Agreed entirely, though I don't think a different set of facts is a particularly hard hill to climb. Possibly as simple as "the plaintiff makes products that aren't games and/or Apple directly competes with the plaintiffs offerings" e.g. Hey or Spotify. Finding that plaintiff who also has a ton of money and has a controlling interest who is at least as hardheaded as Tim Sweeney is a whole different issue, especially since the Automattic guy is so busy right now.