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Apple and Mac clone maker Psystar traded barbs last week in federal court as they simultaneously asked a judge to end the case that began more than 15 months ago.

Psystar took the unusual step of conceding to an injunction, saying that it would agree to stop using Mac OS X 10.5, aka Leopard, on the machines it sells.

The two companies have been battling since July 2008, when Apple sued Psystar over the latter's practice of installing Apple's Mac OS X operating system on generic Intel-based computers.

Apple Mac Mini 2009

Last week, lawyers for Apple and Psystar submitted motions for summary judgment to US District Court Judge William Alsup, asking him to effectively award them the legal victory because enough evidence had accumulated through discovery to warrant a decision before trial is to begin 11 January, 2010.

"Psystar Corporation makes and sells computers containing pirated copies of Mac OS X that Psystar has altered to circumvent Apple's technological protection measures," Apple argued in its motion. "In so doing, Psystar seeks to appropriate Apple's enormous investment in Mac OS X and trade on Apple's hard-won reputation for excellent, highly reliable products."

Because the motions for summary judgment were essentially reviews of arguments already made, much of the ground had been covered before. As it did in September 2008, for instance, Apple again denied that it controlled a monopoly, a charge Psystar has leveled by claiming Apple ruled the market because it illegally tied its Mac OS X to Mac hardware.

Apple, in fact, again downplayed its market power. "All the evidence contradicts any contention that Apple wields power in a relevant market," said Apple in its motion.

"For example, sales of Mac computers in the first quarter of 2009 represented 7.6% of all new personal computer sales in the United States while the market shares of Apple's major competitors, Hewlett-Packard and Dell, were 27.6% and 26.3%, respectively, during the same period."

This week, the research firms IDC and Gartner estimated Apple's share of the US personal computer market for the third quarter as 9.4% and 8.8%, respectively, still significantly behind HP and Dell.

Apple also argued that Psystar's reasoning would mean that Apple would be forced to work for a rival, a line it used a year ago. "Psystar is free to compete with Apple -- as do scores of other companies -- by developing its own operating system, by using open source code or by licensing a system available from other vendors," said Apple. "But Psystar is not free to copy, modify and distribute Apple's software in violation of the copyright laws and Apple's software license."

For its part, Psystar said it would agree to an injunction preventing it from using Mac OS X 10.5, aka Leopard. "Psystar will happily submit to an appropriately tailored injunction ... limited to Psystar's allegedly illegal activities involving OS X Leopard, since it is only OS X Leopard that this case concerns. Since neither Psystar nor Apple sells OS X Leopard any longer, it is no great burden for Psystar to agree to such an injunction," its lawyers said in the competing Psystar motion.

That concession, however, is meaningless, since as Psystar noted, it now sells Mac OS X 10.6, or Snow Leopard, with its computers. Snow Leopard is the upgrade to Leopard that Apple launched 28 Aug.

Last month, Psystar won a minor victory when Alsup denied Apple's motion to stop a separate lawsuit filed by Psystar in a Florida federal court two months ago that accused Apple of tying Snow Leopard to Mac hardware. Then, Alsup chastised Apple for timing Snow Leopard's release to take place after an important deadline had passed in the case he oversees.

Major sections of both motions were redacted at Apple's request, primarily those parts that discussed the technology Apple uses to block Mac OS X from running on non-Apple hardware, and Psystar's resulting work-arounds. Subsequent to the motions filed last week, Apple has demanded that the redacted sections remain private, while Psystar has argued that they should be made public.

Last week, Psystar upped the ante on that front when it announced it would licence its technology to other clone makers so they could also build Mac knock-offs.

Alsup has slated a 12 November hearing to take oral arguments from both Apple and Psystar on their motions for summary judgement.

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