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Judge Says No to IBM's SCO Dismissal

IBM was dealt a temporary setback in its efforts to dismiss the SCO Group's lawsuit Tuesday, but the judge's comments in the matter suggest his patience is wearing thin on some of the motions.

U.S. District Court Judge Dale Kimball denied Big Blue's requests for a partial summary judgment on three motions involving SCO's claims of copyright infringement and breach of contract. SCO asserts IBM violated its Unix System V license by taking some of that code and using it to beef up the Linux kernel.

Kimball also denied IBM's request for a partial summary judgment on its claim for declaratory judgment of non-infringement, as well as a request to remove materials SCO used to refute IBM's partial summary judgment claims.

SCO officials were upbeat about the ruling. In a statement, the company said the recent court decisions bode well for a trial.

"We are pleased by the court's order denying without prejudice all three of IBM's motions to effectively dismiss SCO claims without a trial," the statement read. "Coupled with last month's ruling from the Magistrate Judge on discovery, we are now looking forward to proceeding with our case without delay and towards our day in court."

IBM officials were not available for comment at press time.

Not all the rulings went SCO's way, however. Kimball denied a motion by SCO to dismiss IBM's counterclaim that it did not infringe on SCO's copyright through its Linux activities. Originally, Kimball's ruling states, SCO sought dismissal on the grounds that a favorable ruling would be determined in a similar court case against AutoZone .

When the case was delayed, he further notes, SCO changed course and said IBM's counterclaim would unduly complicate the lawsuit.

In the ruling, Kimball stated that since SCO was prepared to litigate against AutoZone and other companies over the issue of alleged copyrighted code in Linux, "it is incomprehensible that SCO seeks to postpone resolution of this claim."

Kimball's ruling also denied requests for summary judgment without prejudice, meaning IBM can re-file the same motions once the discovery phase of the trial is complete.

The discovery portion of the trial, where both sides try to get as much information from the other to build a case, was originally scheduled to conclude Friday. Last month, Brooke Wells, a magistrate judge in the trial, ordered IBM to produce information on all its versions of AIX and Dynix, an OS developed by IBM subsidiary Sequent.

Kimball stated that while tempting, in the face of "complete lack" of actual evidence, granting a summary judgment on IBM's requests before discovery is completely finished would not survive an appeal. He did, however, have something to say about the disparity in the claims made by SCO to the public and what has been presented to the courts.

"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," he states in the ruling. "Further, SCO, in its briefing, chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights."

Because the case depends so much on forthcoming information, Kimball stated, both sides are barred from filing dispositive motions -- summary judgments, for example -- until after the close of the discovery phase of the trial or unless both sides agree the issue is ripe for decision.