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Judge fillets SCO's case against IBM

And pokes fun at it, into the bargain.

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A US judge has tossed out almost 200 of SCO's claims of intellectual property violation against IBM, for not identifying the alleged infringements clearly enough.

In a 39-page ruling, Judge Brooke Wells chastised SCO for its "wilful failure" to identify exactly which parts of IBM's software allegedly infringe 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. On Wednesday, 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 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 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.

Representatives from SCO and IBM could not be reached for comment Monday. 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. Against industry doubts, SCO has asserted it has a viable business apart from the case.

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. Judge Wells disagreed, saying SCO should have identified the specific source code as well.

In siding with IBM, Judge Wells drew a colourful 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 in PDF format on the Groklaw Web site.



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