SCO Again Asks Court To Reconsider Dismissal Of Claims Against IBM

Despite the fact that a judge earlier this year threw out 187 of its claims of breach of contract and copyright infringement against IBM, and despite another judge in November refusing to overturn that decision, SCO isn't giving up.

The company has filed a new motion asserting that the court's November decision was procedurally and substantially flawed, according to documents filed last Thursday in the U.S. District Court for Utah. SCO argues that "the rules of procedure do not support such a result under the circumstances of this case."

In its original suit, filed in 2003, SCO claimed that IBM's contributions to the open source Linux community are illegal because those contributions contain code that belongs to SCO.

Utah District Court magistrate judge Brooke Wells in June dismissed 182 of the company's 294 claims. Judge Wells said the dismissed claims lacked the specificity needed to hold up in court. She said SCO, in most instances, failed to identify which lines of code IBM is alleged to have stolen. Wells left intact more than 100 of SCO's claims, but most observers felt the decision effectively gutted the case.

U.S. District Judge Dale Kimball upheld Wells' ruling in a decision handed down Nov. 29.

In its filing last week, however, SCO asked Kimball to reconsider his decision to uphold the ruling. In addition to a procedural complaint, SCO cites "new evidence not in the original record." The company believes such evidence would be revealed if it's allowed to reopen the deposition of several IBM programmers that were interviewed earlier in the case. SCO claims such a deposition would defeat Wells' and IBM's arguments that its claims lacked specificity.

"We submit that such supplementary testimony is likely to expose the central flaw at the heart of IBM's motion -- that the information (version, file, and line) of stricken technology items is either not known to individuals who disclosed such technology (and thus not reasonably known to SCO), or, in fact, is already known to IBM, who cannot then possibly sustain a claim of prejudice justifying striking these items from SCO's case."

IBM in September asked the court to dismiss the suit in its entirety.