Psystar Files to Oppose Dismissal of its Counterclaim

Psystar has filed a motion in opposition to Appleis motion to dismiss its counterclaim. Psystar believes it has found relevant case law to support single product relevant markets and supporting antitrust argument.

Previously, in response to Appleis original copyright infringement case against Psystar, a counterclaim was filed which emphasized possible antitrust action by Apple. Apple filed a motion to have the counterclaim dismissed because Apple is not a monopoly has no "market power."

On October 16, Psystar filed a motion citing a case, not yet reviewed, of Newcal Industries Inc. V. Ikon Office Solution, 518 F.3d 1038, 1048 (9th Cir. 2008).

"Apple is nothing if tenacious, having previously asserted this very same argument in attempts to dismiss antitrust claims related to Appleis iPod, iTunes Music Store, and iPhone pending in the Northern District of California. The result should likewise be the same -- the motion should be dismissed. The sentiment echoed by Apple in those cases, as it is here, is that the antitrust claimants are trying to iforcei and irequire Apple to help its competitors compete against it.i," wrote Christopher Grewe, one of the attorneys for the Defendant.

Of course, Apple will get to review the supposed relevant defenses and precedent and will have their own reply. Whether Psystaris motion to block the dismissal is powerful enough to argue the merits of their case remains to be seen. However, all it has to do is be sufficient to persuade the court that their countersuit should not be dismissed.

Psystar is arguing that despite Appleis small market share, perhaps 3.5 percent worldwide, there are situations and markets where a vendor can be declared to have monopoly power in its own brand. There may be an "after market" element to the Psystar argument which weakens it, but that has yet to be determined definitively, according to an attorney who is following the case and wishes to remain anonymous.

If Psystar gets it way and Appleis motion for dismissal of the counterclaim is dismissed, and Alternative Dispute Resolution (ADR) fails, then the case likely moves on to "discovery" and then to trial, probably in 2009.