Psystar Mac Cloner Ready to Countersue Apple?

It looks like Mac cloner Psystar is finally ready to respond to Apple’s lawsuit last month that charged the Doral, Florida-based startup with selling computers using unauthorized copies of Apple’s Leopard operating system.

Psystar has continued to operate since the suit, selling mail-order, Intel-based computers loaded with Apple’s OS. This week reports surfaced that the company is planning to file a countersuit in U.S. District Court for the Northern District of California against Apple on antitrust grounds.

A spokesperson for Pystar’s law firm, Palo Alto, Calif.-based Carr & Ferrell, told she could not confirm or deny a countersuit has been or will be filed, but expected to have news on the matter this week. Lawyers for the firm were not available for comment.

In a statement issued yesterday, Carr & Ferrell clearly indicated antitrust would be the thrust of their response.

“The present litigation is more complex than the misinformed and mischaracterized allegations of copyright infringement,” the statement said. “The litigation involves the anti-competitive nature of the Apple EULA and similar anti-competitive tactics related to the misuse of Apple’s copyrights. Issues related to the fair use of various intellectual properties by Psystar also come into play.” (EULA stands for End User License Agreement.)

The law firm also noted PsyStar’s OpenComputer ships with a fully licensed, unmodified, retail copy of Mac OS X. “Psystar’s goal is to allow more people to take advantage of a great operating system that Apple has created at a more accessible cost than the pricey MAC. With OpenComputer, Psystar is bringing Leopard to the masses.”

A spokesperson for Apple (NASDAQ: AAPL) said the company stands by its initial statement when it filed suit last month, “We take it very seriously when we believe people have stolen our intellectual property.” Beyond that, the spokesperson said she had no knowledge of whether the company has been contacted by PsyStar’s lawyers.

PsyStar started selling a computer called the OpenMac back in May that included a modified version of Apple’s operating system. The most recent post on Psystar’s home page, dated August 13, says in part: “Recently, our sales team has received several inquiries as to whether or not our systems are still available. Psystar is definitely still shipping Open Computing products….” The post goes on to detail new features.

Analyst and long time Apple watcher Tim Bajarin said Psystar is going to need a lot of money to fight a lawsuit from Apple.

“You know Apple is going to fight this aggressively on the legal front,” Bajarin, president of Creative Strategies, told “Keep in mind, Apple has spent a tremendous amount of money the past decade enhancing their intellectual property. For someone to come out of the blue and challenge that investment invites a lawsuit.”

Bajarin added he didn’t think Apple was worried about lost sales to tiny PsyStar per se, but wants to nip other would be Mac copycats in the bud.

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