May 1, 2003 10:53 AM PDT

IBM denies charges of Unix theft

IBM has denied SCO Group's allegations that it misappropriated Unix trade secrets, but Big Blue isn't giving hints about what its eventual strategy will be for battling the lawsuit.

In an 18-page filing in U.S. District Court in Utah, IBM said SCO Group's four formal charges are unfounded, denied the truth of dozens of SCO allegations, and accused SCO of trying to slow the work of the open-source community.

SCO sued IBM in March, alleging that Big Blue had misappropriated SCO's Unix trade secrets by moving them into the open-source Linux operating system. SCO Group, a Lindon, Utah-based company still in the process of changing its name from Caldera International, is the inheritor of the Unix intellectual property initially developed at AT&T.

"While IBM has endeavored to support the open-source community and to further the development of Linux, IBM has not engaged in any wrongdoing," Big Blue said in its response, filed Wednesday. "Contrary to Caldera's unsupported assertions, IBM has not misappropriated any trade secrets; it has not engaged in unfair competition; it has not interfered with Caldera's contracts; and it has not breached contractual obligations to Caldera."

IBM also accused SCO of trying, in the suit, to interfere with the open-source community, which develops Linux and many other software packages. SCO is seeking "to hold up the open-source community (and development of Linux in particular) by improperly seeking to assert proprietary rights over important, widely used technology and impeding the use of that technology by the open-source community," IBM said.

But IBM's strategy for battling the lawsuit, which seeks more than $1 billion, doesn't make an appearance in Big Blue's filing.

"It's in some senses disappointing because we would have liked to have learned what IBM's true defenses are going to be," said John Ferrell, an intellectual property attorney at Carr & Ferrell.

SCO, too, was disappointed.

"Our attorneys were underwhelmed with the response, given that (IBM) got a top law firm...and they had 60 days to respond," SCO Chief Executive Darl McBride said in an interview. The paucity of information is part of an IBM strategy, he added. "Anytime they can sweep things under the rug, they're more inclined to do that. I believe that keeping this off the radar screen is probably one of their big objectives."

Ferrell said he was expecting to see IBM raise at least one of three defenses: That there was no misappropriation because the software was already incorporated in IBM technology; that IBM received the technology from others; or that technology incorporated in IBM's version of Unix, called AIX, was previously disclosed by others.

IBM did make one argument defending its use of Unix intellectual property, saying it has the "irrevocable, fully paid-up and perpetual right to use the 'proprietary software' that it is alleged to have misappropriated or misused."

That claim is one SCO's senior vice president of operating systems, Chris Sontag, labeled as "hogwash" back in March. Sontag, the head of the SCOsource effort to wring more revenue from the company's Unix intellectual property, said IBM has a perpetual right to the software, but only as long as it abides by terms of a contract SCO said it violated.

IBM said it's seeking a jury trial for the case, but Ferrell said a court date for trial likely won't come for about two years. Federal District Judge Dale A. Kimball is hearing the case.

In the meantime, Ferrell said, the companies likely will file various motions--to, for example, keep proprietary evidence secret; change venues; and wrangle out how to proceed with the discovery process, under which lawyers interview people involved in the case.

SCO Group emerged from a long, complicated Unix history. AT&T began developing the Unix operating system more than 30 years ago. The software became the basis of Solaris at Sun Microsystems, HP-UX at Hewlett-Packard and AIX at IBM, among other Unix versions. AT&T sold the software to Novell, which in turn sold it to a company called Santa Cruz Operation, now called Tarantella.

In 2001, Linux seller Caldera bought the Unix software from the Santa Cruz Operation, and in 2002, Caldera began the process of renaming itself SCO Group to reflect the fact that most of its business came from the SCO products, UnixWare and OpenServer, not from Linux.

 

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