|
|
| SCO's Motion to Bifurcate - as Text |
 |
|
Tuesday, March 30 2004 @ 01:11 AM EST
|
Here, thanks to an anonymous commenter, is the text of SCO's Motion to Bifurcate. PDF here.
********************************************
Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone,
fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro
hac vice)
David K. Markarian (admitted pro hac vice)
BOIES,
SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff
__________________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH,
CENTRAL DIVISION ___________________________________________
THE SCO GROUP, INC.,
Plaintiff,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant. ___________________________________
PLAINTIFF'S MOTION FOR
SEPARATE TRIALS
Case No. 2:03CV0294DAK
Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells
____________________________________
Plaintiff The SCO Group, Inc. ("SCO") hereby moves this Court for an
Order separating the trial of Defendant International Business Machine
Corporation's ("IBM") patent counterclaims (counterclaims nine through
twelve) from the trial of the primary claims and counterclaims in this
case. The grounds for this Motion are as follows:
SCO and IBM have asserted various claims arising from the same nucleus
of operative facts and the central issue in this case of whether IBM's
disclosure of AIX and Dynix/ptx through its involvement in Linux
violated the licensing agreements IBM entered into with several third
parties.
IBM has interposed four unrelated patent counterclaims into this case.
The discrete issues arising from the breach of the license agreements
should not be tried before a jury together with IBM's unrelated patent
infringement counterclaims where the only common thread between the
licensing agreements claims and the patent counterclaims is the identity
of the parties. To assist in juror comprehension and reduce both
prejudice and delay IBM's four patent counterclaims should be tried
separately and should proceed on a separate discovery schedule.
This Motion is supported by a Memorandum in Support filed concurrently
herewith.
DATED this 24th day of March, 2004.
Respectfully submitted,
BY: ________signature___________
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J.
Heise
David K. Markarian
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc. hereby certifies that a true and correct
copy of PLAINTIFF'S MOTION FOR SEPARATE TRAILS was served on
Defendant International Business Machines Corporation on this ____ day
of March, 2004, by U.S. Mail, first class, postage prepaid, on their
counsel of record as indicated below:
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer
L.L.P.
[address]
Evan R. Chester, Esq.
David R. Marriott, Esq.
Cravath, Swaine &
Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
________signature______________
|
|
|
|
| Authored by: Anonymous on Tuesday, March 30 2004 @ 01:48 AM EST |
| any? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 01:51 AM EST |
| Let's not confuse the jury by exposing our hypocrisy. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 02:20 AM EST |
Hmm, that's all well and good that both SCO and IBM have found some more toys to
play with, but what is the impact of changing the basics on which this case is
fought (by amendment)?
As far as I can see (IANAL etc), any change from either side will allow more and
more delay as the changes (quite reasonably) would need to be examined,
principally supporting the fundamentals of this whole sham: spreading Linux FUD
and keeping it right up there where the CEO/CIO levels can read it. As long as
the esteemed analysts don't get the point (or are kept in advertising funds and
other methods to keep them wholly without bias ;-) it WILL have a stiflign
effect on Linux deployment.
It's there. That nagging doubt that maybe, just maybe, the company is better
off by paying lots of money and having most of its bandwidth and IT resources
taken up by virus updates, security patches, license management and fear in
general that the damn thing will fall over again (yes, it does so less, but I'm
truly amazed at how you can train people in accepting the unacceptable).
Time is only on 'our' side from a SCO burn rate point of view (and I'm sure the
main players have already cushioned themselves for that) - the delay allows MS
to get closer to the time when they can put their warped interpretation of what
Trusted Computing stands for on the market (DRM, where 'R' stands for 'Rights MS
would like to appropriate' (sorry, I don't buy the benevolence bit). They need
to in order to survive, so they will stop at nothing to make DRM happen - with
the legal system kindly helping to freeze any action against them until it's too
late.
SCO is IMO just a FUD middleman - and time is what they need.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 02:39 AM EST |
PJ, could you please make more comments on posted storys like the "Novell's
Reply Memorandum in Support of Motion to Dismiss - Annotated" story? For a
non-lawyer its really great with you explaning stuff. I cant understand the
lawyer language...but I understan you!!!
Thanks for all the work you do.
:-)
[ Reply to This | # ]
|
| |
| Authored by: Peter Smith on Tuesday, March 30 2004 @ 03:00 AM EST |
Is there some limit on the length of comments than can be submitted?
I find I can submit short comments but anything a bit longer and my browser just
sits and waits.
I have tried Opera 7.23, Mozilla Firefox 0.8 and IE 6 (ughh) but to no avail.[ Reply to This | # ]
|
| |
| Authored by: DBLR on Tuesday, March 30 2004 @ 03:06 AM EST |
| Why has or did SCOG wait six months to file this motion? My self I can not
believe it took them high paid lawyers this long to think of this or are the
lawyers they have that stupid to not think about this sooner? Could it be this
is just another way to DELAY?
Charles
---
Some Lawyers are just
like bananas, they are all crooked, yellow and slimy. [ Reply to This | # ]
|
| |
| Authored by: markus on Tuesday, March 30 2004 @ 03:36 AM EST |
Separating the patent issue makes sense to me to some extent. All other
counterclaims are connected to the original SCO lawsuit. The patent infringment
claims in the IBM counterclaim have nothing to do with it. They are just thrown
in as trump-aces to get some worst case bargaining
power.
Markus ---
Markus Baertschi, Switzerland [ Reply to This | # ]
|
| |
| Authored by: red_guy on Tuesday, March 30 2004 @ 03:45 AM EST |
but I have to agree with SCO, for once.
In this sue/countersue game, IBM's patent claims are IBM's way of punishing SCO
for their frivolous claims.
However justified, this has nothing to do with the central theme of the case.
Apart from showing the jury that SCO might be IP thieves themselves, what's the
importance of these patent claims?
Or does this lead to SCO not having to show their code?
At least SCO didn't try to separate their totally bogus claims from their less
bogus claims. Maybe because that distinction isn't all that clear.[ Reply to This | # ]
|
| |
| Authored by: JohnPettigrew on Tuesday, March 30 2004 @ 04:26 AM EST |
the central issue in this case of whether IBM's disclosure of AIX
and Dynix/ptx through its involvement in Linux violated the licensing agreements
IBM entered into with several third parties
1) "the central issue"
- if this is as in the original, this is a declaration that the whole case
centres only on the nature and extent of the contracts. It is not a copyright
suit.
2) "several third parties" - if there are several injured parties here
(who licensed 'IP' to IBM that was used in AIX), why are there no supporting
plaintiffs from these third parties? Could it be that they don't agree with
SCO's reading of contract law? Regardless of this, can SCO plead on behalf of
other parties without specifying who they are and that they have permission to
act on their behalf?[ Reply to This | # ]
|
| |
| Authored by: NZheretic on Tuesday, March 30 2004 @ 04:30 AM EST |
| So that the SCO Group is effectively saying is "The fact that SCO has used
IBM's intellectual property in SCO's products is immaterial to the claims of SCO
that IBM included SCO's intellectual property in Linux"
One word:
Estoppel
Estoppel. A
claimant may be prevented from exercising a right due to its own acts. For
instance, the claimant may have done something that induced the defendant to do
the alleged wrong. The defendant may then use that as a defense. (Illinois
Supreme Court, April, 2001: Geddes v. Mill Creek Country Club) "The doctrine of
estoppel has three essential elements -- a position of authority assumed by the
defendant under color of right; submission to and reliance upon that assumption
by the plaintiff; and injury suffered by the plaintiff as a proximate
consequence of such submission and reliance. Belt Auto. Indem. Ass'n v. Ensley
Transfer & Supply Co., 211 Ala. 84, 99 So. 787 (1924)" Alabama Supreme
Court, April, 2001:
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 04:44 AM EST |
From what I've seen so far this does make sense;
SCO wants the original complaint tried in Utah,
If the whole case is kept together, the judge might be more inclined to deny
thier request and keep things in the Federal Court. [ Reply to This | # ]
|
| |
| Authored by: drh on Tuesday, March 30 2004 @ 06:15 AM EST |
This looks like more than a delay tactic by SCOX, it also
looks like a nifty legal manouvre.
I don't think this motion can stop the discovery process
already ordered by the court for both parties. If the
motion to bifurcate (what a word) is granted, then the
delay in the case allows SCOX more time to fish through
the materials while the court process is sorted out. When
the first case comes back into session, SCOX will have all
kinds of new comments for us to peruse, and they will be
wild and entertaining I am sure.
By splitting the patent infringement part off, SCOX can
now separate out the evidence IBM can use. They can argue
that anything related to the patent case cannot be entered
into the main case. I don't know how successful this will
be, but they can argue that. While not making the main
case look good, it makes it look less bad.
If SCOX gets in a bind, they can play one case off the
other saying that a decision has to be made in the patent
case before a relevant decision can be allowed in the main
case, or vice versa. Granted another delaying tactic, and
granted perhaps not successful, but it could be another
argument.
Bifurcating the patent infringement issues also has an
interesting angle, IBM technically becomes the plaintiff
as the claims of infringement are theirs, even though they
will probably be listed as the defendants because of the
main case.
I would have thought that IBM would not want the case to
split, the patent issues are somewhat related. If nothing
else, IBM is claiming that SCOX is the pot calling the
kettle black. Also, IBM's ownership of certain
technologies is key to the point that SCOX makes about
derivative works, and that ownership includes copyrights,
patents, trade secrets, and so forth. Besides, when IBM
made its counter-claim, I believe they are allowed to
include anything that could possibly relate to the case or
their defence.
---
Just another day...[ Reply to This | # ]
|
| |
| Authored by: Wol on Tuesday, March 30 2004 @ 06:47 AM EST |
Dunno if it's possible ...
Could IBM, in its reply to the motion for bifurcation, simply say "here's
the proof of patent violation, please bifurcate by issuing summary
judgement"?
Okay, you then have all the hassle of "is the patent valid" etc etc,
but if I were IBM I'd probably be quite happy with a bifurcated suit that starts
off with a ruling that SCO is in breach of my patents, and all the court is
considering is whether the patents are valid and if so, what to do about it :-)
Cheers,
Wol[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 08:51 AM EST |
Business
Week has a series of new articles on Linux and its explosive growth
in all
kinds of places. One of the articles,
Clouds Still Swirl Around SCO, speaks directly to our favorite
issue.
Will the threat of SCO litigation slow down Linux adoption?
Not
likely. The lawsuits have been in the air for a year now, yet sales of
Linux-based servers continue to pick up steam. In the fourth quarter of 2003,
they grew 51% over the same quarter last year, according to Gartner. In
comparison, sales of Windows servers were up 15.9%, and Unix servers dropped 4%.
In the last two years, Linux' share of the server market has grown from 2.7% to
7%. With big computer makers like IBM, Hewlett-Packard (HP ), Dell (DELL ), and
now even Sun Microsystems (SUNW ) selling Linux boxes, there's little reason to
think Linux will lose its momentum.
Also, signs are that the
business world is understanding the issues.
Does SCO even own what it
says it owns?
Like everything else in this nasty dispute, the basic notion of
what SCO does and does not own is in question. SCO says it owns the original
Unix technology developed at Bell Labs in the late 1960s, having bought it from
Novell, a fellow Utah software maker. Novell, however, says it sold only the old
Unix business to SCO and held on to the ownership of underlying intellectual
property. SCO has filed suit against Novell, claiming it's interfering with
SCO's business. If SCO can't win that suit, it'll be awfully hard to pursue any
other cases.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 09:27 AM EST |
SCO seem to be pretty hopeless at conducting a law suit.
However we know they are pretty good at corporation shenigans (e..g Bay Star,
the complicated Caldera merger things which somehow ended up with all the DR-DOS
lawsuit money going to Canopy).
IMHO I predict SCO want to bifurcate their company too, into two corporations
(these are my names):
"SCO-U": The unprofitable Unixware and OpenServer business
"SCO-L": The Linux licensing business, Sys V, also unprofitable, but
they seem to think they can make money from it.
In SCO's **plan**, then:
- "SCO-U" - eventually to go bankrupt. Oh dear, never mind. This SCO
would be the one fighting the patent counterclaim
- "SCO-L" - this is the one that sues IBM for breaching the AIX
license. In defense to counterclaims regarding false claims about AIX and
Linux, they might even say "Oh that wasn't us, that was SCO-U -- sue them
they are responsible."
If you look at what Darl said last year, he said "UNIXWARE" code was
in Linux (okay they did also say System V, but not as much).... which suggests
they might try to blame a putative "SCO-U" spin-off for these
unsupported in discovery (and therefore false) claims.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 09:41 AM EST |
| Please put new URL's in this thread. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 10:08 AM EST |
OT
Are there any legal grounds that would support a class action lawsuit brought by
various individual end users of the Linux OS, against SCO for -not- trying to
work with the community to resolve the IP problem?
Not that that's the real underlying reason they are suing anymore, but it just
got me to thinking. All the intitial contractual stuff, and most -reasonable-
people, would try to work things like this out -before- they got to court.
So in a way, I feel like the end user has been shafted, not given a good break.
I mean, in another example, if I accidentally miss something on my tax return,
the IRS gives me a chance to fix it, before throwing me in jail.
With SCOs actions, it's like they wanted to throw me in jail first, and ask
questions later. As an individual, I don't think that's right, or reasonable.
So would there be any ground for a class action? And would any lawyer in their
right mind take it?
Just a thought.[ Reply to This | # ]
|
| |
| Authored by: mnuttall on Tuesday, March 30 2004 @ 11:20 AM EST |
See document 123-1 at http://www.utd.uscour
ts.gov/documents/ibm_hist.html. IBM seeks to,
(1) add
claims for declaration of noninfringement of copyright; (2) add additional
allegations to its present claim for copyright infringement; (3) based on its
continuing investigations, drop one of its claims of patent infringment; and (4)
otherwise update its factual allegations.
IBM has been granted
leave to file these amended pleadings, though I don't think we yet know when to
expect them by.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 11:34 AM EST |
Why the "licensing agreements IBM entered into with
several third parties"? Who are the 3rd parties, and have
they been mentioned before?
Some stupid questions - when IBM bought Sequent, does the
contract that Sequent has/had with AT&T matter, or the
contract that IBM has/had with AT&T? In other words, can
SCO be claiming breach of contract based on the Sequent
contracts/licenses instead of the IBM/AT&T one? [ Reply to This | # ]
|
| |
| Authored by: maroberts on Tuesday, March 30 2004 @ 11:55 AM EST |
SCO has been blurring the lines over which exactly which IP is involved
(trademarks, copyright or patents), so i see little reason for the judge to
bifurcate, as the plaintiff was the one to throw IP into a big melting pot in
the first place.
As other posters have said, SCO did get something out of Monterey too, an
opportunity to liase with the leading software and hardware developer. Even the
fact Monterey came to naught leaves me surprised that SCO did not walk away with
something which they could apply to their own products.
[ Reply to This | # ]
|
| |
| Authored by: frk3 on Tuesday, March 30 2004 @ 12:39 PM EST |
This gem from an SCO press release today:
LINDON, Utah, March 30
/PRNewswire-FirstCall/ -- The SCO Group, Inc. (Nasdaq: SCOX - News), the
owner of the UNIX® operating system (emphasis mine) and a leading
provider of UNIX-based solutions, today announced the United Kingdom's Ministry
of Defence (MoD) has dramatically reduced user inquiries and saved hundreds of
personnel hours by introducing a UNIX® authentication and identity-management
solution from SCO. Designed to reduce the administrative burdens of managing a
mixed Windows® and UNIX environment, Vintela Authentication from SCO has saved
nearly 800 personnel hours in the first year alone, according to the
MoD.
Could they be sued for false advertising for that claim, or something?
You, I and a host of others know that that statement is not even close to the
truth. [ Reply to This | # ]
|
| |
| Authored by: Paul Shirley on Tuesday, March 30 2004 @ 12:44 PM EST |
If the patent counterclaims are bifurcated it seems to me SCOG are in a good
position to walk away from their case against IBM. If the real aim has been
stock manipulation and the spreading of FUD for 3rd parties they desperately
need to avoid getting to court and losing on the merits.
So is there any possibility a well chosen, sucessful bifurcation would allow
abandonment by SCOG?[ Reply to This | # ]
|
| |
| Authored by: dwheeler on Tuesday, March 30 2004 @ 12:58 PM EST |
IANAL. However, it appears to me that
IBM may want to reject this request.
SCO
wants to claim that anything IBM wrote
when modifying Unix automatically belongs
totally to SCO.
But the IBM patents suggest that, in fact,
SCO had no rights to
the software IBM wrote.
Perhaps the SCO/IBM contract gave SCO rights to
IBM's
patents like this, but I very much doubt it.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 01:06 PM EST |
ok first they used that whacky "slander of title" thing.
now its "Motion to Bifurcate"...
so what other strange and bizarre legal motions can SCO come up with?
IANAL and I'm sure there are dozens.
I think this speaks volumes about their legal abilities. Instead of coming right
out with the obvious things they use utterly bizarre tactics.
I mean, why not "breach of contract"? oops, well because they don't
have a stance there.
pump and dump is all about delay, delay, delay. and weird and wonderful legal
maneuvers actually look good to investors (they don't understand em, so they
must be good!)
oy vey![ Reply to This | # ]
|
| |
| Authored by: PSaltyDS on Tuesday, March 30 2004 @ 01:18 PM EST |
I came across a news item this morning from SCOX: The Ministry
of Defence Protects Its Users With Vintela authentication From SCO. It is
full of slimey SCO-speak about them being "...the owner of the UNIX(R) operating
system and a leading provider of UNIX-based solutions...", but it still shocked
me. Can the UK Army be so ill-informed as to be buying SCO products and using
Unixware as though this company was still going to be here to support
it?
Can we get a check on it from that side of the
water?
"Any technology distinguishable from magic is insuficiently
advanced." Geek's Corolary to Clarke's Law
P.S. Sorry for the ugly
link, it's from a small newspaper's website.
[ Reply to This | # ]
|
| |
| Authored by: salimf on Tuesday, March 30 2004 @ 01:25 PM EST |
SCO Helps The
Ministry Of Defence With User Identity Management Solution
How do
you feel, knowing that essential Army Air-Corps systems have been built by a
software company that could be litigated out of business within the next year or
so? It is not confidence inspiring to know that our national defences are in the
hands of an untrustworthy company. Who will maintain this system when SCO goes
bust, and their partners defect?
If you live in the UK, you might want
to bring this to the attention of your local
MP. ---
---
Sal [ Reply to This | # ]
|
| |
| Authored by: DBLR on Tuesday, March 30 2004 @ 01:31 PM EST |
Any body know why it is taking so long to get this info posted about these two
items or is it a secret?
119-1 Acceptance of service of Subpoena Duces Tecum as to Intl Bus Mach Inc
122-1 Notice of service of Subpoenas Duces Tecum by Intl Bus Mach Inc
Charles
---
Some Lawyers are just like bananas, they are all crooked, yellow and slimy.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, March 30 2004 @ 02:32 PM EST |
I've also asked this question. So again, what might happen if a good number of
individual kernel developers were to tell TSG that TSG was no longer allowed to
distribute the developer's works due to GPL violations? It could be quite
interesting if, say, the scheduler had to be removed. Or maybe the scsi
subsystem.
z!
[ Reply to This | # ]
|
|
|
|
|
