On October 23, 2008, Apple filed its Reply Brief in Support its Motion to Dismiss Psystar’s Counterclaims. In its introduction, it argued precisely as I had suspected, to wit:

Psystar argues that its antitrust and unfair competition claims should proceed even though the allegations in the Counterclaims contradict its crucial assertion that there is a relevant product market limited to Apple’s own Macintosh Operating System (“Mac OS”), and even though the Supreme Court has significantly tightened the standard for pleading claims under the antitrust laws. Psystar argues that the Ninth Circuit permits antitrust claims alleging a “single brand” market to proceed, but fails to recognize that those cases are limited to rare circumstances involving “aftermarkets” not, as here, the primary market for a product. Indeed, courts have dismissed cases before discovery in which the claimant has asserted a single-brand primary market when, as in this case, such an allegation is “implausible.”

Psystar does not deny that the very product it sells — now called the Open Computer and OpenPro Computer — are sold to consumers with their choice of operating systems: Windows XP, Windows Vista, Linux or Mac OS. These operating systems are being offered to the same consumers, for the same purpose, through the same seller at similar prices. Consequently, they necessarily are in the same product market. Psystar’s own allegations demonstrate that its effort to define a single-brand market must be rejected and its antitrust and unfair competition claims dismissed with prejudice.

Boo-yah. Psystar cannot have its cake and eat it too. Remember to keep World of Apple in your news feeds for the latest Psystar news.

Check back here later for a complete of the pleading.

UPDATED: I have now had a chance to read Apple’s Reply more thoroughly, and it even more specifically makes an argument based upon a fact that I had identified in a prior article: Psystar’s citation of United States v. Microsoft in support of their arguments was foolish at best and shot themselves in the foot. If I didn’t know better, it seemed like Psystar’s attorney was not aware of the significance of the fact that the Macintosh now runs on Intel processors and did not in the past. To wit,

Moreover, Psystar cannot plausibly argue there are no other viable operating systems here when its own computers are able to run Mac OS, Windows XP, Windows Vista and Linux. As Psystar fully admits, Apple now uses an Intel microprocessor, instead of the prior non-Intel microprocessor. Consequently, Psystar’s reliance on “United States v. Microsoft,” 253 F.3d 34, 53 (D.C. Cir. 2001), is also misplaced. Since Mac OS can now run on Intel processors, Apple’s current Macintosh products, as described in Psystar’s Counterclaims, would now fall within the “Microsoft” definition of the relevant market: all Intel-compatible PC operating systems worldwide. (page 9)