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Wednesday, June 2, 1993 - Page updated at 12:00 AM

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Apple-Microsoft Lawsuit Fizzles To A Close -- `Nothing Left' To Fight About

Apple Computer's $5.5 billion "look and feel" lawsuit against Microsoft and Hewlett-Packard petered to a close yesterday with all parties agreeing a jury trial would be pointless given the narrowly defined remaining issue in the case.

"Through five years there were many points where the case got continuously redefined and focused and narrowed," said Marty Taucher, Microsoft spokesman. "Eventually there was nothing left."

San Francisco federal Judge Vaughn Walker granted, but declined to rule on the merits of, Microsoft's and H-P's motion for summary judgment after Apple indicated it would not oppose the action. Walker earlier had set a June 28 start date for a jury trial, requested by Apple when it filed suit in March, 1988.

Last week the parties filed a stipulation with the court aimed at sending the case directly to the Ninth Circuit Court of Appeals. "In light of the prior rulings, it would be in the best interest of judicial economy and efficiency to obtain an early review of those rulings on appeal rather than proceeding to a trial," the statement read.

Apple said it is appealing the case out of disagreement with Walker's characterization of its Macintosh interface as a "purely functional arrangement," and his requirement of a "virtual identity" standard of comparison between the Macintosh and Microsoft's Windows, modeled after the Apple program and other graphical interfaces.

In a series of rulings, Walker had narrowed the case to a single issue: Is Windows identical to Apple's Lisa (a Macintosh predecessor that failed commercially) and the Macintosh?

Apple felt the question was too narrow. Attorney Edward Stead argued that a "substantial similarity" standard taking into account small differences but considering overall resemblance - "look and feel" - should be applied.

"We think it is important that innovative graphical computer works receive the protection to which they are entitled under the copyright law," Stead said.

But Microsoft attorney Bill Neukom countered, "In order to have a copyright infringement, you have to copy. And we didn't copy."

Neither side would estimate how long the appeals process might take.

When Apple filed suit, the dispute between the two companies already was nearly three years old. Apple first raised objections to Windows in the summer of 1985, later threatening to sue as Windows' release date approached in November.

Intensive negotiations between the two companies in October yielded a license agreement signed Nov. 22 for Microsoft to use Macintosh technology for Windows 1.0.

When Microsoft upgraded Windows to version 2, Apple sued, arguing that the license applied only to the first version.

The explosive suit involving two industry leaders at first was earmarked for landmark status. But as Microsoft argued against - and a succession of judges eliminated - each of the 200-plus features that Apple contended infringed, and as the personal-computer landscape changed to accommodate numerous similar graphical technologies, the lawsuit became a curious sideshow.

None of the parties would say how much has been spent on the case to date, but Microsoft Chairman Bill Gates a year ago estimated his company's legal costs at $10 million encompassing "30 man-years of lawyers."

----------------------------------------------------- Key events in the Apple-Microsoft lawsuit

-- March 17, 1988: Apple files suit against Microsoft and Hewlett-Packard in San Francisco federal district court for allegedly violating "look and feel" of the Apple Macintosh.

-- March 28, 1988: Microsoft Chairman Bill Gates tells InfoWorld newsweekly, "We're saying that these graphic interface techniques, the ideas, are not copyrightable."

-- July 25, 1989: Judge William Schwarzer, having examined a list of 189 "similarities in particular features" submitted by Apple, rules that all but 10 are covered by a 1985 licensing agreement.

-- March 6, 1991: Judge Vaughn Walker, the case's third judge, issues a mixed ruling stating that while Apple's "borrowing of ideas" from Xerox and others for the Macintosh "does not deprive Apple's works of their presumption of copyright validity," the 1985 license does not cover "total concept look and feel." Both Microsoft and Apple are happy with the ruling.

-- Feb. 11, 1992: Microsoft discloses Apple has requested damages of $4.37 billion, based on the number of Windows copies sold and potential lost Macintosh sales. The number later rises to $5.5 billion.

-- April 14, 1992: Walker tosses out 10 remaining elements in dispute as uncopyrightable, in effect "gutting" Apple's case.

-- May 18, 1993: Three remaining issues are tossed out, setting stage for jury trial on "virtual identity."

Copyright (c) 1993 Seattle Times Company, All Rights Reserved.

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