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IBM has answered the SCO Group's billion-dollar-and-counting suit against it for allegedly misappropriating its Unix trade secrets and throwing them over the wall to Linux after getting the case kicked upstairs to a federal court and waiting until the last possible second allowed to file its response.
Heck, the paperwork was due on Wednesday, April 30, and everybody expected it to turn up at the courthouse in Salt Lake City by 5 o'clock Mountain Time, but IBM and its famous lawyers Cravath, Swaine & Moore availed themselves of the lockbox outside which gave them until 12 midnight.
Anyway, the answer is basically a laundry list of denials of all of SCO's allegations or else makes repeated use of that delightful legal expression claiming that IBM is "without information sufficient to form a belief as to the truth of the averments."
Among the things it claims not to know anything about is "precisely how Linux was developed and whether it is popular among computer enthusiasts," but it does admit that "IBM is assisting in the market success of Linux."
However, there's a brief preamble to the response that SCO's lawyers say is an unusual form that casts SCO as the heavy and, playing to the house, says:
"...By its lawsuit, Caldera [SCO's old name] seeks to hold up the open source community (and development of Linux in particular) by improperly seeking to assert proprietary rights over important, widely used technology and impeding the use of that technology by the open source community.
"While IBM has endeavored to support the open source community and to further the development of Linux, IBM has not engaged in any wrongdoing. Contrary to Caldera's unsupported assertions, IBM has not misappropriated any trade secrets; it has not engaged in unfair competition; it has not breached contractual obligations to Caldera. In any event, IBM has the irrevocable, fully paid-up and perpetually rights to the 'proprietary software' that it is alleged to have misappropriated or misused."
Well, gee, and IBM said early on that it didn't want to try this case in the press.
SCO lawyer Mark Heise of Boies, Schiller & Flexner LLP says IBM's defense is so thin and "boilerplate" that he's "still waiting for them to file it." He calls the preamble a "press release."
At the end of the vague 16-page filing, IBM not unexpectedly contends that SCO's suit "fails to state a claim upon which relief can be granted," since SCO's suit, filed by its equally famous lawyer David Boies, a former Cravath, Swaine partner, was - as even its own lawyer has admitted - a tapestry of conclusions, not facts.
Heise says that IBM could have asked the court for more detail, but chose not to, contending that the substance-less nature of IBM's reply was less a matter of IBM's unwillingness to show its hand than it was a matter of having nothing in it.
"I'm ready to throw my 25-30 pages of details on the table," Heise claimed. He has previously said the SCO suit lacked facts on purpose to play cat and mouse with IBM.
IBM's response also claims - presumably with respect to how it used Unix IP - that "IBM's conduct was privileged, performed in the exercise of absolute right, proper and/or justified" - rights SCO has contended only exist as long as IBM abides by the terms of its contracts - that Caldera, which bought the Unix IP off of the old Santa Cruz Operation, "lacks standing to pursue claims against IBM relating to Project Monterey," the Unix-for-Itanium development IBM and the Old SCO pursued for a while; that the statute of limitations prevails in some particulars; that Caldera's claims "are barred, in whole or in part, by the economic-loss doctrine or the independent-duty doctrine" - hypertechnical legalisms barring tort and contract claims on the same charge - and lastly claims that whatever else is left over is knocked out of the blocks by the assorted legal doctrines of "laches, delay, waiver and estoppel."
IBM further claims that SCO's lawsuit was "improperly venued in this district," a contention that plays to the rumor that IBM ultimately wants to get the suit moved out of Utah and away from the Mormon old boy network that prevails there, to New York, where it lives. Heise figures, "It's not gonna play."
In the pat kind of close found in most of these kind of suits, IBM said it wants the suit dismissed with prejudice and SCO made to pick up its attorneys' fees and costs "along with such other and further relief as the court deems just and proper."
SCO is evidently not required to respond to IBM so Heise expects the case to proceed to witness lists, depositions and discovery soon enough. Heise said he wasn't familiar with Judge Dale Kimball's schedule but he reckoned that cases like this take anywhere from six to 18 months to wend their way to trial.
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