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April 15, 2004

IBM to seek summary judgment against SCO

IBM Corp has said it is likely to ask the court for a summary judgment in its breach of contract and copyright case with SCO Group Inc, raising the potential that some or all of SCO's claims against IBM and the Linux operating system could be dismissed without trial.

By CBR Staff Writer

In a response to Lindon, Utah-based SCO’s recent request of the court to fork the case, IBM indicated that it will seek a summary judgment before such a split might be considered necessary.

At this stage of the case, it is not clear which, if any, claims of issues will require a trial, the company said in its response to SCO’s motion. We believe that most (if not all) of the claims and issues in suit can and should be resolved by summary judgment, without the necessity of trial.

IBM continued: Because SCO has not yet responded fully to IBM’s discovery requests and only one deposition has been taken (of a third party), however, it is too soon to tell for sure how much and which parts of the case can be handled by summary consideration.

A summary judgment is sought when a defendant believes there are no more factual issues to be argued or the plaintiff has raised no genuine issue that needs to be tried in front of a jury. Either way the mention of a summary judgment indicates that IBM is feeling particularly confident about its case.

SCO had asked to split, or bifurcate, the case so that IBM patent counterclaims could be heard separately from its claims that IBM has breached SCO contract and copyright by taking Unix code and contributing it to Linux.

IBM also opposed this motion on the grounds that its patent counterclaims are not unrelated to the crux of the case, as SCO claims. IBM alleges patent infringement with respect to the very products from which SCO alleges that IBM has misappropriated code (i.e. UnixWare) and if not resolved on summary judgment (as we expect), IBM’s patent claims are likely to present very few triable issues, it stated.

SCO had also argued at the end of March that it was necessary to separate the patent counterclaims in order to reduce the complexity and speed up the case, before just days later asking for the entire case to be put back by five months in order to extend the current discovery portion of the case.

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IBM has yet to respond to that request, but indicated in its response to split the case that it is likely to oppose the motion. As we will explain separately in our response to SCO’s motion to extend the scheduling order and unnecessarily prolong the case, there is no reason to extend the discovery period on the patent claims, it said.

This article is based on material originally published by ComputerWire

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