World of Apple

In reminder, there is a whole constellation of pending actions involving Apple and Eastman Kodak. Here is a summary list (with details on status to follow):

• International Trade Commission Investigative Report Number 337-703, Eastman Kodak v. Apple. Complaint involves patent no. 6,292,218 (“the ’218 patent’”).
• International Trade Commission Investigative Report Number 337-717, Apple v. Eastman Kodak. Complaint involves patents identified as 6,031,964 (“the ‘964 patent’”) and RE 38,911 (“the RE ‘911 patent’”).
• Western District of New York Case No. 6:10-CV-06021-MAT. Eastman Kodak v. Apple. Complaint involves U.S. Patent No. 6,292,218 (“the ‘218 patent’”) and U.S. Patent No. 5,493,334 (“the ‘335 patent’”).
• Western District of New York Case No. 6:10-CV-06022. Eastman Kodak v. Apple. Complaint/Counterclaim involves U.S. Patent No. 5,226,161 (“the ‘161 patent’”); U.S. Patent No. 5,421,012 (“the ‘012 patent’”); U.S. Patent No. 5,303,379 (“the ‘379 patent’”); U.S. Patent No. 5,341,293 (“the ‘293 patent’”); U.S. Patent No. 5,898,434 (“the ‘434 patent’”); U.S. Patent No. 5,634,074 (“the ‘379 patent’”); U.S. Patent No. 5,072,925 (“the ‘925 patent’”); and, U.S. Patent No. 5,920,726 (“the ‘726 patent’”).
• Northern District of California Case No. CV 10-01609 JCS . Apple v. Eastman Kodak. Complaint involves U.S. Patent No. 6,031,964 (“the ‘964 patent’”) and U.S. Patent No. RE38,911 (“the RE ‘911 patent’”).

International Trade Commission Investigative Report Number 337-703, Eastman Kodak v. Apple and Research in Motion. Complaint involves United States Patent No. 6,292,218 (“the ’218 patent’”).

Construction of the claim terms is the present controversy as well as whether or not a decision on claim terms is properly subjected to the prior Motions for Summary Judgment which were granted in part and denied in part.

RIM and Apple are arguing that they are properly subject to these Motions and to the Initial Determination of the Commission under Commission Rule 210.18.

This part was of interest in RIM’s Brief on the Issues Under Commission Review of the Initial Determination on Claim Construction:

Kodak turns to district court practice arguing that ruling on claim construction via summary determination runs afoul of Fed. R. Civ. P. 56 and that the Federal Circuit does not want interlocutory appeals of claim construction.

But Kodak misses the point for two reasons. First, the Commission operates under the Commission Rules, not the Federal Rules. Second, there is no possibility of interlocutory review of the Commission’s determination on claim construction by the Federal Circuit.

Fed. R. Civ. P. 56, which states in pertinent part that:

A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim.

Fed. R. Civ. Pr. 56(a)(emphasis added). This is entirely different from Commission Rule 210.18 which provides that a party may move for summary determination “upon all or any part of the issues to be determined in the investigation.” Commission Rule 210.18(a). As discussed above, and unlike Fed. R. Civ. P. 56, Commission Rule 210.18 (a) is not limited to a claim, but broadly encompasses any issue or part thereof to be determined in the investigation.

RIM goes on to argue that an appeal would not be possible until there was a final Commission decision on the whole matter and that decisions on claim construction do not automatically dispose of the whole matter and would not do so in this case.

Arguing against this, the Office of Unfair Import Investigation’s Brief states:

Rule 210.18 concerns “issues to be determined” and in OUII’s view, claim construction is but a necessary underpinning to the resolution of certain issues such as infringement, invalidity, or the technical prong of the domestic industry argument (“technical prong”).  Standing alone, claim construction does not appear to fall within the scope of “issues to be determined” under the rule.  In particular, a claim construction ruling does not resolve any of the issues involved in a violation determination, nor does it result in one party successfully proving issues such as infringement, invalidity, or the technical prong.  Thus, following a ruling on claim construction there is no clear aggrieved party.  From the Judge’s and Commission’s perspective, the litigating parties remain in the same position as they were prior to a claim construction ruling.

I can see the validity of both arguments. However, the OUII seems to be, on the whole, straining at technicalities. I believe a better analogy would be civil law practice in the area of declaratory judgments in which the rights and status of the parties, including construction of contract terms (which seems to be a fair analogy), can be the subject of motions for summary judgment. While a final adjudication of the whole controversy, or even the whole of a part of the controversy, it is not quite correct to say that the status of the parties remains the same. The one who successfully petitions for a favorable claim construction has a distinct legal victory.

The OUII also states that there is no evidentiary hearing in a summary disposition hearing which is necessary for an issue such as this, without explaining exactly why this is so. Briefs and oral arguments are allowed as well as supporting affidavits, so honestly, that parting shot seems to be a bit of fluff.

The terms under dispute include:

• Motion Processor
• Still Processor
• At Least Three Different Colors
• Capture Button
• Initiating Capture
• Each Captured Image Having A First Number of Color Pixel Values Provided In a First Color Pattern
• Captured Image
• First Number of Color Pixel Values
• First Color pattern

Apple noted in its Response to Notice of Commission to Review Initial Determination:

While the Chief ALJ did not adopt verbatim the constructions proposed by Apple (or the other parties), Apple support affirmance of the construction in the 703 ID on all but one term: “capture button.”  Kodak and the Staff have already attacked the Chief ALJ’s construction of “motion processor,” “still processor, “ “at least three different colors,” and “initiating capture…” in their petitions for review by the Commission.  Apple’s response to Kodak’s and the Staff’s petitions for review illustrated why Kodak’s and the Staff’s criticisms of the Chief ALJ’s findings on those terms are without merit.

Also interesting is the dispute regarding the meaning of the term “button” as it would have been intended in 1994, when the patent term in question was authored.  At that time, buttons were “mechanical elements that could be depressed or partially depressed.”  Thus, Apple is disputing that their touch screens are indeed “buttons” as intended by the inventors.  Further, the patent “specification consistently describes capture buttons as mechanical elements—it does not redefine buttons as a purely functional, generic user control.”

For those interested in the more minute details of the upcoming hearing, the following items contain Apple’s Witness List, Exhibit List, and Witness Summaries.

Respondent Apple Inc.’s Witness Summaries

Respondent Apple Inc.’s Pre-Hearing Statement

Additionally, this is the Initial Markman hearing determination decision which is the source of these latest wrangling.

International Trade Commission Investigative Report Number 337-717, Apple v. Eastman Kodak. Complaint involving patents identified as 6,031,964 (“the ‘964 patent’”) and RE 38,911 (“the RE ‘911 patent’”).

Apple had served a Subpoena for records upon non-party Zoran Corporation to which it was objecting. Although their objections were due by August 2, 2010, there are none in the records indicating that most likely an agreement was reached to limit the scope of production. Apple has also agreed to withdraw its Motion to Compel the depositions of Kodak witnesses Kenneth Parulski, David Woords, and Timothy Tredwell.

Apple and Kodak have agreed to participate in mediation in August, 2010. As with the above ITC disputer (337-703), claim construction is also at issue with Kodak submitting its proposed constructions and the filing of a joint statement of Apple and Kodak on agreed and disputed claim constructions.

A schedule is in place with the following significant dates:

• Fact Discovery Cut-off: October 20, 2010
• Expert Discovery Cut-off: November 3, 2010
• Dispositive Motion Deadline: November 30, 2010
• Pre-Trial Statements and Briefs: December 15, 2010
• Target Completion Date for Investigation: September 19, 2011

Western District of New York Case No. 6:10-CV-06021-MAT. Eastman Kodak v. Apple, involving U.S. Patent No. 6,292,218 (“the ‘218 patent’”) and U.S. Patent No. 5,493,334 (“the ‘335 patent’”).

Nothing new has transpired in this case since our last report here in which we summarized the proceeding which had thus far culminated in both parties stipulating to a stay of the matter on March 25, 2010, until such time as there is a final, unappealable decision in the relevant ITC action.

Western District of New York Case No. 6:10-CV-06022. Eastman Kodak v. Apple, involving U.S. Patent No. 5,226,161 (“the ‘161 patent’”); U.S. Patent No. 5,421,012 (“the ‘012 patent’”); U.S. Patent No. 5,303,379 (“the ‘379 patent’”); U.S. Patent No. 5,341,293 (“the ‘293 patent’”); U.S. Patent No. 5,898,434 (“the ‘434 patent’”); U.S. Patent No. 5,634,074 (“the ‘379 patent’”); U.S. Patent No. 5,072,925 (“the ‘925 patent’”); and, U.S. Patent No. 5,920,726 (“the ‘726 patent’”).

I had last reported that Kodak filed a Counterclaim to Apple’s Amended Counterclaim as new patents were introduced into the case at that time. Apple responded to the Counterclaims with general denials. An Agreed Protective Order was entered regarding the disclosure and use of discovery materials. What I found interesting in this order was the following,

16. MOCK JURORS
(a) A party may not disclose to mock jurors any original, as-produced materials or information (including, for example, documents, deposition testimony, or interrogatory responses) produced by another party designed as CONFIDENTIAL INFORMATION UNDER PROTECTIVE ORDER or CONFIDENTIAL BUSINESS INFORMATION CONTAINING HIGHLY CONFIDENTIAL-SOURCE CODE INFORMATION. A party may, however, disclose to mock jurors arguments and materials prepared by its outside counsel that are derived from CONFIDENTIAL BUSINESS INFORMATION UNDER PROTECTIVE ORDER, so long as the derivative materials do not include the as-produced information itself.
(b) Before hearing arguments or reviewing materials that were derived from confidential business information, each mock juror must sign an undertaking or agreement agreeing not to publicly disclose such arguments and materials and to keep such arguments and materials confidential.

It would be very interesting indeed to read the results of any mock jury research conducted in these sorts of cases. The tenor of this case is markedly different from the juvenile manner of Psystar in their disrespect of confidential work product in that both are legitimate companies respecting each other’s need to protect such investments, as opposed to two punks wanting a free ride. I know, I know, say how I really feel.

Northern District of California Case No. CV 10-01609 JCS . Apple v. Eastman Kodak, involving U.S. Patent No. 6,031,964 (“the ‘964 patent’”) and U.S. Patent No. RE38,911 (“the RE ‘911 patent’”).

A stay has been entered in this case until such time as a final, unappealable decision is reach in Apple’s parallel proceeding against Eastman Kodak Company in the U.S. International Trade Commission, entitled Certain Digital Imaging Devices and Related Software, Investigation No. 337-TA-717. Additionally, the case has been reassigned to a new Judge (still within the Northern District despite Kodak’s request to transfer the case to the Western District of New York) with an Order requiring a status update to be filed in August despite the Stay.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.

Hot on the heels of my last report, Psystar has filed its Reply Brief in response to Apple.

Copyright Misuse

Psystar asserts that copyright only governs copying and not restrictions on use. Even at first blush, this appears absurd. I cannot play a non-copied movie for a public audience at a theater. Psystar (in my opinion) deceptively spins Alcatel in claiming:

For all Apple’s attempts to distinguish that case, R. Br. at 35-37 — the only case about use of a copyright in an operating system to control the user’s choice of hardware, and thus the only case squarely on point – Apple must admit that the Fifth Circuit held that it was misuse to prevent a competitor from offering compatible, cheaper hardware for use with a copyrighted operating system.

Here is a link to the case. Read it for yourself. Psystar conveniently ignores the fact that the case deal with hardware components (replacement parts).

It pulls a similar sleight of hand with the Practice Management case. In that matter, the AMA tried to prohibit the use of competing medical codes, not to control the use of their own medical codes. Psystar remarkably tries to claim that this is even more damning to Apple. Huh? Once again, please go read the case for yourself.

Stifling Creativity

Of course Psystar denies Apple’s position that their copyright restrictions do not stifle creativity. But once again Psystar falls into dysfunctional thinking. Apple’s claim was that there is no dampening of creativity to create competing operating systems. Psystar claims that it stifles competition creativity in hardware systems that can run Apple’s work. But that is not the focus in determining copyright abuse.

Tying

At last! Psystar makes a relevant and accurate representation. It states that Triad (link to case) is distinguishable since the Triad software was never sold apart from the hardware while Apple does sell the operating systems separately and wants to control after-purchase use.

But then they straight into Oz:

(Page 10) Finally, it is worth taking a step back to look at a strange feature of Apple’s position. Apple admits that if it required OS X to be the only operating system that a user used on his Macintosh, then that would be copyright misuse. R. Br. at 34-35. But Apple denies that, if, instead of creating an exclusive operating system, it required that its operating system system be used exclusively on Macintoshes, that would be copyright misuse. It cannot be that misuse exists where a copyright owner tries to use copyright to make his copyrighted work exclusive, but not when he tries to use copyright to make an adjunct, uncopyrighted work exclusive.

No. No. No. Apple stated that if (and didn’t even state this on the pages cited by Psystar which say nothing of the kind) it required its buyers of OS X not to use other operating systems AT ALL (no mention was made of using them on a Macintosh) than THAT would be misuse. I have to wonder if there is a just an abysmal lack of reading comprehension or a blatant attempt to mislead the Court.

Scope of the Injunction

Psystar holds firm to its assertion that it didn’t need to accept the California Court’s invitation to examine Rebel EFI when it believed that the Court had no jurisdiction to do so since that issue was first-filed before the Florida Court. Psystar claims, “Apple’s discussion of the injunction misses this point entirely.” (Page 11) Huh? Apple addressed this specifically and at length (Pages 43 through 45).

Sealing Orders

Psystar clarifies that its basis to remove the sealing orders was that the information appeared in publications that Apple’s own experts admitted were authoritative. Since I don’t have access to all of the documents needed to assess this assertion, I cannot make a judgment. However, if the quality of analysis is similar to what came before, hope does not spring eternal.

Grammar Nazi nitpick: When filing a Federal Brief, one should know about the wonderful world of em-dashes.

The Florida Court has granted Apple’s request for a stay of proceedings pending the outcome of the Appeal. This is typical and expected. The Florida Court had not yet ruled on Apple’s Motion to transfer the Florida case to Judge Alsup in California. On the Appellate front, Apple has filed its Answering Brief as well as a Motion for Judicial Notice.

Answering Brief of Plaintiff-Appellee Apple Inc.

Unlike the other early filings in the Appeal, this item was not filed under seal. It is broken into three primary categories which I will follow in digesting the Brief. I remind the readers that Appeals are limited to mistakes of law or fact and thus are usually much more narrow than the issues in the underlying suit. For example, Psystar did not appeal the dismissal of its antitrust counterclaims that were originally alleged in the California case. Nor did it ever supply the California Court with the requested information for a determination to be made on the Rebel EFI product which was enjoined until Psystar could prove that its operation was substantially different from the issues ruled upon. Based upon this latter fact, Apple argues that Psystar has waived its right to ask the Appellate Court to remove Rebel EFI from the Injunction.

We do learn some details about Psystar’s sealed Opening Brief. Apple alleges:

Nonetheless, on the pretext of educating the Court regarding the technology at issue in this case, Psystar supplies a “Technical Addendum” with its opening brief. This document appears to be a veiled attempt to revive factual claims the district court has rejected and Psystar has abandoned on appeal. (Page 11 of Answering Brief)

Psystar has more veils than a harem girl.

Psystar now asserts that installation of Psystar’s bootloader and numerous kernel extensions is unnecessary to run Mac OS X on Psystar computers absent the existence of Apple’s TPM [technological protection measure]. Opening Br. At 27. But this claim is contrary to the unchallenged factual record. For example, even if Apple did not implement its TPM, Psystar would still be required to modify Mac OS X by replacing the bootloder and modifying certain Mac OS X kernel extension files to force the operating system to run on non-Apple hardware. (Page 15 of Answering Brief)

And we get this interesting graphic of Psystar’s Pirates R Us operation (Page 11 of Answering Brief):

The District Court Correctly Rejected Psystar’s Affirmative Defense of Copyright Misuse

Psystar does not dispute that it is a copyright infringer. Instead, its defense is that the infringed copyrights are per se invalid due to Apple’s copyright abuse. However, per se copyright abuse would be a novel doctrine in contravention of existing precedent. In fact, the Ninth Circuit itself rejected this theory in the case of Triad Systems Corp. V. Southeastern Express Co., 64 F.3d at 1337 (9th Cir. 1995). Unbelievably, Psystar is arguing that Apple also abused its copyright by suing Psystar in the first place, an act it describes as sham litigation,—despite the reality that Apple prevailed. Apple argues that if Psystar were correct then nearly any software licensing would be invalid and undermine long-standing laws, rights, and business relationships. It is well-established that courts have rejected findings of copyright abuse when proprietary software is limited to use on specific hardware as long as the creator does not prevent other parties from creating their own competing software—something Psystar has acknowledged that its lacks the talent to do. In fact, a copyright owner could refuse to let ANYONE use the protected work. In order to prevail on copyright misuse in general (not the even more radical theory of per se copyright abuse) Psystar would have to show that Apple used its copyrights to create an unlawful monolopy or to inhibit competition and creativity.

The cases relied upon by Psystar do not have a bearing in this case. First, in Practice Management Info. Corp. V. American Medical Ass’n, 121 F.3d 516 (9th Cir. 1997), the copyright owner extracted a promise that the consumer would abstain from using competing products regardless of any infringement on the copyrighted work. That is not the case here. In fact, Apple makes it easy to use competing operating systems with its Boot Camp feature. Second, in Alcatel USA, Inc. V. DGI Technologies, 166 F.3d 772 (5th Cir. 1999), Alcatel effectively prohibited the addition of any non-Alcatel peripherals or components to its systems. Of course this is also not the case here. Psystar, however, attempts to stretch the facts by claiming that the microprocessor cards in Alcatel are analogous to an entire Macintosh computer. Even if this were so, competing hardware exists, and more on point, the analogy is ridiculous. A more pertinent example would be after-market hard drive or memory.

When allegations of copyright misuse are grounded in tying software to another product, there is no misuse unless the copyright holder used the copyrights to limit competition in the market for the tied product. The market in this case has been ruled to be personal computers in general, and it is patently obvious that there is no lack of competition in hardware vendors. However, this can be overcome by a showing of market power being leveraged to harm competition. Apple may soon have to worry about this prong, but right now, its personal computers are still in the minority and in this matter, Psystar did not allege that Apple had market power in the relevant market as its theory of a separate market consisting of Macintoshes alone was shot down.

The District Court Correctly Enjoined Psystar’s Continuing Infringement and DMCA Violations

A lower court’s grant of Injunction can only be reversed based upon a showing of reliance upon an incorrect legal standard or clearly mistaken findings of fact. There is nothing in the record to show the Court misunderstood the facts or the law. Psystar cannot now allege a factual difference with its Rebel EFI product when it declined to produce such evidence to the Court granting the Injunction. Psystar attempts to claim that the Florida case is the “first-filed” for Rebel EFI but that is putting the cart before the horse. It was not products that were deemed unlawful in and of themselves, it was the infringing activity that was the basis of the California Court’s Injunction. If the infringing activity is similarly unlawful, it wouldn’t have to be re-litigated de novo each time Psystar conceived of a new parasitic product. Imagine the legal nightmare that would cause. No party could be assured of the final disposition of their rights. With Rebel EFI, Psystar admits in its Opening Brief that it is a continuation of the same infringing process ruled upon.Further, the Court properly enjoined infringing acts with Snow Leopard as it is a derivative work of Leopard in addition to the essential infringing activity being nearly identical.

The Sealing Orders Should Not be Vacated

Psystar claims that Apple’s TPM [technological protection measures] are already widely available so that sealing them is unnecessary. Apple counters that their trade secrets are not public and that the existence of websites which routinely speculate upon same does not deprive Apple of its rights. Apple does not acknowledge the validity of any of these speculations nor sanction them. The items sealed were narrowly confined to trade secrets and do not impeded upon the public’s ability to understand the case. There is one Order that Apple inadvertently submitted that was broader than the parties agreed. Psystar never brought this error to Apple or the Court’s attention and cannot sit upon such knowledge of a non-malicious mistake and attempt to play “gotcha.”

Apple Inc.’s Request for Judicial Notice

If a court takes Judicial Notice of something that means it will be accepted as fact without need for any further proof. This is commonly used for things such as a date falling on a certain day of the week or from nearly indisputable sources. This is within a court’s discretion. In this instance, Apple is asking the Court to take Judicial Notice of proceedings which are directly related to this matter and cites case law in which proceedings can be so introduced if they have substantial relation to the present matter. The cases which Apple is seeking to have recognized are the Florida District Court case and Psystar’s prior Bankruptcy case. I think this will likely be granted. The relevant filings from the California case are already before this Court.

It is unclear to me whether or not Psystar is allowed a rebuttal to this filing. If so, it should have been filed within seven days of the Answering Brief, which date has already expired. However, there are other relevant, and later dates, relating to Apple’s filing of the Answering Brief, so if a reply is forthcoming and allowed, it should appear any day.

As discussed here, Apple was due to file its reply to Psystar’s opening brief in the appeal. However, on June 15, 2010, the following docket entry is noted:

Filed clerk order (Deputy Clerk:CAG): The appellee’s motion for an extension of time in which to file the answering brief is granted. The answering brief is due July 8, 2010. The optional reply brief is due 14 days after service of the answering brief. [7372209] (AF)

It is expected that the entire Reply will be filed under seal, but we will check and let you know once it is filed.

There has also been activity in the Florida case as follows:

PAPERLESS ORDER SETTING STATUS CONFERENCE AND REQUIRING MEDIATION. ( Status Conference set for 7/21/2010 11:30 AM in Miami Division before Senior Judge William M. Hoeveler.)This conference will be held at Federal Courthouse Square, Courtroom 9, Ninth Floor, 30l North Miami Avenue, Miami, Florida. The parties shall prepare and file their joint scheduling report prior to the status conference. Within thirty (30) days from the date of this order, the parties shall select a certified mediator under Local Rule 16.2.B and shall schedule a time, date and place for mediation. In the event the parties cannot agree on a certified mediator, they shall advise the Clerk and the Clerk shall designate a certified mediator under a blind rotation system. Signed by Senior Judge William M. Hoeveler on 6/9/2010. (lcs) (Entered: 06/09/2010)

I would expect that at least one of the parties will request a Stay of this proceeding and requirement to mediate pending the outcome of the appeal.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.

As per the agreed extension between the parties, Psystar filed its Opening Brief with the Ninth Circuit yesterday. However, the entire thing was filed under seal. Here is the actual filing including the parameters of the Protective Order. Apple’s response is due June 16, 2010, but as per a letter from Attorney Camara included with the filing, Psystar would not oppose a reciprocal extension if Apple should require one. At this point, it is unknown how much of this case will actually be available for public review, but I shall stay on top of it and report back. I did find the following section of the Stipulated Protective Order of general interest as to the agreement of the parties dealing with the production of Software Code:

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As promised, I have taken a look at the suit filed on April 15, 2010 by Apple against Eastman Kodak. While Apple is sued all the time, it is actually relatively unusual for Apple to be the aggressor. Even in this instance, Eastman Kodak had previously filed several suits against Apple for various technologies used in the iPhone so that this suit, while affirmatively filed by Apple, appears to be ultimately defensive in nature.

Apple v. Eastman Kodak, Case No. CV 10-01609 JCS

I may be taking this somewhat backwards, but I am following the order of my interest. When I originally heard that Eastman Kodak was suing Apple, I yawned and though “get in line.” Then I heard that Apple was suing Eastman Kodak and my interest was piqued for several reasons. First, the suit I initially heard of wasn’t a true countersuit in which a suit against the original Plaintiff is filed by the Defendant from within the initial case similar to what happened in the Psystar matter. Apple in fact filed a separate suit in a separate venue in addition to countersuits filed in the initial matters. I wondered if other commentators were right that this was a transparent retaliatory move and if Apple was pulling a forum-shopping move, such as the one I criticized on the part of Psystar. Also, although I have spent most of my time in reporting on Apple legal matters in the case against Psystar, it is actually rather unusual for Apple to be the legal aggressor. Apple sends out scads of “cease and desist” letters, but they rarely initiate suit. Thus, for all of these reasons, my interest was engaged. So, coming full circle, this article will first examine the last case, i.e. the one filed by Apple in the Northern District of California, and then move on to the earlier ones.

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Here is the latest docket entry in the Psystar appeal:

04/30/2010 14 day oral extension by phone of time to file Appellant Psystar Corporation’s opening brief is granted. Appellant’s opening brief is due May 17, 2010. Appellee Apple Inc.’s answering brief due 06/16/2010. The optional reply brief is due 14 days after service of appellee’s answering brief. [7321225] [10-15113] (AT)

I had planned on working on digesting the brief for WOA readers this evening, but I guess I have the night off to play with my new iPad.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.

This case is about to get moving again with Psystar’s Opening Brief in their Ninth Circuit Appeal due on May 3, 2010.  The last significant event was Apple’s victory in its Motion for Summary Judgment before Judge Alsup in November 2009.  The transcript for that hearing is now public record, and a copy may be read here.  It is helpful at this point to briefly review the arguments of each side as presented orally at the hearing.  Both parties admitted that there were no disputed of issues of material facts as touched the reciprocal motions for summary judgment with regards to the subject matter at issue therein, to wit, allegations of copyright infringement and violations of the DMCA.  That is important as motions for summary judgment are basically a request by a party for the case, or a part of the case, to be determined by the Judge solely on issues of law.  If there are issues of disputed material fact, a Judge cannot decide as it then becomes a matter for the jury.   Many cases in the American court system are disposed of in full or in part in this manner.

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The appellate case is moving along with both parties having filed their mandatory Mediation Questionnaires. Other than both agreeing that mediation would be futile, the filings are pretty vanilla with the exception of the following unintentional humour (from Psystar’s filing):

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As its attorney had previously indicated, Psystar is appealing Judge Alsup’s Order effectively ceasing all of their operations. What is a bit surprising is that Psystar has also filed multiple Orders regarding the sealing of confidential documents. A copy of the docket entries may be found here, and the relevant portion of the filings detailing each Order appealed can be found here.

Although Psystar could raise the issue of Rebel EFI with Judge Alsup, it is unlikely that they will proceed any further until the Appeal is heard by the Ninth Circuit. Nothing new has transpired in the Florida case.

I wonder who paid the hefty filing fee of $455.00.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.