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Microsoft-Bristol trial taking shape

Bristol Technology and the software giant, locked in a fight over Windows NT, are expected to send their top officers to testify at a trial slated for late spring.

Bristol Technology and Microsoft, locked in an antitrust lawsuit over the source code for Windows NT, are expected to send their top officers to testify at a trial slated for late spring.

Potential witnesses include Microsoft executives Jim Allchin and Paul Maritz, as well as Bristol co-founders Keith, Ken, and Jean Blackwell, according to the documents filed in federal court in Bridgeport, Connecticut.

The executives, along with a host of experts, will testify in a case brought last August by Bristol, a Danbury, Connecticut, maker of cross-platform software tools. The suit alleges that Microsoft induced the smaller company to license source code used to translate, or "port," certain Windows software so it could run on Unix platforms.

After Bristol had "bet its future" on the relationship, Microsoft radically changed the licensing terms for Windows NT source code, Bristol claims, in violation of antitrust laws.

Microsoft, however, characterizes the matter as a simple contract dispute, arguing that Bristol is trying to gain through the courts what it could not accomplish in negotiations. Microsoft also argues that Bristol lacks standing to bring an antitrust suit because the two companies are not competitors.

According to a recent Microsoft filing, the company will not call its star economist as a witness at the trial, scheduled for June 1. Richard Schmalensee, dean of the Sloan School of Management at the Massachusetts Institute of Technology, testified for Microsoft in an earlier hearing in the Bristol case.

Schmalensee also testified as Microsoft's lead witness recently in the antitrust trial brought by the Justice Department (DOJ) and 19 states. On at least two occasions, lead prosecutor David Boies pointed out inconsistencies between Schmalensee's testimony in the government trial and earlier statements, including claims the economist made at an October preliminary injunction hearing in the Bristol case. When Boies confronted Schmalensee with one of the seemingly conflicting statements, the economist replied: "What could I have been thinking?"

Microsoft spokesman Jim Cullinan said Schmalensee's absence from the Bristol trial is unrelated to his testimony in the government antitrust proceedings. Schmalensee is likely to be called as a rebuttal witness when the government trial, now in a six-week recess, reconvenes, Cullinan noted, adding that the economist had been scheduled to testify in a separate antitrust trial brought by Caldera . That trial had been scheduled for June but was recently was postponed until January of next year.

This time around, Microsoft's chief economists in the Bristol case will be Kenneth Elzinga and Richard Rapp. Both are expected to testify about competition between the Windows NT and Unix operating systems, as well as about the nature of the software industry.

Other Microsoft employees scheduled to testify are Peter Conway, Viktor Grabber, John Ludwig, Danial Neault, Takeshi Numoto, and Ramesh Parameswaran.

Meanwhile, Bristol's potential list of experts includes Professors Richard Langlois of the University of Connecticut, Lee Hollaar of the University of Utah, and William Barnett of Stanford University. Henry Stotsenberg, a private certified public accountant, is also on the list. In addition to Bristol's three co-founders, Chane Cullens, the company's president, and Mark Hrinya, its vice president of finance, are also expected to testify.