SCO's Case Against IBM Takes Hard Hit

In spite of his denial of IBM's (NYSE: IBM) request for a partial summary judgment, U.S. District Judge Dale Kimball bolstered Big Blue's defense when he questioned whether SCO had any evidence to support the claim that IBM's Linux business infringed upon SCO's Unix patents.

"Despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment," the judge wrote yesterday.

"Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities."

Where's the Code?

Open-source advocates have said there is no infringement on IBM's part and have called for SCO to reveal the code it claims it owns since it first alleged the violations. So far, the company has not done so.

Judge Kimball denied the partial summary judgment, which asked the court to declare that IBM had not infringed on SCO's patents, saying that he wanted to go through discovery, or the process of gathering all the facts of the case.

One open-source advocate believes that this decision will prove to be a better one in the end.

'Ridiculous Lawsuit'

"This interim decision means that both parties, and the rest of us, will have to wait a little longer before SCO's claims are buried," Lawrence Rosen, an open-source leader and intellectual property attorney, told LinuxInsider. "If the court were to grant a partial summary judgment before all the evidence was in, this case would be up on appeal. We don't want that.

"I think the judge telegraphed his clear displeasure at SCO's failure to present evidence to back up its claims of copyright infringement. I'm very pleased about those comments," Rosen said.

"They support the recommendation that most of us have made since this ridiculous lawsuit was filed: We should ignore SCO's claims against Linux, and let the contract dispute between IBM and SCO play out at the usual slow pace of federal civil litigation."

The case against IBM began in March 2003, with SCO seeking US$1 billion in damages. The company amended the amount to $4 billion in February 2004.