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Judge Cooke questions EC settlement

Day four: Patents, protocols and intellectual property

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Europe vs MS The Court of First Instance reconvened after lunch for more grilling of both parties by Judge John D Cooke.

Samba's Dr Andrew Tridgell was first in the firing line. He was questioned on protocols, algorithms and how they relate to patents.

Tridgell explained that algorithms usually depend on the programming environment - so Windows and Unix are likely to be very different. He said the methodology of patents in a Windows environment was not possible in a Unix environment so they don't infringe. In practical terms he told the court that a specification and an implementation were separate.

Judge Cooke returned to the Commission's definition of the market used to show Microsoft abuse. Commission advocate Whelan made a spirited defence of an issue that clearly worried Judge Cooke.

The court then returned to copyrights and patents and how far Microsoft was entitled to protection. Whelan said that only Microsoft could answer that question, and it had failed to provide such evidence to the Court. There followed a frankly baffling debate on the nature of intellectual property, trade secrets, copyright and property holder's right to keep that information.

Cooke also questioned the Commission's claim that Microsoft was guilty of "disruption of supply" in relation to ending an agreement with AT&T to license them APIs.

After what appeared to be a difficult day for the Commission under tough questioning from Judge Cooke, Court president Bo Vesterdorf suggested delaying Microsoft's final pleadings until tomorrow morning. Discussion of the fine then concludes the hearings.

Although it seemed that the Commission got the harder time of it today it would be dangerous to read too much into this. Judges may want to ensure they are happy with a Commission decision they are minded to support.

Or it could mean nothing at all. There are 13 judges and a decision is not expected for several months, so assuming they have already decided and are off to play volleyball for the summer before telling us is dangerous .®

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