The Buildup to the Next SCO-IBM Motion Battle - The 10th Counterclaim

Friday, June 18 2004 @ 09:07 AM EDT

Contributed by: PJ

There is a new Order from Judge Kimball, setting due dates for SCO and IBM in connection with the next big motion battle, the one over IBM's Tenth Counterclaim. Darl mentioned at the June 10th 2nd quarter financials teleconference that he anticipated that the oral arguments on these motions will be on August 4, which indicates that IBM's request that both motions be heard on the same day, both SCO's motion to dismiss or stay count 10 and IBM's motion for partial summary judgment on their tenth counterclaim, was granted. Here's the schedule:

This is the fight over IBM's Tenth Counterclaim, added to COUNTERCLAIM-PLAINTIFF IBM'S SECOND AMENDED COUNTERCLAIMS AGAINST SCO.

You may not remember what this is all about, so if you wish to review, here are the documents that all of the new motions will be about, plus a snippet from each to remind you of the issues:

Here is how the Tenth Counterclaim they are fighting about reads:

"TENTH COUNTERCLAIM

"Declaratory Judgment of Noninfringement of Copyrights

"168. IBM repeats and realleges the averments in paragraphs 1 through 167 with the same force and effect as though they were set forth fully herein.

"169. As discussed above, SCO purports to hold copyrights relating to UNIX software.

"170. SCO has sued IBM claiming that IBM has infringed, induced the infringement of, and contributed to the infringement of, SCO's purported UNIX copyrights by, among other things, continuing to 'reproduce, prepare derivative works of, and distribute copyrighted UNIX materials through its activities relating to Linux'.

"171. IBM does not believe that its activities relating to Linux, including any use, reproduction and improvement of Linux, infringe, induce the infringement of, or contribute to the infringement of valid, enforceable copyrights owned by SCO.

"172. An actual controversy exists between SCO and IBM as to the noninfringement ofSCO' s copyrights and the validity of any purported SCO copyrights concerning UNIX.

"173. IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO' s purported copyrights in UNIX are invalid and unenforceable."

There is a lot at stake here for SCO, but not much for IBM. IBM would seem to have very little to lose, no matter how this hearing plays out, whereas SCO's head is squarely on the chopping block. No wonder they want AutoZone to go first. Here is the Order.

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION, INC.,

Defendant/Counterclaim-Plaintiff.

_____________________________

ORDER RE BRIEFING FOR PENDING MOTIONS

Case No. 2:03CV294DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

__________________________

Based upon the stipulation of the parties, and good cause appearing,

IT IS HEREBY ORDERED as follows:

IBM may file a supplemental Memorandum in opposition to SCO's Motion to Dismiss which shall be due on June 21, 2004.

IBM's Response to SCO's Memorandum Regarding Discovery shall be due on June 21, 2004.

SCO's Opposition Memorandum to IBM's Motion for Partial Summary Judgment shall be due on July 8, 2004.

IBM's Reply Memorandum in Support of its Motion for Summary Judgment shall be due on July 26, 2004.

SCO's Reply Memorandum in Support of its Motion to Dismiss shall be due on July 26, 2004.

DATED this 14th day of June, 2004.

BY THE COURT:

_____[signature]______
Honorable Dale A. Kimball
United States District Court Judge

BY: _____[signature]_______
SNELL & WILMER L.L.P.
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott

Counsel for Defendant International Business Machines Corporation

BY: _____[signature]_______
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Mark J. Heise

Counsel for Plaintiff The SCO Group, Inc.


United States District Court
for the
District of Utah
June 15, 2004

CERTIFICATE OF SERVICE OF CLERK

Re: 2:03-cv-00294

True and correct copies of the attached werre either mailed, faxed or e-mailed by the clerk to the following:

Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]

Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]

Frederick S. Frei, Esq.
ANDREWS KURTH
[address]

Evan R. Chesler, Esq.
CRAVATH, SWAINE & MOORE
[address]

Alan L. Sullivan, Esq.
Snell & Wilmer LLP
[address]

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]

Mr. Kevin P McBride, Esq.
[address]

Robert Silver, Esq.

BOIES SCHILLER & FLEXNER
[address]

Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]

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