Judge sets scene for battle over modular Windows

Microsoft trial judge Colleen Kollar-Kotelly yesterday allowed the unsettling states to introduce evidence indicating that a modular version of Windows, based on XP Embedded, was possible. The evidence, in the shape of testing consultant James Bach, is a late entrant, but the judge nevertheless allowed it, saying "I'm going to allow Mr. Bach's testimony primarily for the reason that I think the information should be presented to the court, that I should have it."

Bach's professed mission, and the reasoning she presented in her preamble to this decision are interesting. Bach, according to CKK, is intended to "testify that XP Embedded can be configured as a full-feature desktop operating system capable of running on standard personal computers.

"And he'll testify that he created an operating system configuration using Windows XP Embedded that would provide the functionality available from the standard XP operating system, including the ability to install and run applications.

"Mr. Bach would further testify that he created an operating system configuration using XP Embedded which omitted various Windows components. Plaintiffs indicate that Mr. Bach will testify that he was able to run and test various applications on these embedded run-times. At least that's what I understood his testimony was."

She considers the testimony related to this area she's already heard, and notes: "There has been extensive testimony as to whether XP Embedded will substitute for Windows XP as a general purpose PC operating system, and there's been no testimony that I can recall, in looking through it quickly last night, about anyone who sat down to try using XP Embedded as a PC operating system which will support general purpose applications."

Microsoft expert witness John Bennett did some stuff with XP Embedded, but CKK has noted that it didn't address the states' claims that it could be the basis for a modular Windows. "In short, he doesn't testify as to what XP Embedded cannot do. He testifies as to what it was created to do, how one uses it to perform that function, and what end result the intended use produces; far from engaging in testing of plaintiffs' theory regarding the usefulness of XP Embedded, Dr. Bennett merely installed XP Embedded, looks like, and created various run-times on his laptop for the purpose of informing his testimony about how the product works."

Which is another thing altogether. This doesn't necessarily help the states, as there's supposed to be on rebuttal, and if there isn't anything to rebutt, then they don't need Mr Bach, right? They don't need him for other witnesses either:

"Now, with regard to plaintiffs' additional claim that Mr. Bach's testimony is responsive to testimony offered by Mr. Gates and Mr. Short, once again, neither Mr. Gates or Mr. Short -- and I'm not talking about depositions, I'm talking about in trial -- testified that they tried what Mr. Bach has done and whether that was successful or not.

"They also talked about how the system might be expected to work based on their understanding of the cross dependencies and how it was intended to be used. These witnesses don't testify that they tried what plaintiffs propose and failed.

"In this light, it seems apparent that plaintiffs' proposed rebuttal testimony takes a step beyond responding directly to defendant's case.

"Not withstanding all of this, I'm going to allow Mr. Bach's testimony, primarily because I think that the information should be presented to the Court, that I should have it, and secondarily, the testimony is not an improper subject for rebuttal."

So she kept them on tenterhooks right until the end. She has also set the scene for what could be a titanic struggle. Testimony from Bach goes to Microsoft tonight, and Bach must be available immediately for deposition. Any objections from Microsoft should be in by Friday, 10am. Microsoft may introduce its own surrebuttal (new one on us too) witness immediately after Bach, no later than May 16th. Could be worth booking the ringside seats for this sequence. ®