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Suit against Microsoft over pen computing rejected

Appeals court says pen-computing pioneer Go Computer waited too long to file its own antitrust lawsuit contending it was squeezed out of business.

A federal appeals court has rejected Go Computer's antitrust suit against Microsoft, which alleged that Go was unfairly forced out of business more than a decade ago by the much larger company.

The 4th Circuit Court of Appeals on Monday upheld a ruling last year from a trial judge who dismissed the lawsuit brought by the now-defunct pioneering pen computing company.

This is one of the last remaining private antitrust lawsuits against Microsoft outstanding; almost all of the rest have been settled or otherwise resolved.

The lawsuit claims Microsoft took aggressively anti-competitive measures against Go nearly 20 years ago, including pressuring Intel to keep its distance from the new company, coercing other developers not to write software for Go, stealing trade secrets, and creating a competitor to Go's PenPoint called "PenWindows."

Go eventually went out of business in 1994. But after Microsoft was found liable for antitrust violations in the Justice Department's lawsuit, Go founder Jerry Kaplan filed suit on his own, alleging that Microsoft had hidden its wrongdoing until 2002 so it was still possible to sue even after so much time had elapsed. He filed the suit in June 2005.

Microsoft won before the district court, and Go appealed, mostly on technical grounds having to do with the statute of limitations and the way the case was dismissed.

The appeals court disagreed. It said: "By 1991 and 1992, Mr. Kaplan knew with some specificity about the array of obstacles Microsoft was allegedly putting in Go's way. Twice he met with the FTC as part of its Microsoft investigation."

Also: "To allow this litigation to proceed would simply eviscerate Congress' intent. There is a place for finality in the law. Defendants are prejudiced when 'memories fade, documents are lost, witnesses become unavailable.' And defendants are entitled to 'the security of knowing when legal action against (them) has been foreclosed.'"

Translation: Go could have, and should have, filed the lawsuit over a decade earlier.