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198 charges against IBM thrown out

But still face more than 100 more

A judge has thrown out nearly 200 claims of intellectual property violation filed against IBM by the SCO group on the grounds that it (SCO) didn't identify the alleged infringements in enough detail.

In a 39-page ruling last week, Judge Brooke Wells chastised SCO for its "willful failure" to identify exactly which parts of the software distributed by IBM allegedly infringe on SCO's intellectual property.

"SCO’s arguments are akin to SCO telling IBM 'Sorry we are not going to tell you what you did wrong because you already know'," Wells wrote, saying its actions were prejudicial to IBM.

IBM had asked for 201 of SCO's 294 claims of IP violation to be dropped before trial. After some clarifications, IBM continued to press for 198 claims to be dropped. On Wednesday, the judge threw out all but about a dozen of those claims - not based on their merits, she noted, but because of SCO's failure to specify for IBM the source code in question. Her order stemmed from an IBM motion to preclude SCO's claims from the case.

"Striking out such a large number was predictable in terms of what we've seen through this whole process, which is complete disability [on SCO's part] to produce evidence," said Gary Barnett, a UK-based software and intellectual property analyst with Ovum. "Undoubtedly it's bad for SCO's case, but it was pretty bad even before this happened."

SCO filed its lawsuit in 2003, arguing that IBM misappropriated portions of SCO's copyrighted Unix System V software code and contributed them to the Linux OS. IBM has denied any wrongdoing and questioned the validity of SCO's copyrights.

Representatives from SCO and IBM could not be reached for comment today. According to press reports, SCO has said it will continue to press its case and noted that it still has several claims against IBM that were unaffected by the judge's decision.

IBM will likely challenge those claims when the case comes to trial, Ovum's Barnett said. That's expected to happen early next year.

SCO had argued that it was sufficient for it to have identified the "methods and concepts" that it says were misappropriated by IBM. Judge Wells disagreed, saying SCO should have identified the specific source code as well.


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