| IBM goes for an SCO KO |
Sep. 26, 2006
IBM swung a haymaker at SCO on Sept. 25. The corporate giant asked the U.S. District Court in Salt Lake City, Utah for summary judgment against all of SCO's claims.
The SCO vs. IBM case is over three years old. Although The SCO Group Inc. has had little success in persuading the court or the buying public that IBM did indeed take SCO's Unix intellectual property and place it within Linux, the company has stayed its course.
In the last year, however, SCO has suffered more than just reverses in the court of public opinion. On June 28, Magistrate Judge Brooke Wells ruled largely in favor of an IBM's motion, and threw out the vast majority of SCO's claims against IBM.
Now, SCO, in turn, has also filed at least one motion for partial summary judgment.
Will these attempts to knock each other out of the ring before the court date of Feb. 26, 2007 come to anything? While those who just wish SCO and its Linux legal cases would just skulk off into the darkness hope that this will spell the end of the IBM/SCO case, the experts don't see it happening that way.
Thomas Carey, chairman of the business practice group at Boston-based Bromberg & Sunstein LLP, a firm specializing in IP litigation and business law, pithily said, "Summary judgment motions are usually a waste of time, but the parties make them anyway. Perhaps it helps crystallize their thinking about what their arguments at trial will be."
That's because, John Ferrell, founding partner of Carr & Ferrell, LLP, a Silicon Valley IP and corporate law firm, explained, "In requesting Summary Judgment, one party in a lawsuit argues to the judge that there are no more facts in dispute, and requests that the judge rule up or down on the case based on the documents filed."
"Most judges hate to completely eliminate a case on summary judgment, because it often deprives the non-moving party a full hearing on the merits -- a denial of her 'day in court,'" continued Ferrell.
"IBM will be very satisfied if even a few of the points of dispute in this case can be eliminated through this summary judgment motion. If you are on defense, every issue that can be kicked out before trial is one less issue to lose on in final judgment."
Michael R. Graham, an IP (intellectual property) attorney and partner with Marshall Gerstein & Borun LLP in Chicago, an IP-specialty firm, said that "virtually the entire case is before the Court in these motions."
Like the other attorneys, Graham finds it "extremely doubtful that all of the claims of either party would be decided on summary judgment, which requires that the Court find that there are no issues of material fact, and that based on all the evidence the party bringing the motion is entitled to judgment as a matter of law, the determination of which also requires that any contradictory evidence be viewed in the light most favorable to the non-moving party. Thus, for the Court to find for either party it must find that a jury could not view the evidence in any other way."
Still, Graham continued, "It is possible that some of either party's claims could be determined under such a motion, and if, as IBM has claimed, the Court finds SCO has failed to offer any evidence of substantial similarity of protectable code or other evidence of infringement; or if, as SCO has claimed, the court finds IBM committed spoliation of evidence, the court could grant broad relief and dismiss the claims or rule that a negative inference should be drawn from the spoiled evidence.
What may really be going on here, said Graham, "is whether the parties actually hope that through these filings the various claims will be granted or denied and the case either dismissed or pared down to particular issues for trial; or that through these filings the trial will have to be delayed during the Court's consideration of the motions. One party may be seeking rapid, summary disposition of this case, whereas the other party might be seeking to draw it out indefinitely. It is unclear from the partial filings I have seen what likelihood of success either party can anticipate."
Still, as Ferrell observed, "If IBM wins these summary judgment motions, SCO may be totally in defense mode since it appears that only IBM counter-claims will remain. SCO's legal case continues to lose steam, as their legal bills belch."
Certainly, even SCO's stock-buyers are beginning to lose faith in their fighter. The Lindon, Utah-based company hit a yearly-low of a $1.52 a share before staggering back to $1.66, which was still a 52-week low.
-- Steven J. Vaughan-Nichols
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