Novell attorney testifies against Microsoft

Posted: Thursday, March 28, 2002

WASHINGTON -- As efforts to settle the Microsoft antitrust case dragged on in 2000, a Utah state lawyer asked software maker Novell for help in drafting a new definition that would benefit Novell, according to an e-mail released by Microsoft lawyers.

Novell, a Utah-based company, was asked which of its products would be helped by a proposed definition by the states. The e-mail was sent to Novell in April 2000, when U.S. District Judge Thomas Penfield Jackson, who then controlled the antitrust case, ordered Microsoft and the government to negotiate a deal.

''I can say that products that fit in the classification ... would receive protection from certain practices of a certain operating system company,'' referring to Microsoft, Utah lawyer Wayne Klein wrote.

Utah is one of nine states that shunned a settlement last year and is fighting for strong antitrust penalties against Microsoft.

The nine states want U.S. District Judge Colleen Kollar-Kotelly to force Microsoft to create a stripped-down version of its flagship Windows software that could incorporate competitors' features. The states also want Microsoft to divulge the blueprints for its Internet Explorer browser.

The federal government and nine other states settled their antitrust case against Microsoft last year for lesser penalties.

The original judge in the case, Jackson, ordered Microsoft broken into two companies after concluding that it illegally stifled its competitors. An appeals court reversed the breakup order and appointed Kollar-Kotelly to determine a new punishment.

Microsoft lawyer Michael Lacovara offered the e-mail while cross-examining Novell's Carl Ledbetter, the company's chief technology officer.

Ledbetter said the penalties should extend to network operating systems such as Novell's NetWare product, which is used to help multiple computers communicate.

Microsoft argues that the network software is a late addition to the case, and was inserted to benefit Microsoft's competitors.

Kollar-Kotelly decided Tuesday to let the states offer evidence to show that the penalties should extend to emerging markets like smart cell phones and handheld computers.

The decision was a victory for the states, which have argued that the technology industry has evolved since the original antitrust case in 1998 and that any penalties should reflect that change. Microsoft maintains that the case concerns the Microsoft operating system and not new markets.

Kollar-Kotelly said Tuesday that she needs to know more about the technology.

''I don't believe I can make that determination in the abstract,'' she said.

Several witnesses, including Ledbetter and executives from Palm, SBC Communications and Liberate Technologies, plan to testify that Microsoft's actions extend to new markets as well.

States that rejected the government's settlement with Microsoft and have continued to pursue the antitrust case are Iowa, Utah, Massachusetts, Connecticut, California, Kansas, Florida, Minnesota and West Virginia, along with the District of Columbia.

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