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Microsoft moves to have case thrown out

Probably without a great deal of success at this juncture...

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Microsoft yesterday asked for the Department of Justice (DoJ) antitrust suit to be thrown out or narrowed. The move, which has been expected
since last week, was made at the same time as the company filed its response to the suit, but seems unlikely to make much headway.

Microsoft argues that, as the same court's earlier preliminary injunction forcing it to offer Windows 95 and Internet Explorer separately was thrown out on appeal, it should be free to offer IE and Windows 98 together. Two allegations have to be addressed if the company is to succeed, however.

The previous injunction was granted on fairly narrow terms - the court accepted that Microsoft was acting anti-competitively by forcing its OEMs to bundle IE along with Windows 95. It was overturned on the basis
that Microsoft was in fact free to integrate the two, and to offer IE as part of the operating system. Now, however, the motivation for integrating the two also needs to be taken into account.

If Microsoft can demonstrate that it always planned this integration, and did not implement an integration policy in order to destroy NetScape's business, this aspect of the DoJ's case will be threadbare, and will be tossed out. But despite the mountain of evidence Microsoft is producing in support of this, it's highly unlikely that the judge will accept that the point needn't be argued in court.

Aside from this, Microsoft has to deal with a string of other allegations relating to its policies on competition, and again most of these are sufficiently arguable for the court to want to deal with them when the trial starts on 8 September. ®

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