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Microsoft renews bid for exclusion

Microsoft says recent Justice Department allegations are "tangential" and renews a request for the evidence to be excluded.

Setting off speculation about yet another trial delay, Microsoft said allegations recently introduced into the historic antitrust suit against the software giant are "tangential" and renewed a request to exclude the material from trial.

The allegations, first introduced in a court brief the government filed two weeks ago, span a broad range of products, including Sun Microsystems' Java and Internet broadcast software made by Apple Computer and RealNetworks. Antitrust prosecutors claim the new allegations help establish a "pattern" of anticompetitive acts by Microsoft designed to maintain its current operating system monopoly and build new ones.

In a court brief filed late today, Microsoft asked U.S. District Judge Thomas Penfield Jackson to exclude the allegations from trial, now set to start October 15 in Washington, D.C.

"The issues that plaintiffs belatedly seek to import into this action are tangential at best to the claims asserted in their complaints," Microsoft attorneys argued. "Plaintiffs are essentially attempting to combine a number of separate lawsuits and investigations with this case."

Under court rules, Microsoft added, the government should be allowed to add the new material only by formally amending its complaint, usually a lengthy process.

In May, the Justice Department and 20 states sued Microsoft, alleging a broad course of conduct that violates antitrust laws. While the touching on a number of areas--including Sun's Java--the suit primarily focused on Microsoft's alleged attempts to freeze Netscape Communications out of the Web browser market. Chief among Microsoft's alleged misdeeds was the decision to tie its Internet Explorer browser to its Windows operating system.

A federal appeals court ruling, however, cast serious doubt on the viability of the government's browser claims. That decision, issued in June by the U.S. Court of Appeals for the District of Columbia, held that integrated products generally pass antitrust muster if the combination provides a plausible benefit to consumers.

After the prosecutors introduced the new evidence in a court brief filed two weeks ago, Microsoft accused the government of plotting an "ambush" just weeks before trial was to begin and asked Jackson to exclude the new allegations. Jackson has yet to rule on the motion.

Today's filing attempts to pinpoint the exact issues Microsoft believes are "extraneous." They include allegations that Microsoft:

  • induced Intel to abandon work on software relating to "native signal processing" and Java.

  • attempted to thwart Apple and RealNetworks from marketing multimedia software for the Windows platform

  • tried to hijack Java by creating proprietary tools for Sun's programming language.

    In the event that Jackson decides not to exclude the new evidence, Microsoft has asked that the current format of the trial, which has been limited to 12 witnesses per side, be modified.

    "If plaintiffs are permitted to transform this action into a plenary monopolization case--involving supposedly anticompetitive acts not specifically alleged in the complaints--then the schedule for trial and the procedures to be observed should be adjusted to reflect this profound change in the nature of the case," Microsoft's brief said.

    Last week, Jackson delayed the start of the trial, then set for September 23, by three weeks. Microsoft asked that Jackson consider its motion at a conference scheduled for September 17. Government representatives were not immediately available for comment.