IBM now faces fewer claims in SCO legal fight

IDG News Service - A judge has tossed out almost 200 of The SCO Group Inc.'s claims of intellectual property violation against IBM on the grounds that SCO didn't identify the alleged infringements in enough detail.

In a 39-page ruling last week, Judge Brooke Wells of the U.S. District Court in Utah chastised SCO for its "willful failure" to identify exactly which parts of the software distributed by IBM allegedly infringe on SCO's intellectual property.

"SCO's arguments are akin to SCO telling IBM, 'Sorry we are not going to tell you what you did wrong because you already know,'" Wells wrote, saying its actions were prejudicial to IBM.

IBM had asked for 201 of SCO's 294 claims of intellectual property violation to be dropped before trial. After some clarifications, IBM continued to press for 198 claims to be dropped. The judge threw out all but about a dozen of those claims -- not based on their merits, she noted, but because of SCO's failure to specify for IBM the source code in question. Her order stemmed from an IBM motion to preclude SCO's claims from the case.

"Striking out such a large number was predictable in terms of what we've seen through this whole process, which is complete disability [on SCO's part] to produce evidence," said Gary Barnett, a U.K.-based software and intellectual property analyst with Ovum Ltd. "Undoubtedly it's bad for SCO's case, but it was pretty bad even before this happened."

SCO filed its lawsuit in 2003, arguing that IBM misappropriated portions of SCO's copyrighted Unix System V software code and contributed them to the Linux operating system. IBM has denied any wrongdoing and questioned the validity of SCO's copyrights.

A SCO spokesman said that the company's attorneys are reviewing the court's latest ruling. "They're planning what their next steps will be...," the spokesman said.

IBM spokesman John Charlson declined to comment, saying the company doesn't discuss pending litigation.

IBM will likely challenge those claims when the case comes to trial, Ovum's Barnett said. That's expected to happen early next year.

SCO had argued that it was sufficient for it to have identified the "methods and concepts" that it says were misappropriated by IBM. Wells disagreed, saying SCO should have identified the specific source code as well.

In siding with IBM, Wells drew a colorful analogy based on the Neiman Marcus department store.

"Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole," she wrote. "It would be absurd for an officer to tell the accused that 'You know what you stole I’m not telling.' Or, to simply hand the accused individual a catalog of Neiman Marcus’ entire inventory and say 'It's in there somewhere, you figure it out.'

"Without more specificity than SCO has provided, some very important questions that could materially impact this case are nearly impossible to answer. For example, is the code that comprised the method or concept still in use in Linux? If not, then damages may become nominal instead of in the billions."

A copy of the ruling was posted on the Groklaw Web site.

Computerworld's Todd R. Weiss contributed to this report.