Mires of delay close around MS appeal trial

The company has just a few teensie concerns...

By John Lettice, 26th October 2000

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Is it our imagination, or are the mires closing around the Microsoft appeal? Both Microsoft and the DoJ seem to have agreed that the Appeals Court judges should get a technical briefing next month so that they can understand the issues better, but "a few concerns" raised by Microsoft serve to illustrate how an apparently innocuous matter could turn into a huge wrangle with - oh yes - added delays.

Both sides say they're concerned to ensure that the expert the Court wants doesn't put new or different spin on the territory covered in the trial. This in itself could allow massive scope for argument, considering how wide-ranging the material produced at the trial was. The Doj also seems keen to block any Microsoft attempts to start producing its own evidence while the presentation takes place. But Microsoft's "few concerns" look more like a collection of landmines the company is trying to plant.

It has queried the experience of the expert, Illinois Institute of Technology CTO Michael Hites. He appears, says Microsoft, to have more experience with server operating systems, Unix and NT, and therefore may goof if he tries to extrapolate from this to the desktop OS arena. Note the cunningly planted mine here - if the Court will let them, Microsoft's lawyers will start arguing the toss about the definition of operating systems, relevant markets and so on. And any attempt by Hites to put operating systems into a context, any context, can be presented as introducing material relavant to issues covered in the trial.

So plenty of scope for objections and arguments there.

Next, we have the traditional Microsoft 'what did you do in the OS war daddy,' question. Hites did some research for Sun a while back, says MS - it would like full details, not that it's saying he's biased or anything - yet. Sun, age-old enemy, has recently been looking even more like the deus ex machina that arranged for all the ordure to be dumped on Microsoft, in several continents.

It's also important, says Microsoft, that Hites lets it and the DoJ see his proposed briefing before he delivers it. At which point Microsoft flaks, techies and attorneys will pore over it with a fine toothed comb, and guess what? We'll no doubt have "just a few concerns."

Microsoft has also asked for two lawyers from either side to be present, rather than one. This almost looks like an afterthought, but more probably reflects an intent to keep a close legal eye on Hites, rather than accepting the briefing as a neutral, innocuous aid for the judges. Over by Christmas? Not even Christmas 2001. ®