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Microsoft, Caldera may finally go to trial

In a 68-page ruling, a federal magistrate rejects Microsoft's motions for summary judgment, forcing the case to trial possibly in January or February.

Microsoft and Caldera appear to be headed for a legal showdown early next year.

In a 68-page ruling issued late yesterday, a federal magistrate rejected Microsoft's motions for summary judgment, forcing the case to trial possibly in January or February.

"This is no surprise, and we look forward to making our case at trial," Microsoft spokesperson Jim Cullinan said.

Orem, Utah-based Caldera claims Microsoft used its dominance in the software industry in the late 1980's and early 1990's to crush competition from a product called DR-DOS, which Caldera obtained in 1996. Caldera is seeking $1.6 billion in damages.

"The judge denied the final four motions--and this means he denied all the motions--Microsoft presented for summary judgement," said Caldera spokesman Lyle Ball. "So he is saying we have sufficient evidence to support our claims and proceed to trial."

Had the judge granted any of Microsoft's motions, he could have ruled on that aspect of the case without presenting it to a jury, said legal experts.

"This means we can present our entire antitrust case to a jury trial, which is scheduled to begin January 17 in the U.S. District Court in Salt Lake City," Ball said. "We are very glad Microsoft was unsuccessful in breaking up our case."

Caldera last year produced an internal Microsoft email message to back its claim. The company alleges Microsoft engaged in other anticompetitive behavior as well.

"We continue to believe that Caldera's claims have no merit and remains an attempt of one company, who paid $400,000 for this lawsuit, to get money from Microsoft," said Cullinan. "This case is only about money, since Caldera was never harmed by any of the allegations they name in its complaint."

Because juries can be so unpredictable, Microsoft would have preferred the judge settle the matter, said Rich Gray, intellectual property attorney with Outside General Counsel for Silicon Valley.. "Anytime you step into a jury trial you're taking a risk, even if you have what you believe to be a strong case."

Networking rival Novell sold DR-DOS to Caldera, which has waged an ongoing war with Microsoft in the marketplace and courtroom.

"This lawsuit is about obsolete technology, MS-DOS, and we believe that when you look at each and every allegation, Caldera fails to meet its burden of proof," said Cullinan.

Waiting for "findings of fact"
In other matters, Microsoft and the Justice Department await a federal judge's "findings of fact," which could come as early as tomorrow. In its historic antitrust trial against the software giant, the government and 19 states allege Microsoft used its Windows monopoly to crush browser rival Netscape Communications, now owned by America Online.

Antitrust experts point out that some issues of Caldera's suit are similar to the government's antitrust suit against Microsoft. In that case, the government alleges Microsoft tied the Internet Explorer browser to Windows in an effort to leverage its monopoly power from one market into another.

Caldera alleges something similar, claiming MS-DOS and DR-DOS are operating systems and Windows is a consumer graphical interface separate from the operating system.

Caldera faces two hurdles if it goes to trial, said University of Baltimore Law School professor Robert Lande: proving consumer harm and showing MS-DOS is separate from Windows.

"Let's assume for the sake of argument, Microsoft did unfairly wipe out DR-DOS," Lande said. "You can't bring DR-DOS back, so the only thing you could do is take a big pile of money from Microsoft and give it to Caldera, but what difference does that make from a consumer's point of view?"

There other issue is more problematic for Caldera, Lande said. "If this case tried was tried back in 1991, you could have argued this was two products tied together. Today, I wonder if we would make that same judgment, because we're so used to thinking of Windows as one product. If we say it's one product, Caldera loses and that's going to be their toughest issue."

Lande worked for Digital Research, the original developer of DR-DOS, about ten years ago and helped draft the first allegations against Microsoft in this matter. He no longer has any financial interest in its outcome.