In its latest bid to prevent Apple from winning the trademark to the term "App Store," Microsoft is now arguing that the Cupertino, Calif.-based company's response to the request for summary judgment is too long and typed in a font that is too small.
Microsoft points out that the rules of practice before the Trademark Trial and Appeal Board limit responses to 25 pages, double-spaced, in a font size of at least 11 points. (These are indeed the requirements set out by 37 C.F.R. 2.126(a)(1) and 2.127(a).) According to PCMag.com, Microsoft then urges the court to reserve judgment until Apple replaces its 31-page brief, which Microsoft believes is typed in a font smaller than 11 points, with one that meets requirements.
It's true that agency form and filing rules are there for a reason, and they shouldn't be ignored. However, even assuming Apple's response brief is too long - I haven't seen it so I couldn't say - how exactly did Microsoft determine that the type size is smaller than 11 points? By eyeballing it? That's not exactly a foolproof method. Maybe Microsoft's attorneys opened it in a word processing program and highlighted the body to see what the font size field said? Your guess is as good as mine.
Nonetheless, let's just assume that the brief is too long and the font is too small. If those are the only things Microsoft found to refute, could it be the company is stalling to delay the inevitable? Call me a pessimist, but if you're relying on a technicality, it's often because you have nothing substantive on which to stand.
At least the dispute provided a bit of levity for the afternoon.