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Redmond: DOJ is desperate

Microsoft accuses regulators of filing a groundless suit and of trying to rewrite the case just weeks before trial.

Microsoft today accused antitrust prosecutors of filing a groundless suit four months ago and then desperately trying to rewrite the case just weeks before the trial is set to begin.

In a 48-page brief filed in U.S, District Court in Washington, D.C., Microsoft attorneys argue that the suit should be settled in its favor without even going to trial because prosecutors from the Justice Department and 20 states cannot meet the required elements of their case.

The document, which responds to a government brief filed last week, goes on to characterize new evidence introduced in the case as "irrelevant" and a sign that prosecutors have lost faith in the original case they brought in mid-May.

Prosecutors "attempt to distract the Court from the fatal defects in their claims by slinging as much mud as they can at the defendant and by giving prominence to numerous irrelevant facts in a desperate attempt to cloud the issues," Microsoft's brief claims. "Plaintiffs apparently hope that a combination of overblown rhetoric and the sheer volume of paper they have submitted" will distract the court.

According to Microsoft, three undisputed facts "fatally undermine" the government's case:

  • that Web browsing code cannot be stripped from Windows 98 "without seriously degrading the operating system."

  • that combining browsing features in Windows 98 clearly benefits computer users and software developers.

  • that Microsoft has not closed distribution channels to Netscape Communications or any other competitor.

    "These three basic facts enable the court to dispose of the case" without going to trial, Microsoft argued. "Plaintiffs may wish that they had brought a different lawsuit against Microsoft, but all that is at issue here are the claims alleged in their complaints."

    "The central facts of the case and the overwhelming body of law support Microsoft's position," said William Neukom, Microsoft's senior vice president for law and corporate affairs, in a statement. "Based on the facts and the recent appeals court decision, we believe the case should be dismissed now, without a long and costly trial."

    The company also released a letter that it contends "confirmed Microsoft's central point in the case, that Internet Explorer is part of Windows 98 and cannot be removed from the operating system without seriously degrading it."

    In a March 6 letter to Assistant Attorney General Joel Klein, one of Netscape's counsel, Hogan & Hartson, told the Justice Department: "We are totally unable to provide examples of files that can or cannot be deleted from Windows 98 since, as we discussed this week, it is our understanding that it simply is not possible to delete any portion of Internet Explorer, or of browsing functionality, from Windows 98 as presently configured without severely interfering with the operating system."

    "Microsoft's reply is nothing new," the Justice Department said in a statement. "We look forward to proving that Microsoft engaged in a series of anticompetitive acts."