|By Maureen O'Gara||
|October 23, 2010 12:00 PM EDT||
A filing in the Neon v IBM mainframe antitrust case managed to get past the IBM censors, who have been sealing court documents willy-nilly in the name of confidentiality agreements.
Imagine not being allowed to know the grounds for Neon's motion for a partial summary judgment - and in Texas no less.
However, it seems we were right in betting that Neon Enterprise Software asked the federal court down there to rule that nowhere in IBM's contracts with its mainframe users does it say they can't run whatever workloads they want on the mainframes zIIP and zAAP specialty processors (SPs).
In a never-sealed reply in support of its motion in response to IBM's objections Neon's lawyer says in an opening paragraph bound to tickle a little smile out of the judge that "Neon's motion raised a simple question - are there any contractual limits on the workloads IBM customers can process on ZIIPs and zAAPs? If any IBM contract included such workload restrictions, IBM could have responded with a single page, and a single exhibit, showing where to find them. Instead IBM filed a cross-motion, a further 14-page statement of facts, a collection of proposed parol evidence, and four affidavits, including one in which IBM's counsel claims to need three dozen further categories of extrinsic material before he is fully prepared to argue the meaning of IBM's own contracts."
All Neon wants to know from the judge is whether or not IBM's customer contracts - in force last year when it introduced its zPrime software, which lets users offload whatever legacy DB2, CICS, IMS, TSO/ISPF and batch workloads they want onto their SPs and run them free of IBM's notoriously exorbitant monthly fees - categorically prohibit them from doing so. It'll deal with how later.
Neon alleges that IBM's vaunted legal staff was asleep at the switch when they wrote IBM's contracts and created a multibillion-dollar loophole Neon and its would-be legion of customers mean to exploit. By contrast, IBM closed the loophole when it introduced the IFL processors that run Linux and clearly said they "may be used only to support Linux workloads and may not be used for any other purposes."
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