Judge Gives Mixed Ruling in Sun-Microsoft Case

Microsoft won some, lost some Friday in its efforts to get a federal judge to dismiss several antitrust suits.

BALTIMORE—A federal judge struck Microsoft Corp. down on two of its requests to dismiss antitrust cases against the software giant and offered a mixed ruling in a third request Friday.

U.S. District Judge J. Frederick Motz denied Microsofts requests to dismiss antitrust cases filed by Be Inc. and Burst.com, saying he believed the claims warrant further discovery and are sufficient to go forward.

In a hearing on Microsofts dismissal motion, Motz "summarily" denied the motion to dismiss the Be Inc. case, and, though adding he did so with greater pause, also denied the request to dismiss the Burst.com case.

Microsoft also had asked Motz to dismiss the case brought by Sun Microsystems Inc. However, Motz granted Microsofts dismissal motion on only two counts—monopolization of the OC operating system market and of the Web browser market—restricted Suns claims on one other count and simply gave the Unix vendor a chance to amend its claim on another count.

The judge said he would "reserve ruling on the tying claims," of which there were seven. "There are serious issues that arise on the tying claims," he said. These claims involve Microsofts bundling of its Web browser with its Windows operating system.

However, Judge Motz said he would not take a long time ruling on these claims. "Id like to get this moving," he said of the case, so that Microsoft could appeal his earlier ruling to impose a preliminary injunction against the software giant that would force it to ship a Sun-compatible Java runtime environment with Windows.

Matthew Larrabee, an attorney for Microsoft, argued that Sun had cited no case "that has held unlawful a technological tie." Besides, he said "consumers want Microsoft technology."

Yet, Lloyd "Rusty" Day, an attorney for Sun, argued that consumers want Microsoft technology partly because they are forced to take it.

"Imagine if General Motors sold 95 percent of all cars and then got into the gas business and held 30 percent of the gas business," Day said. "Imagine if they then made it so that GM cars could only run on GM gas…"

Playing the role of both adjudicator and devils advocate, Motz asked: "What if it increased functionality?" The U.S. Court of Appeals ruled in prior Microsoft proceedings that the company had the right to integrate its products as long as the integration was of benefit to consumers.

Day said that could be tested at trial.

Larrabee later took the judges nod and said: "If buying GM gas gives you better mileage, its not an unlawful tie."