The judge presiding over the SCO/IBM court battle has slammed SCO's failure to provide evidence against IBM as "astonishing". At the same time, district court Judge Dale Kimball denied SCO's motion to dismiss a key counterclaim by IBM. It looks as though the case may finally be coming to an end.

The latest court ruling filed by Kimball contains a lengthy discussion as to why SCO's motion has been dismissed and is related to non-action by the company.

"Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities," Kimball stated. "Further SCO, in its briefing, chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights."

Judge Kimball continued by stating despite the vast disparity between SCO's public accusations and its actual evidence, "or complete lack thereof, and the resulting temptation to grant IBM's motion", the court has determined that it would be premature to grant summary judgment on IBM's tenth counterclaim which states that IBM does not infringe on any of SCO's copyright through its Linux activities. IBM believes that some or all of SCO's purported copyrights in Unix are invalid and unenforceable. IBM's cross-motion was denied.

Director of IP law firm Open Source Law, Brendan Scott, said the key thing to take out of the judgment is that Kimball has made quite an express statement that SCO has failed to provide evidence. "Reading between the lines, Judge Kimball is saying SCO better get its act together and he's not happy with its case so far," Scott said. "IBM had to overcome a high hurdle and the judge has some sympathy for IBM's case."

Scott said the judgment is a blow to SCO, particularly to the perception of its chances of success. "The problem for SCO is that it has done a lot of accusing but has shown no evidence," he said. "SCO needs to show evidence and come up with something, especially in light of two years ago when it was saying it had evidence. Either it has it and for some reason is sitting on it or it is just hot air."

Scott believes the risk SCO is taking by not producing evidence is that the judge will end up declaring a summary judgment and throw the case out of court. "The best way for SCO to counter is to put its evidence on the table," he said. SCO has declined to comment.