Newsgroups: bit.listserv.banyan-l
Date:         Wed, 15 Apr 1992 19:40:30 PDT
From:         R.=Marquis%InfoSys%Chiron@LARRY.CHIRON.COM
Subject:      Apple loses "look & feel" lawsuit
X-To:         uunet!VM1.CC.UAKRON.EDU!BANYAN-L@uunet.UU.NET

FYI,
Here's the text of an artoicle from todays Wall Street Journal.

Microsoft and Hewlett Win Ruling Over Apple

By Stephen Kreider Yoder Staff Reporter of The Wall Street Journal
   SAN FRANCISCO -- A federal judge handed Microsoft Corp. and
Hewlett-Packard Co. a major victory, throwing out most of Apple
Computer Inc.'s arguments in its copyright suit aimed at protecting
the "look and feel" of its popular computer display graphics.
   The surprise ruling all but dashes Apple's chances of getting a
judgment against Microsoft and H-P, which Apple sued in 1988, arguing
that Microsoft's Windows program and H-P's NewWave program illegally
infringe on copyrights for the visual images that helped make Apple's
Macintosh computer popular.
   The judge, Vaughn Walker, granted virtually all of the requests by
Microsoft and H-P that he dismiss Apple's arguments that it had
copyright protection for Macintosh characteristics, such as movable
symbols or "icons," and overlapping windows. Judge Walker ruled that
Microsoft had the rights, under a 1985 license with Apple, to all the
technologies in Microsoft's first version of Windows, and to
enhancements in Microsoft's second version. Likewise he agreed to
throw out most of the claims by Apple, of Cupertino, Calif., that H-
P, of Palo Alto, Calif., was infringing on the Macintosh's
characteristics.
   Judge Walker's decision is a dramatic turn in a case considered to
be the most important piece of litigation potentially affecting the
desktop computer industry. Previously, analysts said Apple might use
a victory to wring huge damages from Microsoft, the leading PC
software maker, block sales of Windows, a runaway bestseller in the
industry, or obtain rich royalties from Windows sales. Windows is
obtaining dominance in the personal computer business at the expense
of Apple's Macintosh. Apple had sought up to $5.5 billion in damages
in the case.
   The ruling "lifts the majority of the legal risk from the stock,"
said analyst David Readerman of Shearson Lehman Brothers Inc. The
Apple suit was a "nagging issue" that created a cloud of doubt over
Microsoft, he said.
   Richard Sherlund, an analyst with Goldman, Sachs & Co., said the
decision was "unexpected and absolutely stunning" and will probably
help push up Microsoft's stock today. Microsoft is based in Redmond,
Wash.
   The judge, who hadn't been expected to make a significant ruling
yesterday, left open several questions for a hearing scheduled for
next month. He didn't rule on whether aspects of a newer Windows
version 3.0, such as how it handles images of typed letters, or
"fonts," infringes on certain Apple rights. And he left a question
open for H-P: Whether the company has the right to use the on-screen
symbol of a trash can, which the Macintosh uses for a variety of
tasks, including clearing a file from the screen. Most important, he
left for May the question of whether H-P and Microsoft programs are
substantially similar as a whole to Apple's in a way that infringes
on Apple's copyrights.
   But analysts said H-P and Microsoft could easily alter the
remaining characteristics. And, having ruled out most of the specific
characteristics as not protectable, Judge Walker didn't leave much
hope for Apple to argue that the programs as a whole infringe. "There
is no way that any finder of fact is going to conclude that there's
infringement in this case based on that trash can," said Jonathan
Marshall, who argued H-P's case and declared a "victory" for H-P.
   David McDonald, attorney for Microsoft, said the ruling does away
with the most important matters concerning the software company,
especially movable icons and overlapping windows. "If it isn't a
complete victory, it was more than 95% of the way," he said.
   Jack Brown, an attorney for Apple, would say only that "this case
has a long way to go and we fully expect to have our position
sustained." Apple's suit has been closely watched because it tests an
argument of whether Apple can copyright the "look and feel" of its
software, elements of which are widely emulated in the PC industry.
Apple argued that its Macintosh screen was a unique expression of an
idea and therefore could be copyrighted.
   H-P and Microsoft have argued that individual elements of the
Macintosh's screen lacked originality or were pioneered by such
companies as Xerox Corp. and International Business Machines Corp.
The whole idea behind all three programs, that computer screens are
simpler if tasks are presented as familiar desktop objects, is an
analogy that can't be copyrighted, argued Mr. McDonald, Microsoft's
attorney.
   Judge Walker's ruling also addresses another pressing question in
the software industry: What legal yardstick determines whether "look
and feel" are infringed upon? Judge Walker appeared to answer than
question by consistently demanding that Apple, to demonstrate
infringement, show that H-P and Microsoft had violated specific
chararacteristics of Apple's Macintosh to which Apple owned the clear
rights.
   At yesterday's hearing, Judge Walker chided Apple attorneys for
repeatedly failing to come up with such evidence, despite prodding,
that individual parts of its software, rather than the whole, were
protectable under copyright law.
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