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Judge: Novell-Microsoft trial in Utah to continue

Published November 18, 2011 6:35 pm

Antitrust case • Bill Gates scheduled to testify but ruling could halt trial.
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The high-stakes antitrust trial in which Novell Inc. is seeking about $1 billion from Microsoft Corp. will resume Monday in Salt Lake City, a judge said Friday.

U.S. District Judge J. Frederick Motz said the jury will be called back Monday morning to hear Microsoft begin its defense against Novell's claim that Microsoft Chairman Bill Gates engaged in anticompetitive conduct in a decision he made about Windows 95.

Novell claims that Gates' 1994 decision to withdraw support for several features planned for the Windows 95 computer operating system was aimed at stalling Novell's planned PerfectOffice suite of software applications that featured the popular word processor WordPerfect.



Motz took under advisement arguments made Friday without the jury present on Microsoft's motion to end the case at the halfway point after Novell finished presenting its witnesses and evidence.

The five-hour hearing will be continued on Monday after Microsoft opens its defense, the judge said.

Gates is scheduled to testify Monday morning in the trial.

Tensions in the courtroom boiled over at the end of the Friday hearing when Jeffrey Johnson, the Washington, D.C., attorney who represents Provo-based Novell, asked who Microsoft's first witnesses would be.

That prompted New York attorney David Tulchin, Microsoft's lead trial attorney, to angrily tell Johnson he would not disclose that information because Novell attorneys had refused to do the same for Microsoft in the first half of the trial.

Because of prior rulings in the 7-year-old lawsuit, Novell is arguing that Gates' decision affecting WordPerfect and other software applications was aimed at protecting Microsoft's monopoly on computer operating systems. Motz and Johnson went round-and-round on that point as the Novell attorney tried to convince the judge to let the case go forward.

Motz returned time and again to his point that Novell executives and managers had testified that the technological prowess of Windows 95 increased Microsoft's 90 percent-plus market share for computer operating systems. That might have been the reason competing operating systems didn't prosper, not Microsoft's misconduct, the judge said.

"Your theory makes sense," Motz told Johnson, but added "there is no evidence" to support it.

Johnson insisted there was ample evidence that WordPerfect and other applications could be used with other operating systems such as Linux that eventually did gain a share of the market. But under antitrust law, Novell doesn't have the obligation to prove there would have been a market had Microsoft not engaged in alleged anticompetitive behavior, he said, using a sports metaphor.

"It's about getting the players on the field," Johnson said. "It's not about them winning the game or not."

Novell's theory that hurting Novell's applications would help Microsoft's operating system monopoly was "bizarre," said Tulchin. Gates, who was CEO of Microsoft in the mid-'90s, did not know what Novell's plans were for the parts of Windows 95 he decided not to support, the attorney said.

"There's no conspiracy here to hurt Novell," Tulchin said.

tharvey@sltrib.comtwitter: @TomHarveysltrib

 

 

 

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