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Mac clone maker may take fight with Apple to Supreme Court

September 30, 2011 01:58 PM ET

Schroeder said that the district court "fail[ed] to articulate the rationale underlying its decision to seal," and then vacated those orders and remanded them back to the lower court.

As of Friday, those documents remained sealed.

Psystar's attorney said that the company's legal fight with Apple is not over. "There is at least one more round, perhaps two," said Camera.

Psystar will either ask the Ninth Circuit to consider the appeal en banc -- a request that all the judges on that bench review the case, not just the three-judge panel whose opinion was written by Schroeder - or it will petition the U.S. Supreme Court to hear the case.

"We haven't decided yet," said Camera, referring to Psystar's options.

He called Schroeder's ruling to vacate the orders sealing Apple documents a victory for Psystar. "It's significant because Apple has tried to keep secret how it limits [Mac OS X] to its hardware," said Camera, "even though that information is in the public domain."

He also claimed that the Ninth Circuit's ruling contradicted that of another appellate court, the U.S. Court of Appeals for the Fifth District.

"The Ninth Circuit is now squarely in conflict with the Fifth Circuit on copyright misuse," Camera said. "The Fifth Circuit held that it is copyright misuse to use copyright to limit your software to your hardware, while the Ninth Circuit held that Apple can do just that." An appeal to the Supreme Court may be necessary to resolve that contraction, said Camera.

He also argued that the case is larger than Psystar.

"The principal issue in the case is Apple's limiting Mac OS X to its own hardware," said Camera. "But this is more than only Psystar. It could determine whether the likes of Dell can sell machines that run OS X."

Camera declined to comment when asked whether others besides Psystar are involved with the case. "I can't answer that question," he said, "but I am not representing Dell."

From Camera's comments, it is clear that regardless of the appellate court ruling this week, the case will linger.

"What's really interesting about this case is that it's two guys in a garage challenging the world's largest technology company," said Camera. "That's why I'm really excited to be litigating the case."

Apple did not immediately reply to a request for comment.

covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at Twitter @gkeizer, on Google+ or subscribe to Gregg's RSS feed Keizer RSS. His e-mail address is gkeizer@computerworld.com.

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