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Maureen O'Gara

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SCO Watch

SCO Watch

A hearing is now scheduled for May 11 at 3 in the afternoon where Federal Judge Dale Kimball will decide whether to dismiss the SCO v Novell suit.

If it isn't dismissed, he will then decide on whether it should remain in the federal courts or be remanded to the state courts, which is where SCO originally filed its slander of title case against Novell.

Meanwhile, IBM is resisting SCO's notion of splitting off IBM's patent counterclaims against SCO into a separate case.

Hanging its hat on the summary judgment gambit it's trying, IBM told the court on Monday that the court doesn't have to decide right now whether to have more than one trial.

IBM argued that it's too soon to tell. "Because SCO has not yet responded in full to IBM's discovery requests," it said, "and only one deposition has been taken (of a third party)... it is too soon to tell for sure how much and which parts of the case can be handled by summary consideration... Only after discovery and pre-trial motion practice will the court be in a position meaningfully to determine which of the many possible trial plans best promotes fairness, reduces prejudice and promotes expedition and economy."

Anyway, it added, "splitting the patent and non-patent claims for separate adjudication probably is not the best way to proceed, especially if the court is disinclined to conduct more than two trials."

If the court buys SCO's logic, IBM said, we'd have trials on each of the patent counterclaims. Besides, "The patent claims are simply not as unrelated to the non-patent claims as SCO contends... If not resolved on summary judgment (as we expect)," IBM said, "IBM's patent claims are likely to present very few triable issues - issues that could easily be made a small part of a larger trial on non-patent issues."

IBM said it was willing to concede a "brief extension" of the discovery period to accommodate additional patent discovery, but really thinks that all discovery can be done within the current schedule without compromising the present 2005 trial date and that the patent issues won't need an additional 18 months of "immense discovery" like SCO contends.

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at) or paperboy(at), and by phone at 516 759-7025. Twitter: @MaureenOGara

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