On Thursday, oral arguments on Apple’s Motion to Dismiss Psystar’s Counterclaims were heard by Judge Alsup. Macworld has a summary of the hearing, to which I refer the interested reader. Two very interesting things occurred, though I am hungry for more details from persons actually present. Before discussing these two points, following is a history of the pertinent filings to date.

7/3/08: Apple filed its Complaint for Copyright Infringement, Induced Copyright Infringement, Breach of Contract, Trademark Infringement, Trade Dress Infringement and Unfair Competition.

8/28/08: After being granted two extensions by Apple, Psystar filed its Answer and Affirmative Defenses and Counterclaims for Violations of the Sherman, Clayton, and Cartwright Acts, and State and Common Unfair Competition Law.

9/30/08: After being granted one extension by Psystar, Apple filed its Motion to Dismiss Psystar’s Counterclaims; Memorandum of Points and Authorities in Support Thereof.

Note to reader: A motion to dismiss is considered a responsive pleading. Apple is not required to answer Psystar’s Counterclaims until a ruling is issued on this Motion. If the Motion is granted in full, no answer will be needed. If it is denied or granted only in part, then Apple will have a certain amount of time, usually designated by the Court in its Order, to answer Psystar’s Counterclaims.

10/16/08: Psystar filed its Opposition to Apple’s Motion to Dismiss its Counterclaims.

10/23/08: Apple filed its Reply Brief in Support of its Motion to Dismiss Psystar’s Counterclaims.

Note to reader: You may have noticed that Apple had two opportunities to argue its position on dismissing Psystar’s Counterclaims, and Psystar only received one opportunity to respond. This is typical Federal Procedure: Motion>Reply to Motion>Response to Reply to Motion. Any further filings would require leave of Court.

11/6/08: Oral Argument on Apple’s Motion to Dismiss Psystar’s Counterclaims took place. The parties were told to expect a ruling within the next two weeks.

Note to reader: Federal court practice is significantly different from state court practice in that appearances before the judge to argue motions prior to trial are rare. More often than not, the court will make its decisions based upon the written filings alone. Motions to dismiss and motions for summary judgment are the ones most often granted oral argument as their effects are potentially case-dispositive.

Now I will repeat what I have said multiple times before: Apple will not prevail on its Motion to Dismiss, and the Apple web will completely blow the significance of Apple’s loss out of proportion. I believe that Apple will not prevail simply on sheer statistics, and the philosophy that courts do not like to take cases out of the hands of the jury. This opinion is not based at all on the strengths of the legal arguments in the filings. I am not an attorney and thus not qualified to analyze the legal arguments to that extent. In my lay opinion, both parties put up a strong fight. The burden to prevail on a motion to dismiss is quite high and narrow—in this instance Apple must show that Psystar has not put forth a legally plausible claim. Apple could very well prevail on the very same arguments in a motion for summary judgment. In fact, that is what I expect. I also expect complete exaggeration from many sites in the face of an unfavourable ruling being presented as a death blow to Apple’s substantive arguments. That would not be the case. It would be irresponsible to claim otherwise, and I will call out by name those who do so.

Returning to the Macworld article, the two interesting points that I gleaned were an encouragingly favourable (to Apple) comment made by Judge Alsup and the discovery of possible grounds for Judge Alsup’s recusal.

Favourable Comment from the Bench

Alsup questioned Springer when the attorney cited the passion that Mac users have for the platform, noting that Ford truck owners might feel the same way about their pickup trucks in regards to ones from Chevrolet. “You wouldn’t say they have a monopoly,” the judge said.

Judge Alsup compltely blew Springer’s vacuous argument out of the water. It is ludicrous to claim that a passionate customer base is proof of a single market monolopy, and in fact, I find it to be another case of Psystar shooting itself in the foot by making Apple’s case that Psystar’s actions could potentially tarnish a peculiarly high level of respect that Apple enjoys. If Apple prevails, Springer’s own argument could be used as the basis for an argument for a higher damages award.

Potential Grounds for Recusal of Judge Alsup

One of the Townsend and Townsend and Crew attorneys representing Apple, Megan Chung, is a former law clerk of Alsup’s—a fact that Psystar’s attorneys just became aware of. Alsup gave Psystar until Monday at noon to file a motion asking the judge to recuse himself from the case.

This is somewhat common. If there is found any potential for bias, a party may move for recusal. Actual bias does not have to be proven.

My Prediction

I predict that Psystar will file a motion for recusal. Why? Judge Alsup has shown that he sees through Psystar’s smokescreen, and rolling the dice for another judge may result in one more sympathetic to Psystar. They may wish to take the risk. Please keep in mind that this prediction is made without consideration or knowledge of an attorney’s ethical obligations in moving for recusal. It might be that such tactical considerations would be considered improper by the Code of Professional Conduct, and I am positive that Springer will conduct himself within those parameters.

Of course, all of this is my lay opinion from the tantalizingly few facts that I know from Thursday’s hearing. I also predict that someone in the Apple web will weave some nefarious plot out of the newly discovered potential conflict.

As an aside, the main presenter at my Mac Users Group is a professional computer technician who has heard of credible cases in which packing popcorn has come out of Psystar machines when opened up for service. Now that’s a sign of quality. Not.