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Kolenka:
Oddly enough, that might have been me (DFWLaw over there). And that was pretty much my gut feeling at the time based partly on how big a deal some of the principals at Spring Design were making over their impression that they had a deal in place.
And unfortunately, just appearing different isn't going to help in this case (though the Alex did look like a big Nintendo DS in March/April). If it were just a case of appearing similar, we'd be dealing with a trade dress suit which B&N might have a harder time with.
The issue here is Spring Design is alleging that the combination of features that makes up the Alex would have been impossible for B&N to select/implement without the information Spring Design provided.
Incidentally, my feeling about that theory has been reinforced by an allegation made in B&N's response to the complaint that Spring Design is using the suit to attempt to pressure B&N to agree to a content deal for Alex. B&N claims that Spring executives contacted them after the suit was filed, offering to resolve it if B&N agreed to the deal.
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