SCO vs. IBM Trial Date Set for 2007

Judge sets Feb. 26, 2007, as the date for the case to go to jury trial.

If you thought that the SCO vs. IBM case was on its last legs, think again.

In the latest chapter of the case, Judge Dale Kimball of the U.S. Federal District Court in Salt Lake City, set Feb. 26, 2007, as the date for the jury trial.

Kimball also ruled that SCO can call IBMs chairman and CEO, Samuel Palmisano, in for deposition. This means Palmisano will have to answer questions under oath concerning IBMs use of SCO IP (intellectual property).

The court found that "Mr. Palmisano could have unique personal knowledge related to the claims in this action." To minimize the disruption of IBMs operations, SCO has agreed to depose Palmisano in New York rather than require that he appear in the Utah courtroom.

In a pre-4th of July ruling, Kimball also ruled that SCO not be allowed to amend its case to include any further claims about SCOs Unix IP in IBMs AIX on Power operating system.

"To permit the proposed amendment would expand this already sizable and complex litigation and would serve only to delay its resolution," wrote Kimball.

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"Furthermore, SCO has twice amended its Complaint during this litigation, and the deadline for seeking leave to further amend has long-since passed. SCO has not demonstrated the extremely compelling circumstances required by this courts June 10, 2004 Order," Kimball said.

Stephen Fronk, an attorney with Howard Rice Nemerovski Canady Falk & Rabkin, a San Francisco-based law firm, said the order "suggests that the court has become frustrated with SCOs efforts to drag out the discovery process."

"First, the court denied SCOs motion to again amend its complaint … to add a claim that IBMs distribution of AIX for Power infringes SCOs purported Unix copyrights," said Fronk.

Then, "the court stated that SCO either knew or should have known of this alleged conduct at the time it filed its original complaint, he said.

Kimball also gave attorneys a deadline of Dec. 22, 2005, to "disclose with specificity all allegedly misused intellectual property."

This means, Fronk explained, that "the court has drawn a line in the sand" regarding the date by which SCO must tell the court exactly what "SCO material … IBM is allegedly misusing."

"The court has before ordered SCO to make such a disclosure, in response to which SCO has responded that it could not perform the required code comparisons without access to more discovery from IBM. Evidently, the court has not bought SCOs argument," said Fronk.

To Fronk, it appears that "given the courts apparent frustration with SCO and the ongoing discovery and pleading battles in the case, it appears that the court will not tolerate a departure from the Feb. 26, 2007, trial date."

"Of course, no trial will be necessary if the claims of the parties are resolved earlier," Fronk said.

Neither company, though, has shown any signs of looking for a resolution outside of the courtroom. In addition, SCO has maintained that it has the financial resources to see the legal battle to its bitter end.

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