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Fee voids Sun's Java suit, MS says

Court papers unsealed today argue Sun's May 1998 acceptance of $3.75 million voids its claims, while the judge appoints a special master.

Court papers filed by Microsoft argue that Sun Microsystems' May 1998 acceptance of a $3.75 million licensing fee voids claims that the software giant has breached its license for Sun's Java.

The two industry heavyweights edged closer to a September 10 hearing on Sun's motion for preliminary injunction against Microsoft's Java usage, as U.S. District Court Judge Ronald Whyte appointed a special master in the high-profile case and Microsoft released a redacted response to Sun's motion, also asserting that Microsoft's Java passes mutually agreed compatibility tests. Sun sued Microsoft last October, saying the Redmond, Washington, company was trying to fragment its Java programming code and undermine its vaunted cross-platform capabilities.

In its redacted response, unsealed late today, Microsoft says that "There is no dispute that the payment was received," and that "Sun cannot deny that it knew about Microsoft's alleged breach when it accepted the payment."

Sun was not immediately available for comment.

Microsoft's response contends that its license agreement with Sun specifically describes the Java compatibility tests Microsoft products must pass, and that its products indeed pass these tests. Sun's suit, according to Microsoft, is based on tests other than the mutually agreed standards.

The Sun tests which Microsoft says lie outside the license agreement evaluate for Sun's Java Native Interface (JNI), according to the response. The document contains part of a deposition in which Bob Muglia, Microsoft vice president of server applications, describes an instance in which Alan Baratz, president of Sun's software group, confirms that Sun recognizes Microsoft's right to define its own native code interfaces.

"We have been over that many times before," Baratz apparently said during early morning negotiations. "We know that only Microsoft has the right to define these interfaces. Let's move on," he is quoted as saying in Muglia's deposition.

Even if its products did not pass the specified tests, reads Microsoft's response, because Microsoft did not have to pass Sun's tests prior to receiving its license, its alleged failure to be Java compatible would constitute a breach of contract, rather than copyright infringement, as Sun claims.

Separately, retired California state court judge John A. Flaherty was appointed special master, charged with overseeing the public release of sealed court documents, according to a brief statement made by Sun.

Flaherty's first task will be to evaluate Sun's motion for a preliminary injunction, said to contain sealed information. The injunction would force Microsoft to either change its implementation of Java, stop distributing the technology, or ship Sun's version along with its own.

Judge Whyte will hear arguments regarding the injunction following evidentiary sessions on September 8 and 9. Last month, Whyte said he wanted a special master to review the requests and decide which documents can be released. Judge Whyte will make the final decision as to what will be unsealed.

Sun and two news agencies have filed motions to make public various sealed court documents in the case.

Also today, Judge Whyte scheduled two two-hour tutorials on Java in his San Jose courtroom on Monday, August 31. Sun and Microsoft will each present a session.