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Microsoft ponders course of action

Microsoft attorneys debate their next step following a court ruling handing a major win to Sun Microsystems in the battle over use of the Java-compatible logo.

Should Microsoft hold or fold?

That's the question Microsoft attorneys are likely asking following yesterday's court ruling handing a major win to Sun Microsystems in its legal battle with the software giant over use of its Java-compatible logo.

As reported yesterday, a federal judge in San Jose, California, ordered Microsoft to remove the logo from its products until they pass the compatibility tests that Sun imposes on licensees of the programming language. While by definition U.S. District Judge Ronald Whyte's preliminary ruling is not cast in stone, two outside attorneys said Microsoft will have a hard time changing the judge's mind.

"If I were betting at this point, I'd bet that Microsoft's lawyers See special coverage: 
Sun wins Java round have a tough row to hoe to turn [Whyte] around on these crucial issues," said Gray Cary Ware & Freidenrich trademark litigator Jeffrey Shohet. "The judge has sort of indicated a leaning in favor of Sun on the key issues of compliance with these tests that Microsoft appears to be unwilling to comply with."

The case, which Sun filed last October, hinges on a number of complex issues involving contract law and computer programming. Sun contended that it is entitled to take back its logo because Microsoft is in breach of licensing terms that require its version of Java to be compatible with Sun's version. Microsoft, meanwhile, has accused Sun of imposing a more stringent set of compatibility tests than is required by the licensing contract, and argued that, in any event, its Java license specifically bars Sun from seeking the very injunction it requested.

Despite the many wrinkles in the case, Whyte, who has heard more than his share of high-technology cases, came out squarely in Sun's favor.

"It would be anomalous to construe the [technology license and distribution agreement] to preclude Sun from seeking injunctive relief against Microsoft's willful use of the 'Java compatible' trademark on products that are unlicensed and recognized by Microsoft not to be compatible with Sun's Java technology," Whyte wrote at one point in the case.

Whyte also noted that Sun may have the upper hand on the dispute over which set of compatibility tests was governed by the contract, ruling that, "Microsoft's reading of the [contract] would essentially allow Microsoft to destroy the cross-platform compatibility of the Java programming environment."

Under federal court rules, Microsoft may immediately file a motion with Whyte to stay his order or appeal the decision with a higher court. But either option is a long shot. Given the unequivocal nature of the 19-page ruling, the judge appears unlikely to reverse himself, and in order to prevail on an appeal of the decision, Microsoft attorneys would have to convince a three-judge panel that Whyte abused his discretion.

Claude Stern, a software litigator at Fenwick & West, said either reversal is unlikely. "That's always an uphill battle," said Stern. "The smart money is always on the district judge."

Microsoft spokesman Jim Cullinan said the company has not yet decided whether it will appeal or request a stay. At any rate, the company appears undaunted by the ruling and determined to press on in its with its legal battle against Sun.

"This is really just a minor skirmish in the bigger war about who is complying with this contract and who is not," Microsoft associate general counsel Tom Burt told CNET's NEWS.COM yesterday. "Once all the facts are heard, we will prevail."