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IBM cites SCO judge in latest SCO filings

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IBM has dispensed with traditional legal circumlocution and gone for the jugular with its latest court filings against The SCO Group.

IBM moved to have three of SCO's claims alleging fraud struck down. IBM argues that fraud allegations must be backed up in great detail, and give the defendant fair notice to prepare a defense.

"SCO may not properly accuse IBM of fraud in the hope that it may able to cobble together some evidence of alleged wrongdoing during discovery," argues IBM. "It is fair to assume," IBM adds, "SCO has no facts to support its affirmative defenses, but rather asserted them to" - and here IBM quotes a 1994 ruling 'launch a fishing expedition allowing [it] to embark on wide-ranging discovery upon a thimble-full of facts'".

IBM cited a Judge who ruled in a 2001 securities case that fraud allegations "should not be a pretext for the discovery of unknown wrongs". That Judge, sharp-eyed posters of Groklaw have spotted, is the same Hon. Dale A Kimball who will hear the Motion to Strike Affirmative Defenses, to which the filing is addressed.

A hearing for a Motion to Compel has been scheduled for December 5, prompting SCO to bring forward its quarterly earnings conference forward to December 3.

SCO has shown few specific examples of infringement in public. However, one court document cites hundreds of kernel files which have little in common except the word 'SMP', including reference to comments in code which has no symmetrical multiprocessing functionality at all.

For example in a comment in a header file Hans Reiser wrote "gods only know how we are going to SMP the code that uses them".

"SCO's analysis technique would appear to be
grep -r SMP $(kernel_dir), as reader Jonathan Sambrook points out,

"Oh would I like to make a court appearance regarding this one," said Hans Reiser on the ReiserFS mailing list. ®

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