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Microsoft: Throw Out The Lawsuits

Saying there is no need for a trial, Microsoft asked a judge Monday to throw out the antitrust lawsuits filed by the Justice Department and 20 states.

Microsoft, which makes the popular Windows operating systems, also accused the government in an 88-page court filing Monday of asking it to develop "a new and inferior operating system" that doesn't include its bundled Internet browser.

"It is clear that the government will not be able to prove its case," William Neukom, a company vice president, said in a statement.

The Justice Department said Monday that Microsoft's court filings contained "nothing new."

"Ever since we brought this case, Microsoft's position can't be squared with the company's own documents much less with the large body of evidence that will be introduced at trial," Justice spokeswoman Gina Talamona said.

U.S. District Judge Thomas Penfield Jackson, who is in charge of the antitrust case, appeared unlikely to grant Microsoft's request when the company told him of its intentions during a hearing last Thursday, saying he still anticipated a Sept. 8 trial.

"It's not surprising that somebody would attempt to file a summary judgment motion," said Microsoft critic Mike Pettit, head of the Project to Promote Competition and Innovation in the Digital Age. "Defendants do that all the time, but the way they've teed this thing up, it's a public relations exercise."

Neukom said in an interview Monday that Microsoft was confident its request will get a fair hearing by Jackson.

"He and his law clerks will spend, I'm sure, an appropriate amount of time reading our materials and thinking about them," Neukom said.

In its court filing, Microsoft said it believes a favorable appeals court ruling earlier this summer combined with evidence it has uncovered from business rivals undercuts the most dramatic claims made against it.

The U.S. Court of Appeals for the District of Columbia ruled in June that Microsoft's decision to bundle its own Internet browser within Windows was a "genuine integration," which is legal, because a single combined product offers benefits over separate ones.

That ruling overturned an earlier decision by Jackson in a related case.

The government contends Microsoft's bundling amounts to illegal "tying," because it forces customers who use Windows also to use the company's web browser without any benefit while hurting corporate competitors.

Microsoft also argued that evidence it uncovered from rivals during its trial preparations prove that its actions did not prevent rival Netscape Communications from making its own Internet browser widely available. For example, Netscape announced plans this year to distribute more than 100 million copies of its browser.

However, the Justice Department's antitrust lawsuit cites internal e-mail by Microsoft executives who argued thaasking consumers to download an Internet browser was burdensome.

"My sense is that these people are not very likely to download anything, let alone a browser that takes two hours to download from the Web," Microsoft's Kumar Mehta wrote in a March 1997 e-mail.

Since Microsoft began including free copies of its browser within Windows, Netscape has seen worldwide use of its browser fall from 90 percent to just over 50 percent, to about 68 million copies. Netscape now relies on revenues from other products.

"Is it competition if you get absolutely no revenue for your product?" Roberta Katz, Netscape's general counsel, said in an interview. "What do you do if you get no money? How long do you stay in business? That was their whole goal, to cut off Netscape's air supply."

Written by Ted Bridis
©1998 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed

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