In preliminary rulings on three of at least 10 issues in the trial, Judge Ronald Whyte took Microsoft's side twice. He tentatively indicated that Microsoft could create an independent or "clean-room" version of Java--a knock-off version of the software technology written without Sun code--and release it without having to endure Sun's compatibility tests.
On a related issue, however, Judge Whyte's preliminary ruling supported Sun's position that several of Microsoft's Java-enabled products, including Windows 98 and the Internet Explorer 4.0 Web browser, infringe Sun's copyrights and that these products, as a result, violate the Java license because they haven't passed compatibility tests.
Combined, the rulings indicate that Whyte believes Microsoft can market clean-room versions of Java without Sun's input, but that the company's current products don't qualify for clean-room status. In other words, Sun's intellectual property is embodied somewhere in the products.
Rich Gray, an attorney at Bergeson, Eliopoulos, Grady & Gray who has followed the case, said the preliminary rulings are a strong indication of how the judge will rule, although he could still be persuaded by arguments next month.
Gray calculates that the split decision in the three rulings will help Microsoft in other pending legal actions, especially the Justice Department's antitrust suit now in recess in Washington, D.C.
"The two that Microsoft tentatively won will help soften the blow of the one it tentatively lost," Gray said. "Microsoft will be able to point to the preliminary ruling in its favor to say that its rights in the Java are not cut and dried."
The suit revolves around the parameters of Microsoft's license to Sun's Java technologies and when--and under what circumstances--the Java logo can be advertised on a product from a third party. Judge Whyte has signaled that he views it as a licensing dispute, but the trial has taken on importance in Microsoft's separate federal antitrust case.
"This is some potential that the final judgement on copyright infringements could have potential to spill over into the [antitrust] lawsuit," Gray added. "That battle is the same one that Microsoft lost in the November preliminary injunction." In November, Judge Whyte ruled that Microsoft's software that used Java had to pass Sun's compatibility tests.
None of Whyte's preliminary rulings have the force of law. Instead, they are an indication of his current view of the issues and are designed to focus oral arguments, now set for June 24. He also appended specific questions for each ruling, asking attorneys to address points he views as critical.
Gray sees a warning to Sun in some of the judge's questions. He believes the judge is saying that Microsoft must comply with Sun's compatibility tests if it uses Sun's Java technology, but the compatibility tests are irrelevant if Microsoft creates its "clean-room" version of Java.
Both Sun and Microsoft acknowledged the split decision in the preliminary rulings but were cautious, because of the tentative nature of the decisions, in their comments.
"We have a judge who is very thorough and wants to be sure he looks at all the issues relating to these legal questions before he does anything permanent," said Sun spokeswoman Lisa Poulson. "A tentative ruling is a great way to get the parties focused."
"The rulings are tentative and it's premature to characterize the court ruling at this time," said Microsoft spokesman Jim Cullinan. "The judge has asked for additional information."
The third tentative ruling addressed new versions of the Java technology that Sun issues from time to time. At issue is how quickly Microsoft is required to incorporate Sun's changes in Java into Microsoft's versions.
Microsoft portrayed the issue as whether Sun must deliver new "Java classes" that are "backwardly compatible" with earlier versions, and it regards the ruling as central to the dispute. Sun, however, regards the issue as of secondary importance and technical. Judge Whyte's tentative ruling leans toward Microsoft's argument.