The issue of whether the US federal courts will sustain Berkeley Software Design Inc’s motion to dismiss Unix System Laboratories Inc’s suit against it comes up this week. The judge is said to have decided not to hear oral arguments, cancelled the hearing set for July 20 and will base his decision, due in 30 days, on the documents at hand. Unix Labs is suing Berkeley Software for unfair competition and for falsely advertising that its BSD/386 operating system, a derivative of the Network Release 2 work done by the University of California, Berkeley, is free of AT&T code and needs no licence from Unix Labs. Berkeley Software lawyers went on the offensive last week, circulating court documents among the press along with a release slamming the Unix Labs suit as harassing and frivolous and harbouring chilling overtones for the computer software industry. They claim AT&T’s real motivation is to harass and to attempt to intimidate a potential competitor and to maintain a monopoly of the Unix System market by suing anyone who refuses to tithe to them. Berkeley Software bases its claims of no-licence-required on representations made to it in writing by the University’s Computer Systems Research Group. Casting itself as a tiny company imperilled by a giant shark, Berkeley Software makes much of the fact that Unix Labs has not sued the University nor stopped it from distributing the software. However they say, we expect that Unix Labs (or its parent, ATT [sic]) will threaten to review or withdraw research grants made to any university or research institution using or distributing software based on NET2, even though no violation has yet been proven.
Recourse to law
Unix Labs says it is in contact with the University in an attempt to resolve their difficulties informally and without recourse to law. It refused to say with whom specifically it was talking or the substance of the discussions. Berkeley Software’s motion to dismiss, which makes significant use of the Xerox-Apple precedent, claims Unix Labs’ failure to sue for any patent, trade secret or copyright infringement, or even allege such violation, taints its case. Infringement, Berkeley argues, is a necessary first step to proving false advertising or unfair competition. It dismisses the fact that Unix Labs has reserved the right to bring such a claim later, apparently after discovery, suggesting that this means it does not have a good faith basis for such a claim at this time. Unix Labs’ suit asks for unspecified compensatory, treble and punitive damages as well as an accounting and disgorgement of Berkeley Software’s profits derived as a result of its wrongful acts… Berkeley Software is in the meantime bound by a court order not to use its toll-free 800-ITS-UNIX number.
