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Microsoft wants case dismissed

The software giant plans to file a motion aimed at dismissing all or key parts of the antitrust lawsuit filed against it by the DOJ and 20 states.

Microsoft on Monday is expected to file a motion aimed at dismissing all or key parts of the antitrust lawsuit filed against the software giant by the Justice Department and 20 states.

The plan to file a motion for summary judgment was discussed by Microsoft lawyers at a hearing today before District Judge Thomas Penfield Jackson. Legal analysts said this action was expected, and some expressed doubt that the company would prevail.

"We plan to file for a summary judgment asking a court to dismiss this antitrust lawsuit, which we believe is groundless," a Microsoft spokesman said, confirming an earlier report by CNET "The facts established in discovery show that the government's claims are without merit. We don't need a long, expensive, time-consuming trial to do that."

CNET Radio talks to antitrust attorney Rich Gray
Jackson appeared skeptical about the motion. "I'm going to be finding facts here," the judge said. He added that a dismissal request "will not withhold your responsibility of commencing trial on September 8."

A party files a motion for summary judgment when it believes the facts of a case are undisputed. It asks the judge to decide the matter and issue an opinion without a trial. The motion will rely heavily on a June 23 federal appeals court decision, which held that Microsoft's integration of new features in its Windows operating system did not violate antitrust laws so long as the combination benefited consumers.

"The recent Court of Appeals decision reaffirmed the important legal doctrine that building better products for customers promotes competition and is therefore strongly encouraged by the law," said William Neukom, senior vice president for law and corporate affairs at Microsoft, in a statement.

In its summary judgment motion, the company said it will show that "customers benefit from Internet-related improvements to operating systems such as Windows...Microsoft will also show that Netscape has had no difficulty distributing its Web-browsing software to customers in vast quantities."

It cited "undisputed facts" established in the case, including evidence offered by Netscape.

But some legal experts said Microsoft's chances of succeeding were slim. "You can only win a motion for summary judgment when there's no important facts in dispute," said Rich Grey, an antitrust attorney at Bergeson, Eliopoulos, Grady, & Gray. "I think there are more than sufficient facts in dispute to require that Judge Jackson hear the evidence as a trial judge."

By Monday, Microsoft also must file a lengthy document opposing prosecutors' request for a preliminary injunction. Both filings are expected to detail Microsoft's defense in the high-profile antitrust case.

The software giant already outlined its defense last month. For example, it said that:

• It planned to integrate its Internet Explorer technologies "long before" Netscape Communications even existed, refuting the government's claim. In a conference call, Microsoft said that it has been working since as far back as late 1993 on its browser integration.

• The company denied that it tried to "illegally divide" the browser market with Netscape in spring 1995. "Representatives of Microsoft met with representatives of Netscape in Redmond, Washington, on June 2, 1995, and again in Mountain View, California, on June 21, 1995, to explore ways in which the two companies could work together...Microsoft has never attempted to divide the market for Internet browser software."

• It denied government allegations that the company had entered into exclusionary contracts with Internet service providers or Internet content providers.

Some details in Monday's filing already are leaking out. For example, Microsoft is expected to reveal that it held a day-long retreat on April 6, 1994--two days after Netscape was founded--during which chief executive Bill Gates discussed plans to provide Windows with Internet access included. This detail was first reported today by the New York Times.

Many other details are expected to be discussed in Monday's filing as well.

Reuters contributed to this report.