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August 8, 2003

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Update Note 10 Aug 03: Get full IBM Answer and Counterclaim text -- 22-KB download

IBM Answers SCO's Amended Complaint and Adds a Counterclaim to Boot

IBM Court Filing Seeks Money Damages and Injunctions Against SCO-Caldera

U.S. GNU/Linux Community Fights Back

By Mike Angelo -- 8 August 2003 (C) Page1

Update Note 10 Aug 03: The full 45-page IBM Answer and Counterclaim text, a 22-KB download, is available from the Resources Section on Page 2 of this article.

SCO-Caldera v. IBM:

SCO Clears Linux Kernel but Implicates Red Hat and SuSE

IBM Files Answer to SCO's Caldera v IBM Complaint

IBM Response to SCO-Caldera Complaint Is Outrageous!

SCO Has Not Found Its Code in Kernell.Org Linux Kernel or in GNU/Linux OS -- Conectiva, Mandrake, and SuSE Say No SCO in Their Code

Kernel.Org and GNU/Linux Developers Have Clean Code Safeguards -- Is SCO Trying to Dictate Linux Kernel and GNU/Linux Development Procedures?

Novell Says SCO Does Not Own Unix IP -- SCO Says it Does -- Novel Enters the SCO IP Fray with No Proof and More FUD

IS SCO NDA Sideshow Setting a Trap for Analysts and Linux Developers?

SCO +1, Novell -1 in SCO v Novell Unix-IP Feud -- Novell loses big round in Unix IP fray with SCO-Caldera

Is IBM's Irrevocable Unix License Revocable?

SCO-Caldera & the GNU/Linux Community:

IBM filed its answer and counterclaim to SCO's Amended Complaint late on 6 August 2003 in the Utah Federal court presiding over the SCO-Caldera v IBM lawsuit. IBM's counter claims for money damages and injunctive relief come only days after Red Hat Software, announced a two-pronged legal counter attack against SCO-Caldera's anti-Linux war.

SCO-Caldera has been attempting to scare GNU/Linux users into buying SCO UnixWare licenses that promise to hold them harmless from SCO anti-Linux lawsuits. SCO-Caldera also has filed a lawsuit against IBM, which is essentially a fracas about IBM contributing code to the Linux kernel and otherwise heavily supporting GNU/Linux and the GNU/Linux community.

SCO Infringes on IBM Patents

According to a letter from Bob Samson, Vice President, Systems Sales, IBM Systems Group, IBM is seeking an "injunction requiring SCO to refrain from misrepresenting its rights, and to cease further infringement of IBM's patents."

In MozillaQuest Magazine's 5 August 2003 article discussing SCO-Caldera's Amended Complaint and the SCO v IBM lawsuit, Tom Carey and Mike Angelo discussed the IBM patent issue: on page 4 of that article.

    MozillaQuest Magazine: Could this produce an anomaly where IBM owns the copyright and patent interests in these derivative works and extensions yet IBM is subject to the Unix license agreements for them anyway?

    Thomas C. Carey: This is unlikely. But it is possible that either party may have written code that infringes on the patent rights of the other party. If IBM owns patents that cover the functions served by the disputed code, then IBM is in the driver's seat. It is relatively easy to code around copyrighted software. Patent protection is much more of a challenge. In that case, SCO might have a hard time selling UNIX without a license from IBM. [Emphasis Added.]

Here is the meat of Bob Samson's letter:

IBM counter sued SCO on a range of issues. Simply put, SCO's scheme is an attempt to profit from its limited rights to a very old UNIX operating system by introducing fear, uncertainty and doubt into the marketplace.

The counterclaims are detailed in our legal filing, but here are the key points:

    SCO has violated the GNU General Public License, under which it accepted

    Linux contributions and distributed Linux.

    SCO has improperly claimed the right to revoke IBM's UNIX license, despite the fact that IBM's contract expressly provides that IBM's rights are irrevocable and that Novell, which is a party to the agreement under which IBM obtained an irrevocable and perpetual UNIX license, agrees that SCO cannot terminate IBM's license and has exercised its right to waive this claim.

    SCO has directly infringed four IBM patents relating to SCO's commercially available UnixWare, Open Server, SCO Manager and Reliant HA clustering software products.

IBM is seeking compensatory and punitive damages and an injunction requiring SCO to refrain from misrepresenting its rights, and to cease further infringement of IBM's patents.

The Germans already have been quite successful at getting the German courts to force SCO-Caldera from making its Anti-Linux claims and spreading FUD in Germany. Will the American's be as successful in their court battles to stop SCO-Caldera from making its Anti-Linux claims and spreading FUD in the U.S.A.?

A Quick Look at IBM's Answer and Counterclaim

We still are digesting IBM's 45-page puppy. It's a hum-dinger. But here are some highlights of IBM's counterattack.

First off the full title of IBM's answer and counterclaim taken from the filing is "DEFENDANT IBM' S ANSWER TO THE AMENDED COMPLAINT AND COUNTERCLAIM-PLAINTIF IBM'S COUNTERCLAIMS AGAINST SCO". SCO now is the Plaintiff/Counterclaim-Defendant and IBM now is the Defendant/Counterclaim-Plaintiff.

  • The Answer

The first sixteen pages of IBM's Answer and Counterclaim are comprised of 170 paragraphs answering the 170 numbered paragraphs of SCO's Amended Complaint. The sixteen page Answer is pretty much a straight up and down denial of just about every allegation made in SCO's Amended Complaint.

That's a major change and improvement from IBM's Answer to SCO's original Complaint. In that original Answer, IBM tried to evade answering many questions there by falsely stating that it did not have sufficient information so as to form a belief about the truth of the allegations. More about that and the details of the sixteen page Answer to the Amended Complaint in an upcoming article.

  • Affirmative Defenses

Pages 17 and 18 of IBM's Answer and Counterclaim raise ten boilerplate affirmative defenses. However, of particular interest might be the Tenth Defense, set forth on page 18: SCO has failed, in whole or in part, to mitigate its alleged damages.

IBM fails to specify with sufficient particularity how SCO allegedly has failed to mitigate its alleged damages. However, it is quite likely that this is where SCO and its CEO Darl McBride's refusal to show IBM (and also the Linux kernel and GNU/Linux developers and distributors) just what code SCO claims IBM improperly contributed to the Linux kernel is going to boot SCO and McBride in the butt.

  • IBM's Counterclaims

IBM's Counterclaims start on page 18 of its Answer and Counterclaim. Pages 18 through 44 are about IBM's ten Counterclaims -- 103 numbered paragraphs of counterclaim pleadings. Particularly interesting is the Second Counterclaim, relating violation of the Lanham Act -- 15 U.S.C. § 1125, 15 U.S.C. § 1117(a).

Red Hat's lawsuit against SCO also includes allegations of SCO violating the Lanham Act. To all those people in the GNU/Linux community that want to sue SCO, check IBM's Second Counterclaim and the comparable allegations in the Red Hat v SCO Complaint. You likely can use the Lanham act as a basis to sue SCO too.

Here are the ten IBM Counterclaims:



51. IBM repeats and realleges the averments in paragraphs 1 through 50, with the same force and effect as though they were set forth fully herein.

52. IBM sells and distributes AIX and Linux-related products and services in interstate commerce.

53. SCO has made material false representations regarding AIX and IBM's Linux-related products and services, which affect a customer's decision whether to purchase these products and services. Specifically, SCO has publicly misrepresented the legitimacy of these products and services by falsely representing that IBM no longer has the right, authority and license to use, produce and distribute these products and by misrepresenting SCO's own rights in and to UNIX, AIX and Linux.

54. SCO has published its false statements in a series of widely-distributed press releases, press interviews and other streams of commerce, as part of its bad faith campaign to discredit IBM's products and services in the marketplace, to increase the perceived value of SCO's limited rights to UNIX and to promote SCO's own, UNIX operating systems, UnixWare and Open Server.

55. These statements are likely to cause confusion and mistake and have in fact caused confusion and mistake as to the characteristics of IBM's goods, products and/or services.

56. As a direct result of SCO's false representations, all of which are in violation of 15 U-S.C. § 1125, IBM has suffered damages in an amount to be determined at trial. IBM is also entitled to damages and attorneys' fees pursuant to 15 U.S.C. § 1117(a).


FOURTH COUNTERCLAIM Intentional Interference with Prospective Economic Relations

FIFTH COUNTERCLAIM Unfair and Deceptive Trade Practices

SIXTH COUNTERCLAIM Breach of the GNU General Public License

SEVENTH COUNTERCLAIM Patent Infringement -- United States Patent No- 4,814,746 "Data Compression Method"

EIGHTH COUNTERCLAIM Patent Infringement -- United States Patent No. 4,821,211 "Method of Navigating Among Program Menus Using a Graphical Menu Tree"

NINTH COUNTERCLAIM Patent Infringement -- United States Patent No- 4,953,209 "Self-Verifying Receipt and Acceptance System for Electronically Delivered Data Objects"

TENTH COUNTERCLAIM Patent Infringement -- United States Patent No, 5,805,785 "Method for Monitoring and Recovery of Subsystems in a Distributed/Clustered System"

  • See SCO's Punishment on Page 2 ----->
  • See Conclusion on Page 2 ----->

    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.

    SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

    SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip

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