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Calif. judge to consider throwing out Google suit

Date set for federal judge to weigh Microsoft's motion to dismiss Google's countersuit over Kai-Fu Lee.

The next round in the legal battle between Google and Microsoft over former Microsoft executive Kai-Fu Lee could take place Oct. 14--unless the companies settle their dispute first.

A federal court in San Jose, Calif., has scheduled a hearing on that date to consider Microsoft's motion to dismiss a lawsuit Google has filed against it. Google's suit seeks to invalidate a contract Lee signed while employed at Microsoft that bars him from performing certain work at the search giant, his new employer, for a year.

The hearing may not happen, if Google takes Microsoft up on its offer to settle that case and a competing one Microsoft filed against the search company in Washington. Microsoft offered to settle both cases on Tuesday, after the judge presiding over the Washington case issued an order that drastically limits the duties Lee can perform at Google until a trial begins in January. Google has yet to respond to the settlement offer.

Lee quit Microsoft in July to run Google's operations in China, and Microsoft promptly sued him and Google over the move, invoking its noncompete agreement with Lee. Google filed its countersuit a few days later in California, where the courts generally frown upon noncompete contracts.

The companies are expected to take up the question of jurisdiction at the Oct. 14 hearing. Google's suit "is a thinly veiled effort to usurp this case from the state of Washington, the forum in which Dr. Lee agreed this dispute should be heard," a Microsoft memorandum states. The memorandum, filed last week, goes on to quote the section of Lee's contract with Microsoft in which he agrees that the "exclusive venue and exclusive personal jurisdiction" for any disputes over the agreement lie in Washington's courts.

"Thus, any attempt by Plaintiffs to rely upon California law as a basis for maintaining this action in California is misplaced and fails as a matter of law and contract," the memorandum says.

Microsoft moved Google's countersuit, originally filed in state court, to a federal court last month. Judge Ronald Whyte of the U.S. District Court for the Northern District of California in San Jose is presiding over the case.

Google did not respond to requests for comment about the hearing. (Google representatives have instituted a policy of not talking with CNET reporters until July 2006 in response to privacy issues raised by a previous story.)