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Judge loses patience with Microsoft, again

Judge Jackson's comments suggest he is not responding well to Microsoft's attempts to argue that it does not hold monopoly power in the operating system market.

WASHINGTON--A federal judge today repeatedly lost patience with a Microsoft attorney, chiding him for improper and drawn out questioning during a fifth and final day of testimony from an economist hired by the government.

In his sharpest rebuke of the software giant yet, U.S. District Judge Thomas Penfield Jackson told Michael Lacovara Microsoft's day in court to wrap up his examination of Frederick Warren-Boulton. Lacovara, a partner with Microsoft's outside legal firm Sullivan & Cromwell, had shown no signs of finishing his interrogation even by late afternoon.

"This examination has got to be brought to an end," a clearly frustrated Jackson told Lacovara. "You will conclude this by 5 p.m. this evening."

Jackson got his wish, freeing the way for tomorrow's expected appearance of James Gosling, a Sun Microsystems vice president and the inventor of Java, who claimed in written testimony that Microsoft has tried to block cross-platform versions of the language from gaining acceptance. (See related story)

But Jackson's admonishment was not the first time today the judge had grown testy with Lacovara. A few minutes earlier, Jackson had chided the lawyer for posing questions in a second round of cross-examination about whether Netscape Communications co-founder Marc Andreessen had joked that Netscape would "reduce windows to a set of poorly debugged device drivers."

"What difference does it make, Mr. Lacovara?" Jackson said. Only a question or two later, Jackson stopped Lacovara again for asking questions that did not follow proper courtroom procedure. "It seems to me like you are simply getting a second-wind on your first cross-examination," Jackson said. Lacovara answered that the question was in fact in-bounds because it sought clarification to a point raised by the government earlier.

"If it was covered this morning I assure you it was over my head," Jackson answered.

Today's episode is the latest warning Jackson has given Microsoft in the ongoing antitrust trial taking place in federal court here. The judge has also grown impatient with Microsoft's legal team, chiding lawyers for "mischaracterizing" a witness' testimony and for trying to embarrass another witness.

His comments today suggest that he is not responding well to Microsoft's attempts to argue that it does not hold monopoly power in the operating system market.

Earlier today, in redirect examination under Richard Schwartz, an attorney with the New York Attorney General's office, Warren-Boulton repeated claims made in written testimony that Microsoft has "monopoly power" in the operating system market because it is able to raise prices and exclude would-be competitors.

To back his claim that the software giant raises prices, Warren-Boulton pointed to the percentage of cost of Microsoft's operating system compared to the overall expense of a personal computer. Whereas Microsoft's operating system comprised just 0.5 percent of the cost of a PC in 1991, it jumped to 2 percent by 1996, said Warren-Boulton, the head of the Justice Department's (DOJ's) antitrust division under the Reagan administration.

The economist added that the figure could rise to as high as 10 percent, according to projections made last December by Microsoft executive Joachim Kempin.

The documents show a "really dramatic increase in the cost of the operating system relative to the other components," Warren-Boulton told the court. The testimony is crucial to the antitrust case brought in May by the Justice Department and 20 states. Without a finding that Microsoft holds monopoly power, the government's charges of anticompetitive acts are essentially moot.

But Microsoft disputed Warren-Boulton's account, and claimed that the government was misleading the court and the public. "The government is lying with statistics through this document," Microsoft spokesman Mark Murray said outside court during a lunch time recess. "Microsoft's operating systems are still a very, very small percentage of the cost of a personal computer."

Warren-Boulton also claimed that Microsoft's decision to give away its browser has harmed innovation because it chased Netscape out of the market and perhaps prevented countless others from entering it. By making it difficult for applications to be written on rival platforms, he added, Microsoft has clearly contributed "barriers to entry" that would-be operating system competitors face.

The conduct "is designed to block a world in which you let 1,000 flowers bloom in the operating system market," Warren-Boulton said, clearly more at ease now that he was being examined by a government attorney. "Nobody can tell you what it will look like, but we'd all like to find out."

Schwartz also introduced sworn testimony from a top Microsoft executive, who said the software giant worried Netscape was a "complete competitor" because its browser might "replace the operating system" if it gained wide acceptance.

"As far as I'm concerned, they were a complete competitor to the operating system," Microsoft senior vice president Jim Allchin said in deposition transcripts made public today.

Although Netscape's Navigator was only a program running on top of Windows and other platforms, Allchin worried it might quickly "replace the operating system" if software developers began writing applications using the borrower's programming interfaces.

"When it started out it was just an application," Allchin said in the deposition, which was taken in March of this year. "In a blink of an eye, it became a platform."

Schwartz used the deposition to reinforce Warren-Boulton's earlier testimony that Microsoft tried to protect its alleged Windows monopoly by killing Netscape, not only because it offered an alternative set of application programming interfaces but also because it could serve as a vehicle for distributing Sun's Java technology.

"Microsoft clearly regarded Netscape as a direct threat to its operating system," Warren-Boulton told the court.