IBM Responds to SCO's Motion Asking for Reconsideration ~pj

IBM has filed its response [PDF] to SCO's motion asking for reconsideration of the Court's order denying SCO's motion to reopen the SCO v. IBM case. I have it as text for you.

IBM tells Judge David Nuffer that it doesn't oppose reopening the case at all -- in fact it says it should happen. IBM has an proposed outline on how to proceed thereafter. Its plan differs from SCO's.

Rather than deciding all the still pending summary judgment motions filed five years ago immediately, IBM suggests a process that goes like this: First, toss out all the claims that the SCO v. Novell final judgment made moot, the ones SCO concedes are foreclosed. That would be almost all of them. I believe all that's left, if it is still viable, which I doubt, is SCO's unfair competition claim regarding Project Monterey and its tortious interference claim alleging that IBM interfered with SCO's market and business relationships. At least that's what SCO listed the first time it tried to reopen this case.

After that, IBM suggests it file a motion for summary judgment regarding its position on the impact of the Novell judgment, and if the court agrees, "it will be unnecessary for the Court to decide a number of the pending summary judgment motions to resolve these claims." If not, the parties will need to come up with a scheduling order, because there will likely be a need for further briefing, in that the pending summary judgment motions were filed years ago, and "the body of relevant case law has grown."

The Novell judgment, IBM further points out -- and this is the part that reveals why IBM doesn't mind a bit if the case is reopened -- did not resolve all of IBM's counterclaims:

For example, while the Novell Judgment strengthens IBM's counterclaims concerning SCO's campaign to create fear, uncertainty and doubt about IBM's products and services, it does not completely resolve all of those claims. Thus, the Court will need to address certain of the pending motions, which may also require supplemental briefing and argument.

IBM doesn't mention it here, but I recall that there is a counterclaim of copyright infringement related to the GPL. So a scheduling order is going to have to happen in any case. And finally, if SCO elects to pursue other matters it has mentioned before, the Court may need to decide those issues. IBM attaches as Exhibit A its 2011 filing, "IBM's Memorandum Responding to SCO's Request to Reopen", filed in response to an earlier attempt by SCO to reopen the case, and it suggests that the court proceed as described in that filing. That's also where SCO's other matters it may or may not elect to pursue are found, in paragraph 12, essentially some pending motions for reconsiderations of earlier judges' decisions that went against SCO.