Although the U.S. Court of Appeals dismissed Xinuos’s claim against IBM on August 10, the software company does not seem ready to accept the ruling.
According to The Register, Xinuos intends to ask the full court to reconsider the case. This could mark the final chapter in a legal battle with roots in the Unix world of the 1990s.
This involves what is known as an “en banc rehearing.” In such a proceeding, a party requests that a ruling by a panel of three judges be reviewed by a larger group of judges from the same court. Such requests are granted only in exceptional cases, such as when significant legal issues are at stake or when previous rulings within the jurisdiction conflict with one another.
Claim time-barred, court rules
This stems from the August 10 ruling by the U.S. Court of Appeals for the Second Circuit. In that ruling, the appellate court upheld an earlier decision by a federal district court in New York, which had dismissed Xinuos’s copyright claim against IBM.
At the heart of the matter is what IBM was permitted to do with code developed in the late 1990s as part of Project Monterey. Xinuos argued that IBM did not own the full rights to that technology but held only a non-exclusive license. By making parts of it available to Linux, IBM, according to Xinuos, had violated the terms of that license.
That line of reasoning failed to convince the judges. Xinuos attempted to frame the issue as a dispute over license terms, but the court said the claim ultimately revolves around ownership rights to the code. That distinction is important because of the statute of limitations. The dispute over those rights occurred so long ago that Xinuos can no longer pursue legal action.
Project Monterey
The case dates back to 1998. IBM and Santa Cruz Operation (SCO) launched Project Monterey then, along with Intel and Sequent, among others. The goal was to develop a Unix system that could run on multiple processor architectures.
However, the market evolved differently. Linux grew rapidly and also offered a Unix-like platform for a wide range of hardware. IBM shifted its focus to Linux and contributed technology to the open-source operating system.
That is where the legal conflict arose. Starting in 2003, SCO alleged that IBM had used Unix code in the process to which SCO could assert rights. The legal proceedings that followed would last for years and outlast several owners and legal successors of SCO.
One of those successors reached a settlement with IBM in 2021 worth $14.25 million; however, this did not resolve all claims.
Xinuos files new lawsuit
Xinuos, which had acquired parts of SCO’s Unix operations and intellectual property, filed a new lawsuit against IBM and Red Hat in 2021. The company brought both copyright and antitrust claims.
Little remains of that broad case now. The claims against Red Hat have been dismissed, and the antitrust portion has also been dropped. The copyright issue surrounding the Project Monterey code remained, but the court rejected it. The Second Circuit has now affirmed that decision.
This leaves, potentially, only the option of seeking review by a larger panel of the appellate court. The Register reports that Xinuos intends to file such a motion; however, the publication does not cite a public statement from Xinuos or a court filing.
Even if Xinuos files the motion, that does not mean the court will reconsider the merits of the case. First, the judges must decide that there are sufficient grounds to reexamine the earlier ruling. If the motion is denied, a legal battle that has been raging in various forms for more than twenty years over Linux and Unix appears to be coming to a near-definitive end.