IBM has amended its eight-month-old patent infringement/breach of contract suit against Platform Solutions Inc (PSI), the start-up that would deprive Big Blue of its ritzy mainframe monopoly if it gets half a chance. IBM is intent that PSI never gets that chance.

IBM has not only amended its complaint it's also changed its tone. No more pussyfooting around. It's a lot more strident now. It accuses PSI, which is backed by Intel and Goldman Sachs, among others, right upfront of theft.

It claims, "Even the limited discovery produced in this case to date confirms that PSI has been engaged in the long-term, systematic theft of IBM's trade secrets, IBM's confidential documents, IBM's copyrighted software and IBM's patented intellectual property, which continues through to this day."

It didn't use that kind of language before.

Unfortunately IBM's amended complaint is redacted with big black lines running through some of its evidence like World War II military censorship.

Anyway, IBM's "gotcha" moment kinda mirrors the pitch of PSI's seven-month-old countersuit, which accuses IBM of illegally tying software to hardware purchases and tortuous interference with its potential sale to HP, as well as monopolization, attempted monopolization, leveraging a monopoly, maintaining, extending and prolonging a monopoly, denying access to an essential facility (namely z/OS), restraining trade, suppressing competition, coercing customers, injuring consumers, exclusionary conduct and unfair or fraudulent business practices that deceive customers and cause "supra-competitively" higher prices that run into the "hundreds of millions of dollars." (Pshew!)

IBM never wants that case to come to trial. That's why it continues to ask the court for a declaration that it's perfectly within its rights in denying PSI a patent license and terminating the software licenses PSI does have so it won't be sued for antitrust.

PSI, on the other hand, has maintained in its countersuit that IBM always used to license its widgetry on fair and equitable terms back when the government was all over IBM but now that the Justice Department isn't paying attention, IBM has changed its policies to maintain its monopoly and keep PSI from competing.

The start-up won't say anything else until it answers IBM formally except that it's "disappointed in IBM's reaction but not surprised" by anything in the amended complaint.

As a persuader, IBM insists that the only way PSI could have gotten HP Itanium boxes to run its mainframe operating systems, as well as Windows, Linux and Unix, was by ripping off IBM IP.

"Without IBM's intellectual property," it claims, "PSI's emulators could simply not exist."

IBM says that since it filed suit in December it's examined PSI's machine and source code and alleges that it infringes not the five patents it originally cited, sight unseen, but 10.

Interestingly, however, IBM dropped one of the original five and added six new ones. The patent withdrawn was the only one of the original five that was a z/ architecture patent.

Patent and copyright infringement is key to IBM getting out from under because, it says, "The antitrust law specifically recognizes a copyright holder's right to decline to license copyrighted software for use on a system that infringes the copyright holder's patents."

IBM also claims documents PSI produced during discovery "show that PSI knew it needed a patent license from IBM" but "knowingly and willfully" went to market without it.

And IBM alleges that PSI willfully misappropriated IBM's trade secrets, another new charge, having acquired them illegally from Amdahl and Fujitsu, which licensed them from IBM years ago.

See, PSI acquired and according to IBM realized what IBM calls S/390 emulator software that PSI's forebear, Amdahl, was working on back in the 90s under the code names Manta, Merlin and Stingray.

IBM contends that PSI, lacking the deep pockets of Amdahl and Amdahl's parent company, Fujitsu, didn't want to pay IBM's pricey fees for a proper license.

It did, however, license patents and technology from Amdahl and - although IBM says PSI denied for years that it had gotten IBM IP with that stuff - it "suddenly advised IBM" in June that - whoops - it "believes it may have inadvertently received IBM confidential information in the form of source code listings for test and diagnostic programs which were originally licensed to PSI in object code form by Amdahl."

The next three pages of IBM allegations are blacked out but elsewhere it says PSI was prohibited by the terms of IBM's agreements with Amdahl from "acquiring IBM's trade secrets and Amdahl's diagnostic tools and other materials developed by Amdahl with the use of IBM's trade secrets and derived from and/or containing those trade secrets."

IBM also says that during discovery PSI produced "IBM Confidential" pricing documents from as recently as this year and won't say how it got them, how many others it's got, return them to IBM or destroy them.

IBM claims PSI has tried all which way to wheedle a license out of IBM - like proposing joint development and suggesting IBM can S/390 chip development in favor of the PSI's Itanium scheme in exchange for equity in PSI.

IBM wants PSI enjoined. And it wants damages, all sorts of damages - like damages for the redacted IBM users that PSI has run off - maximum statutory damages for each software copyright infringement, patent infringement damages, damages for trade secret misappropriation, treble damages, attorneys' fees, pre-judgment interest and all costs.

Squish that would be the end of PSI.

Just last week the start-up showed up at the Share IBM users conference with a new high-end dual-core Itanium System64 ES in tow that's supposed to be the equivalent of a z9 BC and goes from 250 MIPS to 2,000 MIPS.

PSI said it intends to sell the box direct. A smaller model, called Liberty Servers, delivering 26 MIPS-350 MIPS continues to be handled by third-party mainframe reseller T3 Technologies.

IBM and PSI are progressing towards a trial sometime in the fall of 2008. Depositions will start in October and both firms are expected to file summary judgment motions in the spring.