Please notice this is the only paragraph in the paragraphs 74 to 86 set of paragraphs to which IBM makes a clear and unqualified denial. However, in this paragraph, SCO-Caldera is accusing IBM of misappropriation of UNIX code, methods or concepts.
When, as in paragraph 86, SCO accuses IBM of wrongdoing, IBM seems to have no lack of information that prevents IBM from denying the accusation. However, when SCO alleges something that goes against the Linux kernel, GNU/Linux, the Linux community, and so forth IBM suddenly starts to sound like the Sergeant Schultz character from Hogan's Heroes and suddenly knows nothing -- despite clear and convincing evidence that IBM has plenty of information about these allegations at its fingertips.
Interestingly, while IBM let the anti-Linux accusations in SCO-Caldera's Complaint remain hanging, it managed to deny some of the allegations of IBM misdoings. Although poorly pled in the Complaint and poorly pled in the Answer, IBM does manage in its reply to Complaint paragraph 91 to deny that IBM misappropriated the confidential and proprietary information from SCO in Project Monterey and that IBM misused its access to the UNIX Software Code.
Parsing Complaint paragraph 91, it alleges:
As mentioned in the paragraph 74 discussion above, the SCO-Caldera Complaint should have been drafted to set forth each one of these matters of fact as a separate item -- either by placing each item in a uniquely numbered paragraph or by setting the items apart in a list similar to the above parsing. Paragraph 91 is yet another example of how poorly SCO-Caldera pled its Complaint.
Also, the subject press release should have been attached to the Complaint as an exhibit in support of the allegations. It was not so attached.
As discussed with Complaint paragraph 74, IBM could have and should have asked the trial court judge to require SCO-Caldera to file a properly drafted complaint. However, IBM did not do that and thereby waived its right and opportunity to have a properly drafted complaint for IBM to answer.
There are different ways to construe IBM's answer to paragraph 91 that it [d]enies the averments of paragraph 91, except refers to the referenced document for its contents.
In the light most favorable to IBM, you could view that answer to paragraph 91 as stating that IBM denies that:
and then construe the reference to the document (the August 2003) press release as an admission to the remaining parsed allegations, (f) through (n).
Nevertheless, that leaves parsed parts (d) and (e) in a sort of Limbo. A literal construction of IBM's answer to paragraph 91 would seem to imply that IBM denies:
The point here is that viewed in a light favorable to IBM, its answer to paragraph 91 is merely poorly drafted. If you view IBM's answer to paragraph 91 without giving IBM the benefit of any doubts, that answer is incomplete and dishonest -- because in that view, IBM is denying that the said press release was jointly issued by IBM and Red Hat and that it was issued through MS Presswire.
For your information, we found what appears to be the press release mentioned in paragraph 91. That press release, IBM broadens Linux support -- Red Hat and IBM Collaborate on e-Business Software Solutions, is on the IBM Web site and is dated 15 August 2000. There is a link to it in the Resources section at the end of this article.
Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.
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