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MS retreats after judge slaps down attorney

Abrupt termination of cross-examination suggests crisis in defence camp

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Microsoft pulled the plugs on its cross-examination of Edward Felten yesterday, earlier than scheduled, and probably a lot earlier than expected. Microsoft attorney David Heiner had earlier collected a telling-off from the judge, and this probably destroyed his ability to question Felten further. Lead Microsoft attorney John Warden claimed the change of plan was because Felten didn't really have much to say, but it looks a lot more like a retreat in disorder. Felten's testimony is good, solid evidence that the association of Explorer and Windows isn't as close as Microsoft claims, and that the 'integration' is dubious, even anti-competitive in nature. Having this guy without that much to say on the stand for a couple of days, saying this over and over again, clearly wasn't going to be a winning scenario for Microsoft. Judge Penfield Jackson's rebuke of Heiner meanwhile shot holes in any alternative strategy. "You're playing word games with him now," he said. "He's told you a dozen times or more there is code in each of the files, some of which pertains to browsing functionality and some to Windows. To continue to pursue this in the hope he will make a slip of the lip is not appropriate cross examination," Jackson said. Jackson clearly felt Heiner's questioning was fact-free, and simply designed to trip Felten up. Once he'd throttled that one, Heiner maybe didn't have any more questions to ask. But it's worse than that for Warden and his team. Microsoft's attorneys have spent a lot of time and effort on trying to catch witnesses out, and as the judge has clearly become hostile to this approach, the defence strategy is now in big trouble. Warden joined the rentaquotes on the courthouse steps to claim victory, saying that the government had failed to establish what code was Windows, and what browser, so had failed to demonstrate that they were separate products. Heiner had repeatedly asked Felten this inside the court, but now he's not allowed to, the steps will have to suffice. ® Complete Register trial coverage

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