And here is SCO's Objections to IBM's Rule 30(b)(6) Notice of Deposition ("The Compression Notice") [PDF] as text, thanks to AntiFUD. It is almost identical to their objections to the Click-Wrap notice. If you missed that, with the explanation about Rule 30(b)(6), it's here. I can't write about patents without telling you about this cease and desist letter from a company claiming to have a patent on playing computer solitaire. They claim they have several foreign patents on this as well. I hope the EU is watching. I know, I know. Some there will tell me that the EU directive doesn't make software patents legal. The pro-directives will claim they are actually opposed to patents on
software.They just want ... how does that version go? Computer-implemented inventions. That's all they are asking for. Sound familiar? Maybe a bit like how the US fell into the patent pit it now finds itself in? And how did we end up here? Note this answer by Chilling Effects Clearinghouse to the question, if abstract ideas and mental processes can't be patented, how can software based on a mathematical algorithm receive patent protection?
Answer: For years, software was considered outside the scope of patent protection to the extent based on mathematical algorithms, as mathematics is the basic working tool of contemporary science and technology and algorithms can be natural laws. In 1981, the Supreme Court held that software-related inventions are not per se to be excluded from patent protection simply because the process of performing the program's function may involve underlying mathematical algorithms. Software uses a non-physical process by operating electronically through the utilization of a mathematical equation (algorithm) to control the output of the computer program. Mathematical algorithms have a functional application in computer programs, and thus can be protected under the Patent Act. To use an example from physics, electricity was not patentable, but the way in which electricity transmits information may be patentable. So when you hear that Europe's patent directive they keep trying to ram down everyone's throat isn't *really* going to result in software patents, remember US history.
**********************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Frederick S. Frei (admitted pro hac vice)
John K. Harrop (admitted pro hac vice)
ANDREWS KURTH LLP
[address, phone, fax]
Attorneys for The SCO Group, Inc.
__________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
__________________________
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
____________________________
OBJECTIONS TO INTERNATIONAL
BUSINESS MACHINE
CORPORATION'S
RULE 30 (b)(6)
NOTICE OF DEPOSITION
("THE
COMPRESSION NOTICE")
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
_____________________________
In response to Defendant/Counterclaim-Plaintiff International Business Machine
Corporation's ("IBM") Notice of 30(b)(6) deposition, served by U.S. Mail on January 10, 2005,
and by facsimile on January 11, 2005 ("the Compression Notice"), Plaintiff/Counterclaim-Defendant
The SCO Group, Inc. ("SCO") submits the following objections.
1
Notwithstanding its General and Specific Objections set forth herein, SCO will attempt to
identify witnesses knowledgeable concerning the topics set forth in IBM's Notice. SCO will
confer with patent counsel for IBM with respect to the designated topics and to agree on dates
and locations for these depositions.
GENERAL OBJECTIONS
1. SCO objects generally to the Compression Notice as overly broad and unduly
burdensome. The Compression Notice was served simultaneously with two other Rule 30(b)(6)
deposition notices. Together, these three notices listed fifty-one (51) topics. These notices are
overbroad and unduly burdensome for the further reason that IBM provided SCO with only two
weeks' notice to prepare for these depositions.
2. SCO objects generally to the Compression Notice as unduly burdensome because
IBM has scheduled this deposition to take place in the offices of its local counsel in Salt Lake
City, Utah. Many of the individuals likely to have knowledge of the topics listed in IBM's
Compression Notice reside in the Eastern United States, as do SCO's counsel and IBM's counsel.
It would be far less burdensome for these depositions to take place at or near SCO's offices in
New Jersey.
3. SCO objects generally to the Compression Notice as unduly burdensome because
IBM gave SCO only two weeks to prepare for each of the topics listed and further reduced the
time available to prepare by not serving SCO's patent counsel, who have already entered an
appearance in this case, thereby further prejudicing SCO and increasing the burden imposed by
IBM's Compression Notice.
2
4. SCO objects to each Topic within the Compression Notice insofar as it seeks
disclosure of information that will become known to SCO only after the completion of discovery
or is otherwise premature, particularly because IBM has not yet provided specific constructions
of its asserted claims, nor the support for such claim constructions, nor has IBM stated how
SCO's accused products allegedly infringe the patents-in-suit.
5. SCO objects to each Topic within the Compression Notice insofar as it causes
annoyance, oppression, undue burden, or expense to SCO, particularly because IBM has not yet
provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-suit.
6. SCO objects to each Topic within the Compression Notice insofar as it seeks
information not reasonably calculated to lead to the discovery of admissible evidence, and/or
which exceeds the scope of discovery permitted by the Federal Rules of Civil Procedure.
7. SCO objects to each Topic within the Compression Notice insofar as it purports to
seek information or documents protected from discovery by the attorney-client privilege or any
other applicable privilege or immunity.
8. SCO objects to each Topic within the Compression Notice insofar as it seeks work
product, mental impressions, conclusions, opinions, or legal theories of SCO's counsel, experts,
and/or consultants developed in connection with or in anticipation of this or other litigation or
other business transactions not related to this litigation.
9. SCO objects to IBM's definition of "SCO Product" or "SCO Products" within the
Compression Notice as "any and all products that are or were created by, for, or on behalf of, or
3
acquired by SCO, or any predecessor in interest thereof (whether or not for a fee), from six years
prior to August 6, 2003 to the present date" because it renders the topics overly broad and unduly
burdensome. Moreover, SCO objects to any Topic within the Compression Notice that seeks
SCO's response on behalf of any entity not wholly owned by SCO or with regard to a product
not sold, manufactured, or used by SCO.
10. SCO objects to IBM's definition of "SCO Product" or "SCO Products"
within the
Compression Notice wherein it "refers to any and all products that are
or were created by, for, or
on behalf of, or acquired by SCO, or any predecessor in interest
thereof (whether or not for a
fee), from six years prior to August 6, 2003 to the present date" on
the grounds that it seeks "any and all products" not only created by
SCO but also relating in any way to SCO (including simply acquired by
SCO) or any predecessor, and is therefore overly broad and unduly
burdensome.
11. SCO objects generally to the Compression Notice as premature because SCO has
outstanding discovery asking IBM to construe its asserted claims which has not been fully
answered.
12. SCO objects generally to the definition of "Compression Feature"
within the Compression Notice as overly broad and unduly burdensome
to the extent that it includes products other than those which IBM has accused of infringement.
13. SCO further objects to the term "Compression Products" within the Compression
Notice as overly broad and unduly burdensome to the extent that it includes products other than
those which IBM has accused of infringement.
14. SCO incorporate its General Objections with regard to each topic as though fully set forth therein.
4
SPECIFIC OBJECTIONS
TOPIC NO. 1
1. SCO objects specifically to Topic No. 1 of the Compression Notice on the
grounds that the discovery tool IBM has chosen is the most expensive and unduly burdensome
tool available considering the type of information that is being sought and that interrogatories are
the appropriate tool for this type of "identification" information.
2. SCO further objects specifically to Topic No. 1 because, by seeking "each version
and release of each Compression Product," the topic is overbroad and unduly burdensome.
TOPIC NO. 2
3. SCO objects specifically to Topic No. 2 because it is overbroad and unduly
burdensome to the extent that it seeks information related to Compression Products to the extent
that term can be construed to include products other than those that IBM has accused of
infringing the patents-in-suit.
4. SCO further objects specifically to Topic No. 2 to the extent that it seeks
information that is just as burdensome for SCO to produce as it is for IBM to obtain. SCO has
previously produced the source code corresponding to each accused product. It is no more
burdensome for IBM to undertake the inquiry requested in Topic No. 2 than it would be for SCO
to do so.
5. SCO further objects specifically to Topic No. 2 on the grounds that the discovery
tool IBM has chosen is the most expensive and unduly burdensome tool available considering
the type of information that is being sought and that interrogatories are the appropriate tool for
this type of "identification" information.
5
TOPIC No. 3
6. SCO objects specifically to Topic No. 3 because it is overbroad and unduly
burdensome to the extent that it seeks information related to Compression Products to the extent
that term can be construed to include products other than those that IBM has accused of
infringing the patents-in-suit.
7. SCO further objects specifically to Topic No. 3 because, by seeking testimony
concerning "the function and operation of each Compression Feature within each Compression
Product," the topic is overly broad and unduly burdensome to the extent it seeks information
pertaining to products other than those IBM has accused of infringement.
TOPIC NO. 4
8. SCO objects specifically to Topic No. 4 because, by seeking "testing, evaluation,
analysis and debugging of each Compression Feature within each Compression Product," the
topic is overly broad and unduly burdensome to the extent it seeks information pertaining to
products other than those IBM has accused of infringement.
9. SCO further objects specifically to Topic No. 4 as premature because IBM has not
yet provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
10. SCO further objects specifically to Topic No, 4 as vague and ambiguous because
it does not describe what information concerning the "testing, evaluation, analysis, and
debugging of each Compression Product" it seeks.
6
TOPIC NO. 5
11. SCO objects specifically to Topic No. 5 because, by seeking "[u]se made by SCO
or SCO's knowledge of its customers' uses of any Compression Feature within each
Compression Product," the topic is overly broad and unduly burdensome to the extent it seeks
information pertaining to products other than those IBM has accused of infringement.
12. SCO further objects specifically to Topic No. 5 as premature because IBM has not
yet provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
13. SCO further objects specifically to Topic No. 5 as vague and ambiguous because
it does not describe what information concerning "[u]se made by SCO or SCO's knowledge of
its customers' uses of any Compression Feature within each Compression Product" it seeks.
TOPIC NO. 6
14. SCO further objects specifically to Topic No. 6 because, by seeking testimony
concerning "[t]raining, recommendations, suggestions, and instructions given to SCO, SCO's
distributors or customers, or any potential distributors or customers concerning the use,
configuration, intended use or intended configuration of each Compression Feature within each
Compression Product, including the training recommendations, suggestions and instructions
provided by any third party to SCO," the topic is overly broad and unduly burdensome to the
extent it seeks information pertaining to products other than those IBM has accused of
infringement.
7
15. SCO further objects specifically to Topic No. 6 as premature because IBM has not
yet provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
16. SCO objects specifically to Topic No. 6 as vague and ambiguous because
it does not describe what information concerning "[t]raining, recommendations, suggestions and
instructions given to SCO, SCO's distributors or customers, or any potential distributors or
customers concerning the use, configuration, intended use or intended configuration of each
Compression Feature within each Compression Product, including the training,
recommendations, suggestions and instructions provided by any third party to SCO" it seeks.
TOPIC NO. 7
17. SCO further objects specifically to Topic No. 7 because , by seeking "the use of any
Compression Feature in the manufacture, production, or packaging of any compressed product,"
the topic is overly broad and unduly burdensome to the extent it seeks information pertaining to
products other than those IBM has accused of infringement.
18. SCO further objects specifically to Topic No. 7 as premature because IBM has not
yet provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
19. SCO further objects specifically to Topic No. 7 as vague and ambiguous because
it does not describe what information concerning "the use of any Compression Feature in the
manufacture, production, or packaging of any compressed product" it seeks.
8
TOPIC NO. 8
20. SCO objects specifically to Topic No. 8 because, by seeking "[p]roposed or actual
design alternatives to each Compression Feature in any Compression product, including but not
limited to any alleged designs SCO would use as non-infringing alternatives to the current
version used in each compression product," the topic is overly broad and unduly burdensome to
the extent it seeks information pertaining to products other than those IBM has accused of
infringement.
21. SCO further objects specifically to Topic No. 8 as premature because IBM has not
yet provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
22. SCO further objects specifically to Topic No. 8 as vague and ambiguous because
it does not describe what information concerning "[p]roposed or actual design alternatives to
each Compression Feature in any Compression product, including but not limited to any alleged
designs SCO would use as non-infringing alternatives to the current version used in each
compression product" it seeks.
TOPIC NO. 9
23. SCO objects specifically to Topic No. 9 because, by seeking "the release history
of each Compression Feature in each Compression Product," the topic is overly broad and
unduly burdensome to the extent it seeks information pertaining to products other than those
IBM has accused of infringement.
9
24. SCO further objects specifically to Topic No. 9 as premature because IBM has not
yet provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
25. SCO further objects specifically to Topic No. 9 as vague and ambiguous because
it does not describe what information concerning "the release history of each Compression
Feature in each Compression Product" it seeks.
26. SCO objects specifically to Topic No. 9 on the grounds that the discovery tool
IBM has chosen is the most expensive and unduly burdensome tool available considering the
type of information that is being sought and that it requests for production of documents are the
appropriate tool for this type of "identification" information.
TOPIC NO. 10
27. SCO objects specifically to Topic No. 10 because, by seeking information related
to the "extent any Compression Feature within a Compression Product was purchased, acquired
or otherwise not originally developed by SCO, the identity of the original developer and all
persons who worked on the development, and the location of any documents regarding the
development of such Compression Feature," the topic is overly broad and unduly burdensome to
the extent it seeks information pertaining to products other than those IBM has accused of
infringement.
28. SCO further objects specifically to Topic No. 10 as premature because IBM has
not yet provided specific constructions of its asserted claíms, nor the support for such claim
10
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
29. SCO further objects specifically to Topic No. 10 on the grounds that the discovery
tool IBM has chosen is the most expensive and unduly burdensome tool available considering
the type of information that is being sought and that interrogatories or requests for production of
documents are the appropriate tool for this type of "identification" information.
TOPIC NO. 11
30. SCO objects specifically to Topic No. 11 because, by seeking "the facts,
circumstances and documents relating to SCO's decision to continue to use the Compression
Feature in the Compression Products after August 6, 2003" the topic is overly broad and unduly
burdensome to the extent it seeks information pertaining to products other than those IBM has
accused of infringement.
31. SCO further objects specifically to Topic No. 11 as premature because IBM has
not yet provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
32. SCO further objects specifically to Topic No. 11 on the grounds that the discovery
tool IBM has chosen is the most expensive and unduly burdensome tool available considering
the type of information that is being sought and that requests for production of documents are the
appropriate tool for this type of information.
11
TOPIC NO. 12
33. SCO objects specifically to Topic No. 12 because, by seeking "[t]he functional
and operational similarities and differences among each instance of code that implements each
Compression Feature in each Compression Product" the topic is overly broad and unduly
burdensome to the extent it seeks information pertaining to products other than those IBM
has accused of infringement.
34. SCO further objects specifically to Topic No. 12 as premature because IBM has
not yet provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
35. SCO further objects specifically to Topic No. 12 to the extent that it seeks
information that is just as burdensome for SCO to produce as it is for IBM. SCO has previously
produced the source code corresponding to each accused product. It is no more burdensome for
IBM to undertake the inquiry requested in Topic No. 12 than it would be for SCO to do so.
TOPIC NO. 13
36. SCO objects specifically to Topic No. 13 because, by seeking "[t]he identity of
SCO's personnel most knowledgeable concerning the subject matter described in items 1-12
above" the topic is overly broad and burdensome for the reasons SCO enumerated in its
specific objections to items 1-12 above.
37. SCO further objects specifically to Topic No. 13 as premature because IBM has
not yet provided specific constructions of its asserted claims, nor the support for such claim
12
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
TOPIC NO. 14
38. SCO objects specifically to Topic No. 14 because, by seeking "[d]ocuments
concerning the subject matter set forth in paragraphs 1-13 above," the topic is overly broad and
unduly burdensome for the reasons SCO enumerated in its specific objections to items 1-13
above.
39. SCO further objects specifically to Topic No. 14 as premature because IBM has
not yet provided specific constructions of its asserted claims, nor the support for such claim
constructions, nor has IBM stated how SCO's accused products allegedly infringe the patents-in-
suit.
DATED this 24th day of January, 2005
Respectfully submitted,
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver (admitted pro hac vice)
Stephen N. Zack (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
ANDREWS KURTH LLP
Frederick S. Frei
John K. Harrop
By: ___[signature]____
Attorneys for The SCO Group, Inc.
13
I hereby certify that the foregoing OBJECTIONS TO INTERNATIONAL BUSINESS
MACHINE CORPORATION'S RULE 30(b)(6) NOTICE OF DEPOSITION ("THE
COMPRESSION NOTICE") was served this 24th day of January, 2005:
by facsimile and Federal Express to:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address, fax]
A copy was also sent by depositing a copy of same in the United States mail, first class, postage
prepaid, this 24th day of January, 2005 to the following:
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
Donald J. Rosenberg, Esq.
[address]
___[signature]____
14
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