IBM’s request for a summary judgement on its tenth counterclaim that its Linux activities do not infringe SCO copyright may have failed for now, but Judge Dale Kimball indicated that he was tempted to grant IBM’s motion given SCO’s lack of evidence.

Viewed against the backdrop of SCO’s plethora of public statements concerning IBM’s and others’ infringement of SCO’s purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO’s alleged copyrights through IBM’s Linux activities, Judge Kimball wrote.

Lindon, Utah-based SCO launched its claims that Linux contains elements of its Unix System V code in March 2003 and has repeatedly said publicly that it has evidence of Unix code that infringes its copyrights being donated to Linux by Unix licensees, including IBM.

At its SCO Forum event in August 2003, for example, the company said that using pattern recognition matching technology it had identified 1.1 million lines of code from 1,549 files of derivative works that had been donated to Linux by Unix licensees.

The company has shied away from presenting that evidence in court, however, dropping misappropriation of trade secret claims against IBM in February 2004 in favor of claims that IBM breached a contract with SCO by contributing its own derivative Unix code to Linux. It has also repeatedly asked for more evidence from IBM, including every version of its AIX and Dynix Unix operating systems.

Magistrate Judge Brooke Wells, who is handling discovery, last month ordered IBM to handover the all versions of its Unixes, estimated by IBM to be in the region of two billion lines of code. Earlier this month IBM challenged the order, maintaining that it has a number of unspecified objections and also needs some clarification on certain provisions of the order.

Whether IBM had a right to contribute its own Unix code to Linux is now the central argument in this case, with IBM arguing that Novell Inc waived any claims for copyright infringement against IBM on SCO’s behalf. Novell is the former owner of Unix System V, and its claims to have retained copyright over the code are the focus of a separate lawsuit.

In his latest order, Judge Kimball also questioned SCO’s decision to dispute IBM’s claims regarding Novell’s rights over the code. SCO. In its briefing, chose to cavalierly ignore IBM’s claims that SCO could not create a disputed fact regarding it even owned the relevant copyrights, he wrote.

Nevertheless, despite the vast disparity between SCO’s public accusations and its actual evidence – or complete lack thereof – and the resulting temptation to grant IBM’s motion, the court has determined that it would be premature to grant summary judgment, he added.

Kimball wrote that IBM is free to renew its motion after the close of discovery, but decided it would be premature to grant its motion given the ongoing discovery process.

The Judge also denied SCO’s motion to dismiss or stay IBM’s tenth counterclaim and dismissed SCO’s claims that it had not brought a claim of copyright infringement against IBM’s Linux business.

It clearly has alleged such a claim, Kimball wrote, citing SCO’s own second amended complaint against IBM, and its case against Linux user AutoZone, which has been stayed until the completion of the IBM case.

In light of SCO’s lawsuit against AutoZone and SCO’s public statements during the last two years, which have essentially invited this claim, it is incomprehensible that SCO seeks to postpone resolution of this claim, he added.

Judge Kimball also declined to consider two other IBM motions for partial summary judgment – on SCO’s breach of contract claims and its own claim of copyright infringement against SCO – until the completion of the discovery process.

The Judge also ordered that no further dispositive motions, such as motion for summary judgment or to dismiss, should be filed until the completion of discovery.