“AT&T did not file this lawsuit because Verizon’s ‘There’s A Map For That advertisements are untrue; AT&T sued because Verizon’s ads are true and the truth hurts.”

– Excerpt from Verizon’s response to AT&T’s complaints about its new ad campaign

Verizon was right. The truth does hurt. And it is especially painful when it’s meted out by a court of law. A U.S. District judge on Wednesday denied AT&T’s request to force Verizon to pull its “There’s A Map For That” and “Island of Misfit Toys” commercials, saying that while the ads might be “sneaky,” they are not deceptive.

“People might misunderstand [Verizon’s commercials],” said U.S. District Judge Timothy Batten, “but that doesn’t mean they’re misleading.”

He gave AT&T (T) another chance to make its case at a Dec. 16 hearing, but given his dim initial view of the company’s complaint, the carrier seems unlikely to prevail.

AT&T plans to press on with the case anyway. “While we are disappointed with the court’s decision on our request for a temporary restraining order, we still feel strongly that Verizon’s ads mislead consumers into thinking that AT&T doesn’t offer wireless service in large portions of the country, which is clearly not the case,” AT&T spokesman Mark Siegel said in an email. “We look forward to presenting our case to the court in the near future.”

In the meantime, AT&T has begun running some attack ads of its own. Sadly, the first effort is not nearly so clever as Verizon’s (VZ) and features far too much Luke Wilson and far too little humor.

PREVIOUSLY:

• Verizon to AT&T: Do Yourself a Favor and Shut Up
• Frosty’s Winter Litigation Wonderland: AT&T Demands Verizon Pull Holiday iPhone Ads [With Full Complaint]
• Verizon Banishes iPhone to Island of Misfit Toys
• Verizon on AT&T Suit: There’s a Word for That. “Junk.”
• Verizon to iPhone Users: “Want Five Times More 3G Coverage? There’s a Map for That.”

So begins Verizon’s (VZ) response to AT&T’s (T) complaints about its new ad campaign, and as you can see below, it pulls no punches. For 53 pages–all of them very obviously drafted with publication in mind–the new filing mercilessly thrashes AT&T, proving over and over again that the carrier’s carping over Verizon’s ads has transformed a no-win situation into a horrific PR disaster that only highlights AT&T’s shortcomings.

“In the final analysis, AT&T seeks emergency relief because Verizon’s side-by-side, apples-to-apples comparison of its own 3G coverage with AT&T’s confirms what the marketplace has been saying for months: AT&T failed to invest adequately in the necessary infrastructure to expand its 3G coverage to support its growth in smartphone business and the usefulness of its service to smartphone users has suffered accordingly. AT&T may not like the message that the ads send, but this Court should reject its efforts to silence the messenger.”

Brutal.

As I said earlier this month, if AT&T’s lawsuit over Verizon’s allegedly misleading “there’s a map for that” wasn’t a public relations mistake to begin with, it will be by the time Verizon gets through. And, indeed, the lawsuit already is a mistake. Below, Verizon’s reply in full:

PREVIOUSLY:

• Frosty’s Winter Litigation Wonderland: AT&T Demands Verizon Pull Holiday iPhone Ads [With Full Complaint]
• Verizon Banishes iPhone to Island of Misfit Toys
• Verizon on AT&T Suit: There’s a Word for That. “Junk.”
• Verizon to iPhone Users: “Want Five Times More 3G Coverage? There’s a Map for That.”

verizonresponse –

Big news often comes in small packages and BoomTown was all over the little moves that meant big stories this week. Kara covered a massive redesign of Microsoft’s MSN homepage that follows the old car-racing-mantra-turned-Web-design ethos: Add power and lightness. Everyone breathed a sigh of relief when BoomTown covered the end of the Skype ruckus. All is forgiven, and all it took was a sizable stake in the company and seats on the board. Kara rounded things out by running a quick post about a spankin’ new feature from AllThingsD: Every Friday, the just launched “Almost Famous” will cover interesting start-ups through the eyes of their chief geeks. Kara’s all about geek love.

Digital Daily isn’t usually big into bean-counting, but this week the numbers were where it was happening. The first sales figures came back from Apple’s iPhone launch in China, and the numbers weren’t good. As of pub time for the post, only 5,000 iPhones had been (legitimately) purchased. If the Chinese numbers were a picture of modesty, the App Store’s numbers were parading through Time Square in an orange jumpsuit singing Eddie Grant’s “Electric Avenue.” The two-year-old App store’s epic popularity has pushed its already outsized download numbers past the two-billion mark. Not to be outdone with unprecedented flash, Google (GOOG) violated its own nonrule late in the week and ran a semi-ad on the Google homepage. You say ad, they say synergy, but at the end of the day it was a direct promo for Motorola’s (MOT) new Droid, which runs on Google’s Android platform.

MediaMemo started the week off right with a fresh bite from Apple (AAPL). Peter covered the revamp of Apple TV, which will now be offered for $30 a month. News from News Corp. was no surprise this week, when MediaMemo brought us the story that the media empire (and AllThingsD’s uber-parent company) was doing fine as long as you only pay attention to cable and movies. Broadcast and print? Eh, not so much. Finally, Peter asked a few probing questions of Google CEO Eric Schmidt in regard to his company’s suspicious addition of a “blog” tag attached to some Google News postings. Schmidt speculated, but the ultimate answer wasn’t, as he suggested, because of your mother.

Deep in his Personal Technology bunker, at an undisclosed location somewhere in rural Maryland, Walt got to take a crack at the new Motorola Droid this week, and his response was, well, very positive. He praised the Droid’s exceptional battery life and call clarity, even if the touchscreen wasn’t quite up to the iPhone bar. All in all, he said it was a win for Verizon (VZ) and the Google’s mobile OS.

Mossberg’s Mailbox continues to fill with questions about the speculative Apple tablet. Walt offered some other sage advice about making the Windows 7 switch with 64 bits, and what to do with all that grief over the death of Microsoft’s (MSFT) Outlook Express.

Katie was sweatin’ to the newbies this week, with an energetic review of Fitbit, a wireless fob for tracking calories and exercise stats. The Bluetooth headset-sized clip attaches to your waistband and uploads your activities to the Fitbit Web interface, where you can track how many calories you did or didn’t burn. You can also add water consumed and calories eaten. The Fitbit has been shipping since September, but won’t appear on retail shelves until after the holidays. No word yet on if it will include a “Cheesecake Factory” tab to the interface so as to allow for calorie counts that require exponents.

Like any good gadget lovers, we are all about the small and mighty here at AllThingsD. Stay tuned in with your RSS reader, Twitter feed or the good ol’ homepage. We’ll keep bringing you the little things you need to know.

“The cost of smart phones is considerably higher than feature phones for which the early termination fees were created years ago at $175,” said Verizon spokesman Jim Gerace. He added that the new $350 ETF declines by $10 per month through the life of the contract and customers can avoid it by buying their devices off contract and paying full retail price.

An interesting move for Verizon (VZ), which just last year agreed to pay $21 million to settle a class-action lawsuit filed by California consumers over the very early-termination fees it is now increasing. The plaintiffs in the suit alleged that Verizon’s ETFs were illegal under California law and that they were designed to unfairly lock consumers into long-term contracts and prevent them from switching carriers. When Verizon settled the suit, it denied any wrongdoing, insisting that early-termination fees are simply a means of recovering legitimate costs. And to some extent Verizon does have a point.

Full retail price for the Motorola’s (MOT) new Droid is $559.99. With a two-year contract, Verizon sells the handset for $199.99. Theoretically, that’s a $359.99 subsidy (I have no idea at what price Verizon purchases Droid from Motorola). So if Verizon allowed subscribers to break their contract after a month without paying an early-termination fee, the company would stand to lose money. And subscribers who did so could subsequently sell the device online and potentially make a profit, though a small one.

So it’s certainly understandable that Verizon and other carriers want to protect the subsidies they dole out for these new smart phones. And as noted earlier, Verizon’s new ETF drops by $10 each month a subscriber remains under contract. But at this rate, subscribers are still bound to pay a $110 termination fee in the 23rd month of a two-year contract. The contract is nearly over, the subscriber obligation to Verizon almost fulfilled, yet the company can still slap its customers with nearly a third of the full ETF if they break it at that time.

By month 23 of a two-year contract, does Verizon really stand to lose $110 if subscribers decide to switch carriers? Doesn’t seem likely if subscribers can walk away just a month later without consequence, taking their handsets with them.

Since Verizon is pro-rating the ETF, why isn’t it doing so in such a way that it zeroes out by the end of the contract?

And isn’t the fast pace of innovation in the smart-phone sector such that prices–for both component and device–are dropping so quickly that high ETFs aren’t really justified? Remember, you can get Apple’s (AAPL) iPhone for $99 today. When the iPhone debuted in 2007, it commanded a price of $499/$599, depending on model.

I’ve put those same questions to Verizon and will update here when I hear back. In the meantime, here’s what Consumers Union policy analyst Joel Kelsey has to say on the matter: “When people want to switch wireless services, the biggest cost they face is early termination fees. These fees are designed to lock people into long-term contracts and stop them from getting better deals. Early-termination fees make the marketplace less competitive. Verizon’s move is painful proof that it’s time for lawmakers to crack down on these fees.”

UPDATE: Verizon Wireless spokesperson Nancy Stark offers the following answers to the questions I posed above:

Your first question regarding the balance at month 23 or 24 assumes that, at that point, we have recovered all of our subsidy and up-front costs for every device. That simply is not so.

On your second question, while the pace of innovation plays a role in prices coming down somewhat, it also plays a role in driving up costs as more and more complexity that customers want is added to phones–from premium HTML browsers to high-resolution MP cameras with optical zoom; videoplayers; music players; dual processor chipsets; WiFi; very high display resolution, operating systems such as BlackBerry, Windows Mobile, Palm, Android–ALL with the added value (vs a desktop) of mobility, and ALL in one tiny device that ALSO allows you to talk to anyone from anywhere. phew! (by comparison, I recently paid $200 for a camera and all it can do is take pictures, and it has only middle of the road capabilities.)

But getting back to ETFs specifically. The most important point is that Verizon Wireless customers do not have to have an ETF at all if they do not want to. ETFs allow customers to have it either way: They can have no ETF and pay full retail for their device. OR, they can get a greatly discounted device by having an ETF.

The fight for Skype has ended. After weeks of nasty legal sparring, the Internet telephony service’s founders agreed to join the investor group purchasing it from EBay (EBAY) and dropped the lawsuit that had threatened to bollocks the deal.

“Skype will be well positioned to move forward under new owners with ownership and control over its core technology,” said eBay chief executive John Donahoe in a statement. “We look forward to closing the deal and focusing on growing our core e-commerce and payments businesses.”

Under the terms of the agreement, Skype founders Niklas Zennström and Janus Friis will take a 14 percent stake in the company they founded and then sold to eBay, which will include an investment by them.

BoomTown’s Kara Swisher reported yesterday that the total was 13 percent–10 percent for the rights to key Skype technology held by the founders and the option to invest $83 million for three percent more.

In exchange, the pair will give Skype software essential to its operation and drop their various lawsuits against eBay and Skype buyers.

Interestingly, Index Ventures, which helped orchestrate the deal, is leaving the consortium of investors taking a majority stake in the company–as BoomTown reported earlier this week. Index partner Michelangelo Volpi, a former employee of Skype’s founders, had been at the center of one the suits that threatened to ruin the deal. Said Index partner Danny Rimer: “The deal terms changed for Index such that it no longer matches our investment criteria and thus we have decided not to participate in the transaction.”

PREVIOUSLY:

• Volpi and Index Ventures Out of Skype Deal, the Lawsuit-Happy Founder Twins In
• I Love the Smell of Settlement in the Morning: Skype Founders Set to Get 10 Percent, Option to Buy Three Percent More and Two Board Seats
• Volpi and Index Smack Back at Skype Founders With Motion to Dismiss (Plus Filings!)
• When Entrepreneurs Attack! All 10 New Skype Lawsuit Filings!
• Dueling Skype Sides Hire Big Communications Guns
• Skype Actually a “Voice Over IP Litigation” Service

“Verizon is displaying maps of the United States that purport to show each carrier’s ‘3G’ coverage. The maps use color to depict the areas of the country in which each carrier has ‘3G’ coverage and blank or white space in the areas of the country where ‘3G’ coverage is not available. Consumers are interpreting the white or blank space on the maps to mean that AT&T customers who are not in an AT&T ‘3G’ coverage area have no wireless coverage whatsoever, and therefore have no ability to use their wireless devices for any purposes in vast areas of the country. This interpretation is not surprising as Verizon, in its own coverage maps, uses white space to inform customers that no coverage of any kind exists. Contrary to the misleading message conveyed by Verizon’s advertisements, AT&T customers can fully use their wireless devices outside of a ‘3G’ coverage area and undisputedly have coverage in areas depicted by the white or blank spaces on the maps used in Verizon’s advertisements.”

– Excerpt from AT&T’s complaint against Verizon

If AT&T’s lawsuit over Verizon’s allegedly misleading “there’s a map for that” wasn’t a public relations mistake to begin with, it will be by the time Verizon gets through with it. Responding to the suit today, Verizon (VZ) rep Jeffrey Nelson used it to stoke public perception that AT&T’s (T) network is inferior to Verizon’s.

“This is a junk lawsuit. It has no merit,” Nelson told Adweek. “It’s surprising that rather than defend the ‘blue’ hot spots on their 3G map, our competitor instead focuses on their white spaces. The maps clearly note that the comparisons are of 3G service, and further note that voice and data services are available in other places.”

Way to draw attention away from Verizon’s claim of a superior network coverage, AT&T.

Analysts mulling over Nokia’s IP infringment suit against Apple seem to be of two minds about how the action will play out. There are those, like Neil Mawston at Strategy Analytics and Ben Wood at CCS Insight, who warn that Apple (AAPL) is on dangerous ground here at best. It’s almost impossible to build a cellphone without using Nokia’s (NOK) intellectual property, they claim. And if that’s the case with the iPhone, then Apple could end up paying Nokia hundreds of millions of dollars in licensing fees if Cupertino ends up on the losing side of this suit. (Click on text image below to see list of patents at issue.)

Some analysts, like Maynard Um of UBS, see Nokia’s action as a preemptory move against a possible infringement suit from Apple aimed at Nokia’s own multitouch handsets.

“We believe Nokia’s suit could be a pre-emptive move ahead of its new handsets launching soon that may have multi-touch capabilities for which Apple has IP,” Um wrote in a note to clients this morning. “We would not be surprised if Apple eventually files an infringement suit if Nokia’s handsets are deemed to infringe its IP and we believe Nokia would prefer any court action to be combined as prior cases have been. We expect the legal process to be drawn out & could involve US Patent Office reviews.”

The endgame here? Most likely an out-of-court settlement and cross-licensing agreements–assuming Apple’s willing. After all, Nokia is on record admitting its fondness for Apple’s technology.

Asked once about the striking similarities between a touchscreen device it was designing and Apple’s iconic handset, Anssi Vanjoki, Nokia’s head of multimedia devices replied, “If there is something good in the world then we copy with pride.”

Check out the video:

The online auctioneer reported revenue of $2.23 billion, up six percent from a year ago, while net income fell 29 percent to $350 million or 27 cents per share. Excluding some items, earnings were 38 cents a share. Analysts who follow eBay expected the company to turn in a gain of 37 cents per share on sales of $2.14 billion.

Gross merchandise volume–the value of all goods sold via eBay–rose seven percent from the same period last year. Analysts had believed it would drop between five and 10 percent.

EBay said it sees fourth-quarter earnings of 38 cents to 40 cents a share, on revenue of $2.2 billion to $2.3 billion.

“Our third quarter results were strong, with PayPal gaining momentum and market share worldwide and our core eBay business showing positive trends,” John J. Donahoe, eBay’s chief executive, said in a statement.

NOTES FROM THE EARNINGS CALL

On business overall:
eBay CEO John Donahoe: “These are strong results for a strong company….We’re seeing our turnaround efforts begin to pay off.”

On the economy:
Donahoe: “The economy as we see it is stable, and we’re cautiously optimistic about consumer spending going into the holiday.”

On the Skype lawsuit:
eBay CFO Bob Swan: “We’re highly confident in our position.”

This Weekend Update is particularly exciting because of all the things happening here at All Things Digital. There is, of course, the upcoming D7 Conference, which promises to be more tech-extravaganza fun than a tweet from @sockington (if only half as cute), but this past week has also seen the launch of our very own iPhone app, meaning ATD has gone mobile–smart news for your smartphone (we’re still working out potential taglines).

Like past D: All Things Digital conferences, D7 boasts a great lineup of speakers and industry leaders. This year, the gang that’s all here is full of personality, wit, chutzpah and all that other good stuff that’s sure to make this one of the most interesting and revelatory events yet.

For instance, Microsoft (MSFT) is rumored to be debuting its latest upgrade to its search engine, Kumo, at D7. The conglomerate sorely needs a win here, especially in its losing battle to the ubiquitous Google (GOOG) for market share in search. Search was a big topic in general this week as Kara Swisher liveblogged Yahoo’s (YHOO) “chalk talk” and interviewed one of its speakers, head of Yahoo Labs and Yahoo Search Strategy Prabhakar Raghavan, an exchange in which Kara gets Raghavan to exclaim WOO! for “web of objects.” In addition, Google search bigwigs Larry Page, Eric Schmidt and Marissa Mayer could be found across several universities this week dispensing “be more lazy” speeches to fresh graduates.

This was also the week with the IPO for OpenTable, the online restaurant reservation company being the first in Silicon Valley to go public in a long time. Kara Swisher and John Paczkowski give their takes on the offering.

It was also a week of many faceoffs. Here’s a smattering of those that went tete-a-tete this week:

• Craigslist vs. Henry McMaster. Winner: Craigslist. The online classifieds site retaliated with a lawsuit of its own after the South Carolina Attorney General threatened legal action.
• Microsoft vs. the European Commission: In the latest antitrust case development, Microsoft and the EC have been going head to head over scheduling issues, of all things.
• L’Oréal vs. eBay. Winner: eBay (EBAY). L’Oréal lost its latest lawsuit against the Web auctioneer over trademark-infringing cosmetic products sold on the site.
• CollegeHumor vs. Amazon: More of a prank than a bout, CollegeHumor gamed Amazon’s (AMZN) system by artificially driving up sales of the Three Wolf Moon T-shirts, complete with outlandishly positive product reviews.
• Comcast vs. Disney: Though Comcast (CMSCA) wasn’t pleased with Disney’s (DIS) partnership with online video site Hulu, the two companies were able to put aside their differences to form an ESPN360 pact.

More next weekend, but in the meantime, look out for all our coverage of D7!

Sources briefed on the matter say DOJ attorneys have contacted Google (GOOG) as well as the Association of American Publishers and the Authors Guild about the antitrust implications of the agreement. Presumably at issue here are concerns over the settlement’s opt-out terms–authors and publishers who don’t opt out have effectively opted in–and the fate of orphan works, books still in copyright but whose copyright owners are unknown.

Orphan works number in the millions and the fear is that this settlement gives Google a powerful blanket license for them. As Pamela Samuelson, director of the Berkeley Center for Law & Technology, recently noted:

An estimated 70 per cent of the books in the Book Search repository are in-copyright, but out of print. Most of them are, for all practical purposes, “orphan works,” that is, works for which it is virtually impossible to locate the appropriate rights holders to ask for permission to digitize them….The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world….Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions….Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.

Samuelson concludes that the Book Search agreement as written is essentially a major restructuring of the book industry and an anticompetitive one at that. If that is indeed the case–and Google maintains that it is not–it’s worrisome indeed. Certainly, it’s reason enough for the DOJ to give the agreement a good once-over.

Welcome back to Weekend Update, where we showcase some of the highlights from this site over the past week.

In the umpteenth round of the old media versus new media match, the Associated Press in its annual meeting this week played into the stereotype of the grizzled no-nonsense editor who shakes his fist at the new interweb thing (or was it intertube?) and its feisty friend Google News, who are running amok on his lawn. In addition to trying to “protect news content from misappropriation,” AP board chairman and MediaNews group CEO Dean Singleton emphasized that print was the “meat,” while online was merely the “salt and pepper.” Unimpressed, BoomTown thought Singleton was singling out the steak while missing the sizzle.

In response, Google (GOOG), or He Who Was Not Named, posted a polite, if rather ambiguous, statement on its public policy blog, which was just begging for translation. Also doing some interpreting of his own, AP executive Jim Kennedy spoke with MediaMemo on just what all the fire and brimstone was about. In quieter newspaper-related news, The Wall Street Journal continues on its quest to spread pay content online, possibly through niche content, according to WSJ.com Executive Editor Alan Murray. Also experimenting online is the recently opened news Web site, True/Slant, a heady combination of journalism, social networking and advertising.

Another news item that’s gotten people talking is the fallout from the collapsed IBM-Sun merger, aka Sun pulls a Jerry Yang. (Oh Jerry, the Internet kids because it loves… loves to kid! Pwn-age.) Following the news of the collapse, Sun (JAVA) shares dropped more than 27 percent, leading analysts and Digital Daily to predict difficult times ahead for the company, here and later here as the stock continued its fall over the week. Besides quashing its own stock price, Sun also quashed rumors that chairman and co-founder Scott McNealy would replace CEO Jonathan Schwartz.

Other nonthematic highlights this week:

BoomTown got the exclusive on the anticipated talks between Yahoo’s (YHOO) Carol Bartz and Microsoft’s (MSFT) Steve Ballmer in which the two CEOs discussed the possibility of a search and advertising partnership. Speaking of exclusivity, Google and Microsoft like totally want to be Twitter’s new bff, or maybe go steady if Twitter’s interested.

Digital Daily ruminated on speculations of Time Warner (TWX) doing an AOL spinoff, especially after its hire of former Google exec Tim Armstrong and its attempts to amend debt agreements as per an SEC filing. Also in the rumor mill: The iPhone 3.0 may support onboard video editing. Less of a rumor and more of a slap in the face, to Apple (AAPL) at least: Elan Microelectronics has taken off the gloves (and taken up the lawsuit) because it believes that Apple’s products infringe on its touchscreen patents.

MediaMemo goes over the facts about Vevo, the new online music video hub that’s a partnership between Google’s YouTube and Vivendi’s Universal Music Group, with interesting ramifications for both. Meanwhile, iTunes has put in place its new tiered-pricing system, in which songs will now cost 69 cents, 99 cents, or $1.29. But in a question that shocked no one: Where are the all the lowest-tier songs? Don’t worry your pretty little heads, said Big Music, they’re on their way.

In a new Mossblog, Walt Mossberg reports from the battlefield of the growing Smartphone Wars, in which iPhones, BlackBerries and others are engaged in mortal combat. In the Mossberg Solution, Katherine Boehret reviews BumpTop, an application that takes your flat, plain old X-Y plane of a desktop to the next dimension, that is, the third dimension.

More next week!

At issue here are two Elan patents. The first–the company’s so called ’352 or “multi-finger” patent–describes a “multiple fingers contact sensing method for emulating mouse buttons and mouse operations on a touch sensor pad.” The second, or ’353 patent, describes a a “capacitive touchpad integrated with key and handwriting functions.”

“The ’352 patent is a fundamental patent to the detection of multiple fingers on a touchpad or touch-sensitive input device to enable the detection and use of a multi-finger gestures in various applications,” Elan claims in its suit. “Apple has been on notice of its infringement of the ’352 patent since early 2007 and has continued to utilize the ’352 patent invention without authorization. In addition, the Apple iPhone and iPod Touch also permit users to switch the capacitive touchscreen between keyboard and handwriting modes, and thus falls under the scope of the ’353 patent.”

Interesting claims. Especially since Elan issued a statement back in February dismissing the idea that there might be some overlap between its multi-finger patent and Apple’s 949 “multi-touch” patent. From that statement:

Some market experts have expressed that the issue of Apple’s multi-touch patent might adversely affect ELAN’s competitiveness in the multi-touch market in some way. ELAN … feels that the market has over estimated Apple’s 949 patent. The content of the 949 patent is quite broad and widespread as it might seem like an iPhone user’s manual. However, the final scope of claim granted is mainly based on an angle of initial movement of a finger contact with respect to the touch screen display to determined one or two dimensional command. Although the patent comprises of 20 items covering software, firmware, and memory storage, its scope is actually limited within the establishment of the one and two-dimensional commands mechanism. Simply speaking, it emphasizes more on one or two-dimensional commands finger gesture recognition rather than about multi-touch technology. Hence, to make things unmistakably clear, having a multi-touch feature can not be interpreted as an infringement of the 949 patent. 

As to the ongoing reports that Apple’s 949 patent will have an unfavorable blow to ELAN’s competitiveness, ELAN explains that there is actually no conflict between the multi-touch technologies used by ELAN and Apple. None of ELAN’s current customers are using or plan to adopt the patent claim in the future. Therefore, the approval of the 949 patent will have no adverse effect on ELAN’s expanding Multi-Finger™ market. As to the 949 patent’s market value, ELAN feels that the general consumers, as viewed by the major players in the handset industry, are not enthusiastic or feel the need of operating their mobile phones with the “one and two-dimensional” commands.

An odd thing to say two months before filing suit against the company with which you purportedly have no conflict, don’t you think? I wonder what changed…

In sum, Microsoft engaged in bait and switch–assuring consumers they were purchasing ‘Vista Capable’ machines when, in fact, they could obtain only a stripped-down operating system lacking the functionality and features that Microsoft advertised as ‘Vista.’”

– Excerpt from the Vista Capable lawsuit

Looks like the three-hour deposition Microsoft CEO Steve Ballmer gave in the so-called “Vista Capable” class action suit was for naught. A judge Wednesday ruled that the lawsuit, which has troubled Microsoft for nearly two years now, cannot go forward as a class action. Instead, plaintiffs who claim Microsoft labeled PCs “Windows Vista Capable” even though the computers were capable of running only the stripped down “Home Basic” version of the OS, must pursue their cases individually. Seems the plaintiffs were unable to convincingly demonstrate that the “Windows Vista Capable” marketing program resulted in increased sales for Microsoft, an argument essential to supporting their class action claim.

A lucky turn of events for Microsoft (MSFT) and one that could potentially save the company millions of dollars in compensatory damages and, by some accounts, up to $8.52 billion-worth of memory and graphics cards if it should lose the case–assuming any of the plaintiffs have the courage to go up against Microsoft on their own.