SCO Wants to Delay Linux Trial with IBM

An official says the company wants to put off the trial for five months because of "delays in the discovery phase."

The SCO Group would like to see the trial date of its Linux copyright case with IBM moved from April 2005 to September 2005, but IBM says it wants no part of such a delay.

According to a story in the Deseret Morning News, based in Salt Lake City, each company is accusing the other of using stalling tactics.

"The current [trial] schedule is unreasonable," said Brent Hatch, an attorney for The SCO Group Inc., based in Lindon, Utah.

U.S. District Judge Dale Kimball will rule in a few days on SCOs request.

"SCO is requesting a scheduling change because of delays in the discovery phase," said Marc Modersitzki, public relations manager at SCO.

The case has been complicated by IBMs counterclaims of patent violations by SCO.

Outside of the IBM case, SCO is also involved in trying to show that it, and not Novell Inc., owns the intellectual property (IP) rights to Unix.

Those rights are core to SCOs claims that IBM took Unix IP and placed it into Linux.

/zimages/5/28571.gifClick here to read an interview with SCO CEO Darl McBride on why he thinks the company can win its case.

In a rare victory, SCO recently successfully resolved a dispute with BayStar Capital Management LLC, a major financial backer.

BayStar executives had objected to SCO continuing with its Unix business and not focusing all of its time and attention on its Unix IP litigation.

Although each side has accused the other of delaying the case, Michael R. Graham, an intellectual property attorney and partner with Chicago-based law firm Marshall, Gerstein & Borun LLP, said he doesnt see anything out of the ordinary.

"A request for a delay of up to five months would not be unusual and should not be unanticipated by either SCO or IBM. The patent counterclaims raise new issues, which require entirely different types of discovery and pleading than do the copyright claims," Graham said.

"Furthermore, although dividing the action could lead to more expeditious handling of the original copyright and contract claims, it is possible that the patent claims affect the rights claimed by SCO in fundamental ways," he added.

But IBM attorney David Marriott said delaying the trial would favor SCO because SCOs alleged damages would grow over time, according to the Deseret Morning News story.

With so many overlapping issues, Graham said he thinks its best for everyone involved if the issues are decided in unison.

"It is probably preferable to both parties—and to others whose use of Linux could be affected by the outcome of this case—to have all the issues decided together. This case is too important to the Linux and open-source communities to be hurried," he said.

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