Salt Lake City (UT) - A long and drawn out court battle over whether IBM misappropriated intellectual property related to the UNIX operating system in co-developing the core components of Linux - which had, from a sports fan’s standpoint, already been extended long past "triple overtime" - drew to an unexpected crescendo on Tuesday as Intel, a non-party to the case, filed a brief with the US District Court accusing plaintiff SCO Group of "unfair and untrue" accusations against Intel.

(A reader of ours kindly noted that we had misstated the sentence above, writing "IBM" in place of "Intel." We thank the reader and stand corrected.)

In a motion filed last 27 January, SCO, the holder of several UNIX-related patents originally granted to AT&T, stated that it had subpoenaed officials from Intel, Oracle, and The Open Group - holder of AT&T’s former UNIX trademark - asking them to appear for a sworn deposition that same day. None of the three companies showed up, says the SCO motion, even though in SCO’s words, "each of the three companies was given adequate notice."

"That statement is at best a half-truth," Intel’s lawyers responded, in a devastatingly harsh response filed last Tuesday. "It is true that Intel did not appear," Intel’s response goes on, "but it is false that Intel’s absence came despite ’adequate notice.’" The document goes on to explain that the company was "served" with its subpoena by fax on 12 January, two weeks prior to the 27 January court deadline for discovery of facts, requiring Intel representatives to appear for a deposition in Armonk, New York. According to Intel, it immediately objected in writing to SCO on several grounds, one being that the fax was not accompanied by a subpoena by mail.

Only on 26 January, the day before the deposition was scheduled - which is, incidentally, the same as the discovery cut-off date - did Intel receive by fax an amended subpoena, moving the location to Oakland, California, but asking that Intel’s representatives appear there the very next day. Intel immediately responded in writing, the company’s response claims, "objecting that its was unreasonable to expect Intel to comply with SCO’s requests on a few hours notice, and notifying SCO that Intel would not do so." Producing the documents SCO requested on less than 24 hours’ notice, Intel states it told SCO, "was simply impossible."

SCO’s motion seeks yet another delay in the proceedings, due to what the company describes as inability to provide certain facts that would have been uncovered through those depositions, by the 27 January court deadline. Had they followed the federal guidelines, SCO’s motion said, the three companies "should have filed a motion to quash or for protective order, which none of the three companies did."

But the technology law blog Groklaw, which has nearly devoted itself entirely to coverage of this case over the last few years, uncovered a motion to quash by lawyers for Oracle, though it was apparently filed on 27 January. In Oracle’s motion, the company claims it received SCO’s subpoena on 11 January, and had no time to prepare for a deposition just two weeks later. "A mere two weeks is not adequate time," says Oracle’s motion to quash, "for any counsel to identify the witnesses who would be required to testify."

But the majority of Oracle’s motion is devoted to the format of the subpoena it received, which it claims to be defective. A copy of the subpoena received by mail on 11 January, according to Oracle, states the deposition is to be held in Oakland, California. But a faxed copy received the same day, Oracle says, states the same deposition is to be held in Armonk, New York. Regardless of where the deposition is supposed to be held, states Oracle, SCO lists counsel who may be authorized to practice law in one area, but apparently not in the other. Further, Oracle points out, SCO’s team failed to fill in the little blank at the top of the subpoena, making it appear it was being issued in the "District of California" instead of the "Northern District of California."

"SCO should not be permitted to impose such slapdash discovery requests on nonparties at the very end of discovery," states Oracle’s motion to quash, "after it has had years to obtain the information in a more orderly fashion." Since SCO’s motion and Oracle’s were filed on the same day, it’s not clear which one attained the eyes of the court first.

Nevertheless, Oracle’s language did not rise to the level of Intel’s, which blasted SCO in no uncertain terms. "Why SCO waited until the eleventh hour to seek this discovery when discovery has been ongoing in the case for the past two years is unclear," the Intel filing states, adding that SCO had already been given many of the documents and facts the deposition purportedly sought, long ago. "Indeed, even if SCO had served Intel with a proper subpoena on its first attempt in mid-January, it would not have provided sufficient time to allow Intel to identify and prepare witnesses for deposition.

"Intel takes discovery obligations seriously," its document closes. "SCO’s attempt to blame Intel for creating SCO’s need for more time simply ignores the facts."

A spokesperson for The SCO Group officially declined an opportunity to comment for TG Daily.

(UPDATE : Since our originally filing of this story, a number of readers have written in to say that SCO Group holds no patents on UNIX at this time, only copyrights. This is indeed the official assertion of some, although SCO does license its UNIX patents for a fee to other companies, particulary Microsoft.)