HEADLINE: Most of Xerox's Suit Against Apple Barred
BYLINE: By ANDREW POLLACK, Special to The New York Times
DATELINE: SAN FRANCISCO, March 23
A Federal judge today dismissed almost all the closely watched copyright lawsuit filed by the Xerox Corporation against Apple Computer Inc.
In what appears to be a sweeping victory for Apple, Judge Vaughn R. Walker of the Federal District Court in San Francisco threw out five of the six counts in Xerox's lawsuit, saying, in essence, that Xerox's complaints were inappropriate for a variety of legal reasons.
Xerox sued Apple in December, seeking more than $150 million in damages. It asserted that the screen display of Apple's Macintosh computer unlawfully used copyrighted technology that Xerox had developed and incorporated in a computer called the Star, which was introduced in 1981, three years before the Macintosh.
''We welcome the ruling in every way,'' said a jubilant Jack E. Brown of Brown & Bain, the law firm representing Apple, which had filed a motion to have the case dismissed. Even if Xerox prevails on the one count it can still pursue, it cannot win much because the judge threw out all the counts seeking damages, attorneys involved in the case said.
A Xerox spokesman said the company planned to appeal. ''The ruling does not mean Apple hasn't taken substantial portions of the Star and claimed them as their own,'' a statement issued by Xerox said. ''The court merely held, we believe erroneously, that Xerox does not have standing to present facts in support of our contention.''
The Xerox lawsuit is one of many copyright suits that are splitting the computer software industry. A major issue is the right to the screen displays known as graphical user interfaces - a dashboard of sorts by which a user controls the computer.
A key appeal of the Macintosh is its ease of use, thanks in part to a display that allows users to perform tasks by pointing at symbols on the screen and to divide the screen into separate ''windows,'' each containing a different document or program. Now, virtually all computer companies are adopting similar screen displays.
No one disputes that many of the ideas behind such interfaces were born at the Xerox Palo Alto Research Center in the 1970's, although the Star was not a marketing success. But the question of how similar one interface has to be to another to constitute copyright infringement remains unanswered.
Two Others Accused
Separately, Apple has sued the Microsoft Corporation and the Hewlett-Packard Company, accusing them of infringing on its Macintosh screen copyrights.
As part of their defense, Microsoft and Hewlett-Packard are seeking to get Apple's copyrights declared invalid. They are expected to point toward Xerox's development of many of the techniques used in the Macintosh. That case is also being handled by Judge Walker, a new judge who took over the docket of Judge William W. Schwarzer, who left recently to become director of the Federal Judicial Center in Washington.
Xerox had sought to have Apple's Macintosh screen copyrights declared invalid, contending that they were fraudulently obtained because Apple had failed to tell the Copyright Office about Xerox's prior work.
Xerox also accused Apple of unfair competition, saying that Apple's claim to Macintosh screen technology had made it difficult for Xerox to license its technology to other companies. '' Apple is using its copyrights to hold the computer industry hostage by its licensing and litigation practices,'' Xerox, which is based in Stamford, Conn., said in a motion filed in the case.
No Basis Seen for Suit
Apple, which is based in Cupertino, Calif., said in its motion for dismissal that Xerox had no basis for its suit because Apple was merely asserting its own copyrights and not threatening Xerox's copyrights on the Star.
Apple also replied that while it might have borrowed ideas from Xerox, ideas were not protected by copyrights, only the way the ideas were expressed. Mr. Brown, Apple's attorney, said at the hearing that Xerox's asserting that it had originated the Macintosh was as preposterous as a beaver taking credit for the Hoover Dam.
Judge Walker dismissed two counts relating to Xerox's efforts to get Apple's copyright declared invalid, apparently agreeing with Apple that the proper place for such an action would be the Copyright Office, not the courts. He also dismissed three counts relating to the unfair competition assertions, saying that the lawsuit should really be a copyright infringement case, not an unfair competition case.
Reasonable Fear Required
The one count the judge did not throw out was Xerox 's request for a declaration that it is the sole owner of the Star technology. But he said that to bring suit on that count, Xerox would have to show it had a reasonable fear that Apple would try to take away Xerox's copyrights. He gave Xerox 30 days to come up with the evidence and a list of witnesses.
The ruling came shortly before the close of the stock market. Xerox closed at $55.50, unchanged, and Apple closed up by $1.50 at $42.25.
G. Gervaise Davis 3d, a copyright lawyer in Monterey, Calif., said the
decision in the case ''is not a bit surprising.'' He said Xerox had waited
too long to file a copyright infringement case and had to resort to a weaker
charge of unfair competition. ''I think it's unfortunate,'' he added, ''because
Apple is running around persecuting Microsoft and Hewlett-Packard over
things that they borrowed from Xerox.''