Xinuos - It's deja vu all over again

swmech Veteran Member Posts: 150	Xinuos - It's deja vu all over again Apr 1, 2021 18:56:57 GMT Quote Select Post Deselect Post Link to Post Member Give Gift Back to Top Authored by swmech on Apr 1, 2021 18:56:57 GMT www.itpro.co.uk/software/linux/359110/xinuos-sues-ibm-for-patent-infringement

charlieturner Veteran Member Above ground, and still breathing. Posts: 37	Xinuos - It's deja vu all over again Apr 1, 2021 23:15:51 GMT Quote Select Post Deselect Post Link to Post Member Give Gift Back to Top Authored by charlieturner on Apr 1, 2021 23:15:51 GMT Steven J Vaughan Nichols had an article about it on zdnet.com and theregister.com had it, too. My jaw bounced when I read that this morning.

swmech
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Xinuos - It's deja vu all over again Apr 2, 2021 20:10:13 GMT

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Authored by swmech on Apr 2, 2021 20:10:13 GMT

And a much more useful article with a helpful summary timeline (since, let's face it, it's been just a little while...) from Jim Salter at Ars Technica.

"The astute reader will note that although SCO v. Novell is ruled on, appealed, affirmed, appealed once more, and finally affirmed in 2011, SCO v. IBM was still ongoing in 2011, when Xinuos (then UnXis) purchased SCO's intellectual property. That zombie lawsuit is—beggaring all belief—still running today... and now, an extremely similar lawsuit joins it from Xinuos, whom you'll remember owns the remainder of the SCO Group."

I'd take issue with the description of the suit as "still running," as it's been a while since it moved at all. Other than that, though, the article seems to sum it up well.

I don't normally go into article comments very much, but there are a ton of them on that article and the tone is overwhelmingly against Xinuous. As it should be, IMNSO.

Last Edit: Apr 2, 2021 20:14:00 GMT by swmech

swmech
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Xinuos - It's deja vu all over again Apr 5, 2021 20:03:20 GMT

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Authored by swmech on Apr 5, 2021 20:03:20 GMT

And from Christine Hall at ITProToday (www.itprotoday.com/linux/sco-successor-xinuos-files-lawsuit-against-ibm):

In 2011, Xinuos, then UnXis, a company formed specifically to buy SCO's Unix software assets (which by then hadn't been updated for more than four years), placed a $600,000 bid for the company and won against a single opposing bid of $18.

Although the lukewarm corpse of SCO would continue to attempt to revive its case against IBM through a series of appeals as recently as 2017, the sale of its intellectual property assets to to Xinuos effectively put an end to the threat against IBM and Linux.

In 2016, Xinous's CEO Sean Synder said, "We are not SCO. We are investors who bought the products. We did not buy the ability to pursue litigation against IBM, and we have absolutely no interest in that."

So what has changed in five years?

Xinuos insists it's because IBM and Red Hat have conspired to unfairly tilt the competitive playing field in their favor, and not because time has passed their product by.

That "single opposing bid of $18" should probably have been their first clue. I'm left with the reaction of "and here we go all over again..."

Last Edit: Apr 5, 2021 20:03:39 GMT by swmech

swmech
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Xinuos - It's deja vu all over again Jun 1, 2021 19:24:20 GMT

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Authored by swmech on Jun 1, 2021 19:24:20 GMT

At some point recently Steven J Vaughn Nichols' article (here) was updated with IBM's response. From the article:

IBM spokesperson Doug Shelton responded, "Xinuos's copyright allegations merely rehash the stale claims of its predecessor, whose copyrights Xinuos purchased out of bankruptcy—and have no merit. Xinuos's antitrust allegations, brought against IBM and Red Hat, the world's largest open-source company, similarly defy logic. IBM and Red Hat will aggressively defend the integrity of the open-source development process and the inherent choice, and thus competition, that open source fosters."

Any further updates, if any, have been beneath my radar. I'm starting to suspect that Xinuos wanted to get a feel for the water and found it a little warm for their liking.

swmech
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Xinuos - It's deja vu all over again Jul 29, 2021 19:50:26 GMT

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Authored by swmech on Jul 29, 2021 19:50:26 GMT

I've not heard anything new about this recently, so I thought I'd go check the courts. The case is 3:2021cv00031 (PACER login needed) in the District Court of the Virgin Islands, before US Magistrate Judge Ruth Miller. The case is still active, with the most recent filings on PACER being on 7/28 (yesterday, as I write this). The currently-open issues seem to be IBM's motions for a change of venue to the Southern District of New York (understandable...), and to dismiss for failure to state a claim, both of which are awaiting responses (due 7/28) from Xinuos.

Screen capture of current filings at www.dropbox.com/s/1qjujt7fneqa8f1/xinuos_filings.png?dl=0.

Last Edit: Jul 29, 2021 20:12:54 GMT by swmech

swmech
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Xinuos - It's deja vu all over again Mar 1, 2022 20:38:45 GMT

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Authored by swmech on Mar 1, 2022 20:38:45 GMT

There's been NOTHING in the news (no big surprise there), so I went back out to Pacer to take a look. Sheesh. This one's another yawner. From the latest order in the case (from 2021/12/17) the whole change of venue question has yet to be decided:

The parties were before the Court on December 16, 2021 with respect to several

outstanding motions. There is a pending motion for change of venue [ECF 41]. Notwithstanding

that motion, which is pending before the District Judge, plaintiff wants to have a Rule 16

conference scheduled and to do some limited discovery. [ECF 58]. Defendants oppose that

motion and seek to stay the matter until the venue issue is decided. [ECF 60]. The parties

discussed these motions, and the Court determined that some additional briefing would be helpful.

Accordingly, the premises considered, it is ORDERED:

1. Defendants may submit additional support for the requested stay, not to exceed 10

pages, on or before January 7, 2022.

2. Plaintiff may respond to that submittal, not to exceed 10 pages, on or before January

12, 2022.

I didn't dig into what they're arguing about, my Pacer bill is close to actually costing me something at this point (sorry).

Screen clip of latest filing status is on Dropbox. Not a lot of useful info there, I know.

Last Edit: Mar 1, 2022 20:39:05 GMT by swmech

swmech
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Xinuos - It's deja vu all over again Aug 18, 2022 21:11:43 GMT

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Authored by swmech on Aug 18, 2022 21:11:43 GMT

I just checked Pacer, and there's no activity since April 26, when Judge Ruth Miller issued an order on a stay of discovery until the transfer of venue request is decided (IBM requested the stay, Xinuos opposed it). The 7-page opinion is on my Dropbox (if somebody wants it elsewhere please feel free...).

The general tenor of the opinion seems to say (to me, at least) that things don't seem to be going well for Xinuos. From that opinion document (and yes, these lack context, I know...)

[p. 4] The Court finds that plaintiff has not identified—other than general concerns about delay—

any undue prejudice to it that would attend a limited stay pending a decision on IBM and Red

Hat’s motion. The issues plaintiff identifies are no different in kind or quantity than the risks

present in all litigation that is not otherwise expedited

and

[p. 6] ... Moreover, the Court

notes that in addressing the source code arguments, plaintiff steadfastly avoided being any more

specific about what the source code discovery would entail, or what source code is actually sought.

That last sounds - well, familiar, somehow.

Last Edit: Aug 18, 2022 21:12:48 GMT by swmech

swmech
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Xinuos - It's deja vu all over again Nov 15, 2022 23:21:33 GMT

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Authored by swmech on Nov 15, 2022 23:21:33 GMT

Somewhat to my surprise, my news watcher just popped up with an update on this. The article is behind a paywall so I can only see the very beginning of it, but according to law360.com:

A U.S. Virgin Islands district court judge has sent to a New York federal court a software company's suit accusing IBM of ripping off code for server operating systems, finding various factors weighed in favor of the transfer...

That company, of course, is Xinuos, who sued IBM and then moved to the Virgin Islands and requested a transfer of venue there. PACER records two documents from yesterday (2022/11/14), the first a 21-page memorandum addressing that change of venue. It concludes:

Although the Court finds venue is proper in this forum, after carefully weighing the

Jumara factors, the Court finds that the only factor in favor of maintaining the venue in the

Virgin Islands is Plaintiff’s choice of forum. Consequently, the Court is persuaded that the

convenience to the parties and witnesses and the interest of justice weigh overwhelmingly

in favor of transfer to New York. Accordingly, Defendants’ motion to transfer venue is

granted. Therefore, the Court will, pursuant to 28 U.S.C. §1404(a), transfer this case to the

United States District Court for the Southern District of New York.

An appropriate Order follows.

The second document is an order concluding:

BEFORE THE COURT is Defendants International Business Machines (“IBM”) and

Red Hat, Inc.’s (“Red Hat”) (Collectively known as “Defendants”) Motion for Transfer of

Venue filed on June 7, 2021. (ECF No. 41.) Plaintiff Xinuos filed a response on July 28, 2021,

ECF No. 51, to which Defendants filed a reply on August 11, 2021. (ECF No. 56.). For the

reasons stated in the accompanying Memorandum Opinion of even date, it is hereby

ORDERED that Defendants’ Motion to Transfer Venue, ECF No. 41, is GRANTED; it is

further

ORDERED that the Clerk of Court shall TRANSFER this case to the United States

District Court for the Southern District of New York; it is further

ORDERED that following transfer, the Clerk of Court shall CLOSE this case.

Now we get to see if Xinuos will pursue this in IBM's back yard.

sk43999
Member

Posts: 41

Xinuos - It's deja vu all over again Nov 16, 2022 3:42:40 GMT

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Authored by sk43999 on Nov 16, 2022 3:42:40 GMT

I logged in to my PACER account and found that the Memorandum (which is the important document) is available for free. I used my RECAP plugin to upload it to courtlistener, so you can also get it from there. However, the order itself is only available for the extortionist amount of $0.20 Sorry, no. So I accessed the order in the linked dropbox file (thank you law360 or whever deserves credit) and discovered that the length of the list of attorneys in this case exceeds the length of the order itself. Sadly, that is a telltale sign of decay of our society. Form over substance. The decline and fall of the Roman Empire comes to mind.

swmech
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Posts: 150

Xinuos - It's deja vu all over again Nov 16, 2022 21:01:58 GMT

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Authored by swmech on Nov 16, 2022 21:01:58 GMT

ROFL - aye, the memorandum was free, but I wasn't able to find it published outside of PACER yet. So I pulled both of them (paying the extortionate $0.20, you can pay me back later) and put them on Dropbox. Thanks for putting it up on courtlistener, I've no idea how to do that.

Instead of saying that the order concluded with the quote above, I could have saved some confusion that it consisted of the quote above.

I'm still curious if Xinuos is going to pursue this further. Gads, I hope not...

sk43999
Member

Posts: 41

Xinuos - It's deja vu all over again Nov 17, 2022 1:00:28 GMT

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Authored by sk43999 on Nov 17, 2022 1:00:28 GMT

> Thanks for putting it up on courtlistener, I've no idea how to do that.

I use the RECAP plugin, which is available here: free.law/recap
Uploads actually go to the RECAP archive, which I imagine is where courtlistener fetches them from.

swmech Veteran Member Posts: 150	Xinuos - It's deja vu all over again Nov 30, 2022 20:43:39 GMT Quote Select Post Deselect Post Link to Post Member Give Gift Back to Top Authored by swmech on Nov 30, 2022 20:43:39 GMT Per an English version of an article on Heise, the case has a new file number in the NY courts There the procedure receives Xinuos v. International Business Machines & Red Hat a new file number: 1: 22-cv-09777.

sk43999 Member Posts: 41	Xinuos - It's deja vu all over again Dec 7, 2022 0:14:36 GMT Quote Select Post Deselect Post Link to Post Member Give Gift Back to Top Authored by sk43999 on Dec 7, 2022 0:14:36 GMT Here's a link where you can follow the action so far. Looks like the Virgin Island's docket was copied over verbatim and SDNY is just adding on to the end. www.courtlistener.com/?type=r&q=docket_id:65760456

Xinuos - It's deja vu all over again

Authored by swmech on Apr 1, 2021 18:56:57 GMT

Authored by charlieturner on Apr 1, 2021 23:15:51 GMT

Authored by swmech on Apr 2, 2021 20:10:13 GMT

Authored by swmech on Apr 5, 2021 20:03:20 GMT

Authored by swmech on Jun 1, 2021 19:24:20 GMT

Authored by swmech on Jul 29, 2021 19:50:26 GMT

Authored by swmech on Mar 1, 2022 20:38:45 GMT

Authored by swmech on Aug 18, 2022 21:11:43 GMT

Authored by swmech on Nov 15, 2022 23:21:33 GMT

Authored by sk43999 on Nov 16, 2022 3:42:40 GMT

Authored by swmech on Nov 16, 2022 21:01:58 GMT

Authored by sk43999 on Nov 17, 2022 1:00:28 GMT

Authored by swmech on Nov 30, 2022 20:43:39 GMT

Authored by sk43999 on Dec 7, 2022 0:14:36 GMT