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| SCO's Reply Memorandum on their Motion to Bifurcate |
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Wednesday, April 21 2004 @ 03:00 PM EDT
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No rest for the weary. Here is SCO's Reply Memorandum in Support of Its Motion for Separate Trials. I haven't read it yet myself, but I didn't want you to have to wait.
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| Authored by: jbeadle on Wednesday, April 21 2004 @ 03:06 PM EDT |
Thanks,
John
[ Reply to This | # ]
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| Authored by: tyche on Wednesday, April 21 2004 @ 03:20 PM EDT |
There something that I notice right off the bat, looking only at the
"surface" of this document:
SCO is actually trying to speed up the trial process. I would have thought that
they would have tried to extend the discovery time and keep the 2 elements
together. This would have dragged it out longer.
Another thing that I noticed is how well this is written. That makes me wonder
what the spin is.
Craig
Tyche
---
"The greatest enemy of knowledge is not ignorance, it is the illusion of
knowledge."
Stephen Hawking[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 21 2004 @ 03:23 PM EDT |
| No 138 can be found here [ Reply to This | # ]
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| Authored by: the_flatlander on Wednesday, April 21 2004 @ 03:24 PM EDT |
Wow. That is great document.
First, the SCOundrels acted like IBM wasn't suing them, now they act surprised.
They actually reference IBM's four (4) patent claims. Seemingly they haven't
yet noticed that IBM dropped one.
LOL What a bunch of tra-la-la-goon-de-aies.
They also note that IBM argues it will obtain a summary judgement. They do not
deny that likelyhood.
The Flatlander
IANAL, but they seem to be just going through the motions here, as it were,
without making a real argument.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 21 2004 @ 03:27 PM EDT |
I'm confused -
Sco has yet to see a single document from IBM in response to SCO's discovery
supporting its patent claims, so SCO is hardly in a position to initiate the
required patent depositions, or even prepare for them
- haven't they used this argument over and over again about their copyright?
(IBM hasn't shown us what code is infringing, so we can't tell the court that)
and it didn't really work for them last time... or have I misunderstood this?[ Reply to This | # ]
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| Authored by: grubber on Wednesday, April 21 2004 @ 03:28 PM EDT |
It looks like SCO is trying to do what Novell did to them, namely point out the
things the other side didn't address.
I'm not too impressed by this document. IBM raised some good issues and did just
say "let's wait and see." SCO hasn't explained why waiting a bit
longer will hurt anything. IBM did well explaining why there's no reason to do
anything just yet.
And their claim that they haven't got any discovery from IBM is stupid because
IBM DOESNT HAVE TO DO DISCOVERY YET! IBM's got another week to pony over the
info and it serves their interest to wait. SCO just can't get over the fact that
they have to go first and can't keep dragging their feet....[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 21 2004 @ 03:41 PM EDT |
I like the part about resolving the "40 patents claims they -IMB-
raise"[ Reply to This | # ]
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| Authored by: Greebo on Wednesday, April 21 2004 @ 03:46 PM EDT |
| umm, i'm confused.
IANAL, but this part of the document has me
baffled...
IBM's remaining patent counterclaims alone could require as
many as 65 additional depositions to resolve the 40 patents claims they
raise.
40 Patents? When did that happen, or is this yet another
wonderful SCO typo?
Last i heard it was 4 patent counter claims, and IBM
had dropped one of those - or have i just completely mis-read something
here?
Greebo ---
-----------------------------------------
Recent Linux Convert and Scared Cat Owner [ Reply to This | # ]
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| Authored by: GLJason on Wednesday, April 21 2004 @ 03:50 PM EDT |
How does SCO turn IBM saying one thing into something completely different? IBM
said the patent claims weren't that complicated and would be easy to resolve.
They said:
Moreover, the patent claims are simply not as unrelated
to the non-patent claims as SCO contends; nor are they likely to be as unwieldly
to try as SCO suggests. IBM alleges patent infringement with respect to the
very products from which SCO alleges that IBM has misappropriated code (i.e.,
Unixware) (compare SCO's Counts 1-4, with IBM's Counterclaims
11-12),...
SCO says:
And in those two sentences,
IBM admits that the counterclaims are unrelated and
unwieldly, claiming only (without showing) that they are not
"as unrelated" and "as unwieldly" as SCO has shown in its
motion.
IBM points out that they bear the burden of proof since
they brought the patent claims, and it shouldn't require extending discovery at
all, let alone 18 months as SCO contends. They will also explain exactly
why the patent claims shouldn't take long when they reply to SCO's motion to
extend the dates. [ Reply to This | # ]
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- Twisting words - Authored by: Anonymous on Wednesday, April 21 2004 @ 07:20 PM EDT
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| Authored by: Anonymous on Wednesday, April 21 2004 @ 04:01 PM EDT |
SCO makes an awful big deal about IBM saying their claims are "not as
(unwieldy|unrelated)" as SCO claims, saying this implies they are in fact
unwieldy|unrelated, just not so much. This is childish misrepresentation of
IBM's casual understatements.
However, SCO does have some valid points at least regarding the burden of
depositions, and patent-specific hearings. These could at least be addressed
partly by lifting the limit on the number of depositions allowed, assuming that
is possible.
Personally, I'm not a fan of IBM's use of patents in this case, but IANAIBML.
[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Wednesday, April 21 2004 @ 04:11 PM EDT |
In my limited experiance and IANAL, Judges hate to rule on anything before the
facts are all before them. They hate to hand anything over to another judge and
the are not as concerned about delay and economy and they like to say.
I think the judge is very likely to defer ruling on the motion and allow
discovery to proceed to clarify the issues. After all SCOG has seperate council
for the patent matters and the judges are usually not too concerned about their
collegues at the bar running up large fees.[ Reply to This | # ]
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| Authored by: Xenographic on Wednesday, April 21 2004 @ 04:23 PM EDT |
Ironically, their best arguement for separating the claims is SCO's own
sluggishness at responding to discovery.
Wonder if the court will buy that one? Heh :][ Reply to This | # ]
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| Authored by: kberrien on Wednesday, April 21 2004 @ 04:24 PM EDT |
With this motion, SCO is out of money...
Just kidding, but we could be getting close eh!
Can we have anymore stories in a day?[ Reply to This | # ]
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| Authored by: tintak on Wednesday, April 21 2004 @ 04:37 PM EDT |
Interesting article giving M$'s take on Linux.
http://news.com.com/2100-7344_3-5196651.html
I liked this statement.
"The thing I like is that Microsoft does its best work and is most
innovative when it has competition, so bring it on," Tipp said.
Was he talking about litigation;^)
---
'it is literally impossible' for SCO to itself provide
direct proof' Mark J. Heise 02/06/04[ Reply to This | # ]
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| Authored by: Tim Ransom on Wednesday, April 21 2004 @ 04:41 PM EDT |
Brent O. Hatch (5715)
HATCH, JAMES & DODGE
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
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 SCO'S REPLY MEMORANDUM IN SUPPORT
OF ITS MOTION FOR SPERATE TRIALS
Case No. 2;03CV0294DAK
Judge Dale
A. Kimball
Magistrate Judge Brooke C. Wells
End Page 1
IBM
acknowledges that this court "has considerable power to decide how a trial
should be conducted and broad discretion to decide whether and how to seperate
claims and issues." IBM's Response, p. 3. IBM also concedes that this case is
very complex, and that "it may make sense ultimately for the Court to
adjucate the claims and issues presented in more than one trial." IBMResponse,
pp. 3, 4. (emphasis added). Most importantly, IBM scarcely denies that its
patent counterclaims have nothing to do with this case, devoting a mere
two sentences of its Response Brief to this critical issue. And in those two
sentences, IBM admits that the counterclaims are unrelated and
unwieldy, claiming only (without showing) that they are not "as
unrelated" and "as unwieldy" as SCO has shown in its motion. Moreover,
the many factual points SCO demonstrated in its motion proving that seperate
trials are warranted are unrefuted in IBM's Response Brief.
With the
essential facts undisputed, IBM's sole argument in opposition to SCO's motion
for seperate trials is that this Court should defer decision of this issue until
a later date - indeed, IBM suggests that the motion be deinied without
prejudice. IBM's justification for deferring ruling on an issue that requires
immediate attention is two fold. First, IBM hypothesizes that "most (if not all)
of the claims and issues in the suit can and should be resolved by summary
judgement...." IBM Response, p. 3. Second, IBM believes that the discovery and
Markman hearings required for the three remaining patent claims(1) can
begin and end in approximately 3 months. IBM Response, p. 6. Neither proposition
justifies combining the pre-trial and trial of the admittedly unrelated patent
claims with the remainder of the litigation.
In contrast to IBM's "wait
and see" suggestion, SCO hsa already identified multiple grounds for seperating
discovery and trial of the patent counterclaims from other claims in
this
(1) After rquesting that SCO further identify IBM's inequitable
conduct before the Patent and Trademark Office, IBM voluntarily dismissed one of
its four patent counterclaims.
End Page 2
case. SCO's motion
detailed the ways it would be prejudiced if forced to litigate the patent
counterclaims injected by IBM into the case at the same time as the non-patent
issues. Examples of thei prejudice include the fact that SCO and IBM currently
have only approximately 3 months remaining within which to complete non-expert
discovery and are allocated 40 depositions each. IBM's remaining patent
counterclaims alone could require as many as 65 additional depositions to
resolve the 40 patents claims they raise. The resolution of these unrelated
patent counterclaims could delay the litigation by at least 18 months, as the
court must hold Markham hearings and resolve the countless technical
issues such claims represent. Worse, SCO has yet to see a single document from
IBM in response to SCO's discovery supporting its patent claims, so SCO is
hardly in a position to initiate the required patent depositions or even prepare
for them. If the patent counterclaims are not seperated so that the remainder of
the case can proceed to trial, these admittedly unrelated counterclaims will
impede the orderly preperation of this case, including doubling the
already considerable pre-trial and trial time needed to bring this matter to
resolution. IBM, on the other hand, does not claim that it will be prejudiced by
seperating the patent and non-patent issues.
Ignoring the impact on SCO
of having to conduct discovery of both the patent and non-patent claims
at the same time, IBM instead relies on cases where courts exercised their
discretion to defer ruling on motions to seperate trials. None of those cases
supports the idea that a district court must or should postpone such a decision
until after discovery. Moreover, not a single one of IBM's cases involved
patents, while numerous cases cited in SCO's motion specifically related to
seperating patent claims. IBM has not endeavored to distinguish any of these
cases, all of which fully support seperating the unrelated patent counterclaims
from the remainder of the litigation.
End Page 3
For the
foregoing reasons, SCO respectfully requests that the Court enter an order
seperating for discovery and trial IBM's four patent counterclaims from the
other claims in the case.
DATED this 19th day of April,
2004.
Sorry if I duplicated soneone's work - just felt like doing
it
---
Thanks again,
[ Reply to This | # ]
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| Authored by: Christian on Wednesday, April 21 2004 @ 05:11 PM EDT |
| SCOG is arguing that the patent claims are completely independent of the other
claims. IBM says they are not, because they involve the same software.
IBM
does not go into depth on the reason this matters. I wonder if this is a "you
got your chocolate in my peanut butter!" "No, you got your peanut butter on my
chocolate!"
What I mean is that if a judge and jury were to (hypothetically)
find that IBM violated copyright on SCOG software that violated IBM patents, the
ruling will be crafted to balance out the two claims (like the AT&T/BSD
case, though that was settled so there was no judgement). If the two pieces were
handled separately, each judgement could involve exchanging a big pile of
money.
Perhaps IBM is implying that it is silly to have the courts
(hypothetically) award SCOG a billion dollars one week just so SCOG can give it
back to IBM the next week. Splitting the cases also eliminates the leverage the
could be used to get a settlement.
This only makes sense if IBM's lawyers
think that SCOG has a chance of winning something, which I doubt. (Please note
the use of the word "hypothetically", as I can't imagine SCOG winning on any of
their claims.) [ Reply to This | # ]
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| Authored by: Chris Lingard on Wednesday, April 21 2004 @ 05:26 PM EDT |
After reading this I am annoyed, to some extent it is like a
discussion group where you score points, by picking on your
opponents words.
Who cares if there is one trial or twenty trials
Discovery of the code was last Sunday, (18 April), so the
code, last seen in Germany, should have been in court
sometime on Monday.
When will some evidence be shown? How much longer will they
allow SCO to carry on?
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 21 2004 @ 05:29 PM EDT |
| EOF [ Reply to This | # ]
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