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DOJ submits new evidence

Prosecutors urge a judge to reject Microsoft's request to throw out critical parts of the antitrust suit and slam CEO Bill Gates.

Prosecutors today released new evidence concerning Microsoft's dealings with its competitors and partners that is designed to bolster the government's case and show why the court should deny the company's request to dismiss the antitrust suit.

The brief also accuses chief executive Bill Gates and other Microsoft executives of being uncooperative in pretrial testimony, showing "an astonishing lack of recall" when answering questions.

According to the brief, Microsoft thwarted competition in the arena for Internet software by pressing Intel, Apple Computer, RealNetworks, and Intuit not to market certain products that conflicted with the software giant's strategic objectives.

When combined with previous evidence introduced in the case, the new claims establish a "pattern of predatory conduct" that attempts to preserve Microsoft's monopoly position in the software industry, the brief maintained.

The document, filed last night in U.S. District Court in Washington, responds to a motion Microsoft filed last month and was released today in heavily "redacted," or censored, form. Microsoft had argued that the facts of the case are so compelling that Judge Thomas Penfield Jackson should rule in Microsoft's favor without the need of a trial.

"Given the strength and breadth of the plaintiffs' proof, Microsoft's claim that there are no genuine issues of fact is frivolous," government attorneys argued in the 89-page brief.

Prosecutors also claim that Microsoft "entered into a series of anticompetitive agreements with customers and competitors" to prevent Sun Microsystems' Java from gaining market acceptance. Details of those deals were not included in the public version of the brief.

In addition, the filing accuses Microsoft of allegedly inducing Apple not to market its QuickTime multimedia software for the Windows platform and of encouraging Intel and financial software maker Intuit not to enter into deals with Microsoft rivals, including Netscape Communications.

"The cumulative effect of Microsoft's anticompetitive and illegal conduct has been, and continues to be, to increase Microsoft's share of Internet browser usage; to reduce the revenues and increase the costs of rival browser manufacturers; to deter innovation by other browser manufacturers and, more generally, by others in the industry that would otherwise seek to develop new software products in competition with Microsoft; and to further entrench Microsoft's operating system monopoly," the brief contends.

Moreover, it accuses Microsoft executives of stonewalling federal and state prosecutors in their investigations of the company. "Gates, who is placed at the center of key events by numerous documents, displayed a particular failure of recollection at his deposition [last week]," the Justice Department's brief claims. (See related story)

The company has steadfastly denied all antitrust charges against it. "It is unfortunate the government has lost faith in the substance of its case and is resorting to this name-calling," Microsoft spokesman Jim Cullinan said. "The facts don't support the government's case, so it's not surprising the government doesn't want to hear the facts."

The brief contends that Microsoft has consistently distorted both the facts and the law central to the case. For example, prosecutors faulted the company for relying on favorable lower-court decisions, including a June appellate ruling that overturned a preliminary injunction issued in a related case.

The ruling, issued by the U.S. Court of Appeals for the District of Columbia, held that the government could not prevent Microsoft from combining software products so long as there was a "plausible benefit" to consumers. Although issued in a separate case filed last October, the decision gives Microsoft significant ammunition in its current case as well.

But the government maintained that the appellate ruling does not alter case law established by the Supreme Court. In one of them, Jefferson Parish Hospital Dist. No. 2 vs. Hyde, the court essentially ruled that it is illegal to "tie" products when separate demands for them exist. The government has consistently maintained that there are separate demands for Microsoft's operating system and its browser.

The brief repeats earlier charges that the company "set out to cut off Netscape's air supply by giving Microsoft's browser away for free...and entering into agreements with Internet content providers which required those ICPs to agree not to pay Netscape."

The filing adds that "Microsoft believed that it could not win what is repeatedly described as 'the browser war' legitimately and on the merits," so it began to resort to allegedly predatory and anticompetitive agreements and conduct.

The document contends that Microsoft's motion for summary judgment "falls short" of meeting legal precedent. The case is set to go to trial September 23.