Microsoft suits could drag on

Once the initial hype over the lawsuits against Microsoft has subsided, the case will face a lengthy and tedious process that ultimately may take years to complete.

The first step is for the chief judge of the U.S. District Court in Washington, where both the Justice Department and 20 state attorneys general filed their actions, to assign a judge to the cases. The assignment is expected by the end of the week.

Although uncertain, legal experts say the cases are likely to wind up on the docket of U.S. District Judge Thomas Penfield Jackson, the 61-year-old jurist presiding in the previous case the DOJ brought against Microsoft last October.

"When cases are related, the chief judge has the discretion to assign a new case to the same judge handling a [similar] case," said Jeff LeVee, an antitrust attorney with Jones, Day, Reavis, & Pogue.

The next step will be to set the date for the trustbusters' request for a preliminary injunction. No one knows when that will occur. Federal and state prosecutors will push for a date that they think is soon enough to stop the harm allegedly being caused to consumers by Windows 98. Microsoft, meanwhile, is expected to delay the date for as long as possible, since it will be able to ship the operating system while the motion is pending.

As the case unfolds, both sides will debate whether Microsoft has a monopoly in the operating system market, and if so, whether the software giant attempted to maintain that monopoly or extend it into new markets. Under the Sherman Act, such "willful maintenance" of an existing monopoly and "willful extension" into new areas are illegal.

"The government is going to easily establish that Microsoft has monopoly power in operating systems, so the central issue will be whether it in any way used that monopoly power improperly in the browser marketplace," predicted Rich Gray, an antitrust attorney at Bergeson, Eliopoulos, Grady, & Gray.

The evidence used to support its case would be Microsoft's "supposed offer [to Netscape Communications] to split up the browser market and the internal memos that talk about leveraging market power in Windows to assist them in establishing Internet Explorer," Gray added.

Microsoft has denied any legal wrongdoing.

The case could drag on for years, just like other major antitrust cases. Actions against IBM one lasted from 1969 to 1982, while the AT&T case lasted from 1974 to 1982. The regulators' suit against Big Blue was dismissed; the AT&T case resulted in the breakup of the telephone monopoly.

Both Microsoft and regulators seemed open to the possibility of an out-of-court settlement, but that it isn't expected to be a factor any time soon. Both sides said their arguments are far apart.

Meanwhile, U.S. assistant attorney general Joel Klein said that the lawsuit against Microsoft could be expanded. Sen. Orrin Hatch (R-Utah) mentioned that possibility as well. In separate statements, both referred to an "ongoing, broader investigation" of the company.