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TECHNOLOGY : Rest of Apple Infringement Suit Dismissed : Computers: Company decides to appeal District Court's handling of its case against Microsoft and Hewlett-Packard.


SAN FRANCISCO — Apple Computer's 5-year-old lawsuit against Microsoft Corp. and Hewlett-Packard Inc. headed for an appeals court Tuesday as a U.S. District Court judge threw out all of Apple's remaining claims in the closely watched case.

The suit alleges that Microsoft's Windows software and H-P's New Wave program are rip-offs of the Apple Macintosh. An Apple victory could radically alter the course of the personal computer industry.

But Apple's chances of winning have diminished dramatically over the last two years as a series of pretrial rulings by U.S. District Judge Vaughn Walker have whittled away the company's claims.

On Tuesday, Walker dismissed what was left of the case after Apple decided that rather than go to trial on the few remaining claims, it will appeal Walker's handling of the case to the U.S. 9th Circuit Court of Appeals.

Apple general counsel Edward Stead said an appeal will probably be filed within the next several weeks.

Walker still must rule on whether Apple will be forced to pay attorney's fees for Microsoft and H-P.

Outside legal experts believe that Apple has little chance of winning on appeal.

From the beginning, Apple has based its case on the claim that Windows and New Wave copy the overall "look and feel" of the Macintosh.

But Walker has consistently rejected that approach, ruling instead that individual elements in the software must be analyzed first and that any infringement must be measured at that level before the program as a whole can be considered.

That procedure, in turn, led him to rule that all the individual elements of Windows and New Wave are either not protected under the copyright laws, are not original to Apple or had been licensed by Apple to Microsoft under a 1985 licensing agreement covering the first version of Windows.

Walker ruled that the Windows and New Wave programs as a whole could be considered copyright infringement only if they were "virtually identical" to Apple programs, rather than "substantially similar," the much looser standard that Apple had sought.

Since the Apple lawsuit was filed, several other cases have established the precedent for granting copyright protection on the basis of "analytic dissection," or examination of specific components of the program. Apple's chances of prevailing on appeal are thus considered slim.

"The court has spoken on this particular issue," said William Schwartz, an attorney at Morrison & Foerster in San Francisco who is not involved in the case. "Apple's chances are not particularly good."

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