Judge berates Apple over Snow Leopard timing in Psystar case

Computerworld - A federal judge castigated Apple yesterday in an order that dismissed a motion the company had made in its ongoing legal battle with Mac clone maker Psystar, according to court documents.

In his order, U.S. District Court Judge William Alsup denied Apple's motion to stop an August lawsuit filed by Psystar that accused Apple of illegally tying its new Snow Leopard operating system to Mac hardware.

Alsup also took a shot at Apple, hinting that the company timed Snow Leopard's release to take place after an important deadline had passed in the 14-month lawsuit Apple opened against the small Florida computer maker in July 2008.

Apple had wanted the new lawsuit stopped, arguing that it was "nearly identical to the issues that have been actively litigated in this case." It was referring to the original copyright infringement and software licensing lawsuit filed over Psystar's installation of Mac OS X 10.5, or Leopard, on generic Intel-based computers.

Psystar, which now sells clones with Mac OS X 10.6, aka Snow Leopard, pre-installed, sued Apple in late August, claiming the company monopolized the market for "premium" computers by prohibiting others from using the operating system on non-Apple hardware.

Apple's motion, filed Sept. 11, also asked that the judge reopen the discovery process of the original case, which is being considered by Alsup's California court, to probe Psystar's use of Snow Leopard.

"Psystar deliberately concealed its intention to run Snow Leopard on its computers despite being relevant to Apple's claims and responsive to Apple's many discovery requests," Apple said in its motion earlier this month. "Then, rather than litigate the legality of its conduct in this Court, where the issues already are pending, Psystar has attempted an end-run around this Court's prior rulings by filing a duplicative and baseless lawsuit 3,000 miles away."

Psystar's Snow Leopard-specific lawsuit was filed in a Miami federal court.

But Alsup wasn't having any of Apple's arguments.

"Apple, not Psystar, commenced this action. Apple has fought hard to keep its unreleased product -- Snow Leopard -- out of this action by, among other things, relentlessly objecting to discovery on Snow Leopard," said Alsup in his Thursday order. "If Snow Leopard was within the scope of its own complaint herein, as it now suggests, then Apple should have welcomed discovery thereon rather than, as it did, object to discovery directed at Snow Leopard and effectively taking Snow Leopard out of the case."

Alsup was also suspicious of the timing of Snow Leopard's release date.

"Only after the discovery period closed did Apple release Snow Leopard, having successfully kept it out of the case," said Alsup. "Apple even chose when to release Snow Leopard and it chose to do so after all opportunity to take discovery on it had ended. The problem is one largely of Apple's own making."

Apple launched Snow Leopard on Aug. 28, exactly one week after discovery closed in the California case overseen by Alsup.

Apple's original lawsuit against Psystar is slated to go to jury trial on Jan. 11, 2010.

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