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Judge denies first MS motions in Caldera case

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MS on Trial "It looks pretty favourable for us" Bryan Sparks, CEO of Caldera told The Register at the end of another day of hearings on Microsoft's nine motions to dismiss the case brought by Caldera against Microsoft's anticompetitive practices against DR-DOS. Judge Dee Benson, in the District Court in Salt Lake City, issued a written order denying Microsoft's first three motions, saying that although each practice of which Caldera had complained might not of itself be an antitrust violation (under section 2 of the Sherman Act), together they might form part of an illegal pattern of behaviour. The motions concerned Microsoft's disparagement of DR-DOS; Microsoft's licensing practices for MS-DOS; and Microsoft product pre-announcements intended to undermine sales of DR-DOS. Of the four Microsoft motions heard yesterday, all were denied from the bench. These were about a technology tying claim; perceived and intentional incompatibilities introduced by Microsoft to persuade users that DR-DOS was not reliable; untrue European and Japanese claims by Microsoft; and a state law claim of tortious [non-contractual] interference. The biggest headache for Microsoft is that Caldera has been successful so far in court in showing that DR-DOS could replace MS-DOS in Windows 9x. Indeed, the claim has a very sound basis for the simple reason that Caldera demonstrated this substitution at CeBIT in March 1998. That the actual operating system in Windows 9x (which is of course still DOS) can be replaced by a competitive one exposes the hollowness of Microsoft's claim that Windows 9x is an operating system. Windows (but not NT) is still a GUI shell wrapped around DOS, as was Windows 3.x, whatever Microsoft may try to claim to the contrary. This could prove to be very expensive indeed for Fort Redmond. Judge Benson was peeved that Microsoft had been "grandstanding", a reference to doing everything possible to cause delay: "Spinning this case is not helping the court with the facts," he noted. The next step is for a hearing on the two remaining motions next week, but Microsoft cannot be very optimistic about the outcome. Yesterday, Microsoft associate general counsel Tom Burt said he was disappointed with the rulings. Although Burt gave no indication, the possibility of an appeal by Microsoft cannot be ruled out. It is quite possible that Judge Jackson's ruling in Washington will be made before the Salt Lake City trial has finished. This gives extra impetus for Microsoft to seek a consent decree in Washington at the last moment, since this would technically avoid the DoJ's case from affecting the outcome in Salt Lake City. Of course, the jury would not be influenced by the niceties of such matters, and would probably see any capitulation by Microsoft as an admission of guilt, however Microsoft might have spun its "accommodation" of the DoJ's desires. The Caldera trial will start on 17 January next year, with a jury that is very likely to favour the home team. This is not as unfair as it might seem, since Microsoft has been playing from time-to-time in Washington to appeals court judges who are as a body nearly all politically unsympathetic to antitrust cases. ® Complete Register Trial coverage

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