vulnerable.
They can't compete on cost with Linux, their niches are under attack, they don't
have any interesting hardware and their customers, and development community
were too obstinate to move to Linux earlier. Now they're like a stranded shark,
thrashing around and trying to bite the legs off anyone who gets close.
<enough rambling, it's late.>
---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 10 2004 @ 01:03 AM EST |
The biggest changes are SCO's responses to the patent claims. Above all else,
they are trying to have the patents declared invalid. The amount of effort they
put into this, compared to the "Denies in its entirety" reponse to infringement
per se, is illuminating.
Someone who is better than I at correlating
dates should compare the publication dates SCO mentions to the patent
application dates. Once filed, IBM could publish their work without compromising
patentability (under laws in effect at the time). Likewise, "prior art" means
just that--there is no obligation to include art developed after the
patent filing.
If history is any indicator, it is unlikely that SCO can
defeat one of IBM's patents--let alone all four. Patent claims are the ultimate
"IP" weapon, and SCO appears to recognize that fact. [ Reply to This | # ]
|
|
|
|
|