SCO's Motion to Bifurcate - as Text

Tuesday, March 30 2004 @ 01:11 AM EST

Contributed by: PJ

Here, thanks to an anonymous commenter, is the text of SCO's Motion to Bifurcate. PDF here.

********************************************

Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone, fax]

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
[address, phone, fax]

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'S MOTION FOR
SEPARATE TRIALS

Case No. 2:03CV0294DAK

Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells
____________________________________

Plaintiff The SCO Group, Inc. ("SCO") hereby moves this Court for an Order separating the trial of Defendant International Business Machine Corporation's ("IBM") patent counterclaims (counterclaims nine through twelve) from the trial of the primary claims and counterclaims in this case. The grounds for this Motion are as follows:

SCO and IBM have asserted various claims arising from the same nucleus of operative facts and the central issue in this case of whether IBM's disclosure of AIX and Dynix/ptx through its involvement in Linux violated the licensing agreements IBM entered into with several third parties.

IBM has interposed four unrelated patent counterclaims into this case. The discrete issues arising from the breach of the license agreements should not be tried before a jury together with IBM's unrelated patent infringement counterclaims where the only common thread between the licensing agreements claims and the patent counterclaims is the identity of the parties. To assist in juror comprehension and reduce both prejudice and delay IBM's four patent counterclaims should be tried separately and should proceed on a separate discovery schedule.

This Motion is supported by a Memorandum in Support filed concurrently herewith.

DATED this 24th day of March, 2004.

Respectfully submitted,

BY: ________signature___________
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J. Heise
David K. Markarian


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc. hereby certifies that a true and correct copy of PLAINTIFF'S MOTION FOR SEPARATE TRAILS was served on Defendant International Business Machines Corporation on this ____ day of March, 2004, by U.S. Mail, first class, postage prepaid, on their counsel of record as indicated below:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

Evan R. Chester, Esq.
David R. Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

________signature______________

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