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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) Page 2

Update Note 10 Aug 03: The full 45-page IBM Answer and Counterclaim text, a 22-KB download, is available from the Resources Section at the end 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:

SCO's Punishment

Here is what IBM is asking the Utah Federal District Court to do to SCO:

WHEREFORE, counterclaim-plaintiff IBM prays that this Court enter judgment on the counterclaims in favor of IBM and against SCO:

(a) awarding IBM compensatory damages;

(b) awarding damages pursuant to 15 U.S.C. § 11 17(a);

(c) awarding IBM punitive damages;

(d) granting IBM treble damages pursuant to 35 U.S.C. § 284;

(e) granting IBM declaratory relief, ruling that SCO has violated IBM' s rights as outlined above;

(f) granting IBM injunctive relief, enjoining and restraining SCO and its affiliates, subsidiaries, officers, agents, servants, employees, attorneys, successors and assigns and all others persons acting in concert with them from further violating IBM's rights as described above, including in particular from (i) misrepresenting SCO's rights and IBM's rights to UNIX technology, such as that SCO can, will or has in fact revoked IBM's right to use UNIX; (ii) misrepresenting that IBM no longer has the right, authority and license to use, produce and distribute AIX and IBM's Linux-related products; (iii) publishing false and disparaging statements about AIX and IBM's Linux-related products; (iv) engaging in further acts of unfair competition; (v) claiming ownership rights over code made available under the GPLI (vi) collecting license fees with respect to code made available under the GPL and (vii) further infringement or inducement of infringement of the '746, '211, '209, '785 Patents;

(g) awarding IBM costs, expenses and reasonable attorneys fees pursuant to 35 U.S.C. § 285, 15 U-S-C- § 11 17(a), § 13-24-5 of the Utah Uniform Trade Secrets Act, and N-Y. Gen. Bus. Law § 349(h);

(h) awarding IBM pre- and post-judgment interest on the damages caused to IBM as a result of all wrongful acts alleged herein; and

(l) granting IBM such other and further relief as this Court deems just and proper, including costs, disbursements and reasonable attorneys' fees.

Summary and Conclusion

IBM's second attempt to answer SCO's charges, Defendant IBM' S Answer to the Amended Complaint and Counterclaim-Plaintiff IBM's Counterclaims Against SCO, is a marked improvement of its earlier Answer to SCO's original Complaint.

IBM's Answer and Counterclaim pretty much specifically admits or denies each and every material allegation of SCO's Amended Complaint -- hardly any of those wimpy, phony, and evasive claims of not knowing enough about Unix, Linux, and IBM's own business to either admit or deny an allegation. Hats off to IBM's legal team for that. Moreover, IBM now has properly set just about every issue of material fact in dispute. That should make it difficult, if not impossible for SCO to take a summary judgment based on the pleadings against IBM.

[Update Note 8 Aug 03 12:35 EDT: Whoops, apparently I overlooked a bunch of those evasive answers where IBM claims not to have sufficient information so as to form a belief as to the truth of an allegation. Sorry about that. More about this later after I finish analyzing IBM's Answer and Counterclaim. MA]

More importantly, in an excellent implementation of the warrior's creed that the best defense is a good offense, IBM has mounted a very strong counter-attack against SCO. IBM's legal team has laid out a strong set of counterclaims. Much if not all the SCO-McBride FUD (fear, uncertainty, doubt) might now be one heck of a backfire for SCO and McBride.

SCO is starting to find itself on the verge of being inundated by lawsuits against it. The Germans have successfully used legal actions to stop SCO-McBride FUD cold in Germany. Red Hat sued SCO earlier this week. Now IBM's Counterclaims are in effect another lawsuit against SCO.

What goes around comes around.

<---- Back to Page 1

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


Update 10 Aug 03:

The full 45-page IBM Answer and Counterclaim text, a 22-KB download, is available here. It is an OCR (optical character recognition) conversion from the original copy of IBM's Answer and Counterclaim multi-page TIF distributed to the press by IBM's PR people.

The FAX cover sheet has been removed and page-header references to the sender's phone number have been removed for privacy. Some other surplussage has been removed too. There are some typos. If you want an exact copy of the pleading then you should seek a TIF or PDF copy of the original document. Otherwise, this should be close. The TIF and PDF versions waste nearly 1-MB of bandwidth and hard drive space.

It took the better part of a day's time to proof the OCR and then to go through text document and correct remaining graphic to text spelling and formatting errors. So, this constitutes a derivative work and as such this derivative work is copyrighted.

You are free to use, copy in part or in whole, and redistribute this file. Provided that you attribute the source as and provide a link to this article

The OCR was made using Omnipage Pro (formally from Caere and now a ScanSoft product) on a MS Windows machine powered by an 300-MHz AMD K6 CPU. OminPage Pro is one of the best, if not the best, OCR program that I have tried.

MA -- 10 August 2003

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