SCO wants to revive its proposed Third Amended Complaint - the one it which it added Claim X, which would have alleged IBM improperly inserted the SVR4 Print Subsystem code from Monterey into AIX5. In its Opening Brief, SCO argues that Kimball abused his discretion in granting IBM's Motion [IBM-405} to narrow the scope of Counterclaim IX:
"The District Court Abused Its Discretion in Artificially Narrowing IBM's Counterclaim ..."
IBM's CC9 sought a declaration of non-infringement regarding AIX and was meant to be a mirror of SCO's Claim V, which accused IBM of copyright infringement for distributing AIX after SCO purportedly terminated IBM's SVRX licenses. However, it was worded in such a way that SCO wanted it to be interpreted as covering ANY copyright infringement claim, including its proposed Claim X. IBM's motion asked Kimball to limit CC9 to cover just the alleged post-termination infringement. Kimball granted the motion. At that point, SCO could not assert that its new claim was compulsory, and Kimball denied SCO's motion to amend its pleadings.
SCO now wants the Tenth to rule that Kimball abused his discretion in granting CC9. However, there is a small problem. SCO isn't actually asking the Tenth to reverse Kimball's ruling on appeal. The reason is that SCO already stipulated to dismissal of the counterclaim in [IBM-11130]:
"SCO agrees that the Novell Judgment resolves IBM's two counterclaims for a declaration of non-infringement of copyrights."
There is no way by following SCO's logic that the Tenth can restore the case to a sane state. If it agrees with SCO that CC9 should not have been narrowed, then it is the orginal, expansive version that was granted in [1130], and because of that, SCO is now foreclosed from pursuing its Claim X.