Judge tosses out most SCO claims

SCO failed to identify the alleged infringements in enough detail, says judge

A US judge has thrown out almost 200 of The SCO Group’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 chastised SCO for its “wilful 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 IP 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,” says Gary Barnett, a UK-based software and intellectual property analyst with Ovum. “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 OS. IBM has denied any wrongdoing and questioned the validity of SCO’s copyrights.

According to press reports, SCO has said it will continue to press its case and noted that it still has several claims against IBM that were unaffected by the judge’s decision.

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

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