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Microsoft's Request to Limit Span of Antitrust Trial Denied

By Leslie Helm
and Jube Shiver Jr.
Los Angeles Times

In a major setback for Microsoft, a federal judge on Thursday kept the door open for government trustbusters to pursue a broader case against the software giant for allegedly engaging in a wide range of monopolistic practices over the past decade.

District Court Judge Thomas Penfield Jackson denied Microsoft's request to limit the scope of the upcoming trial to a narrow set of issues laid out in the initial complaint filed by the U.S. Department of Justice and 20 state attorneys general in May. Instead Jackson said he would rule on a case-by-case basis as to what evidence could be introduced.

Experts said the decision gives the government important leeway to pursue fresh allegations it has raised in recent weeks as part of a new legal strategy in what is viewed as the most important antitrust case since the breakup of AT&T.

Microsoft is being charged not only with specific acts included in the government's original complaint, mostly related to its Internet software war with Netscape, but also with engaging in a "broad pattern of anticompetitive behavior" going back to 1991, including attempts to kill competing products being developed by industry giants such as Intel, Apple Computer and Sun Microsystems.

The government's case against Microsoft is considered hugely important because it could determine who, if anyone, controls the infrastructure of the information age.

If the government succeeds in proving the broader charges, experts say, the judge would be more likely to slap tough sanctions designed to halt that pattern of behavior than were likely under the narrower cases originally brought against Microsoft.

"If you look at the allegations as they currently stand, there are now a dozen or more different things the Justice Department has brought up," said Herb Hovenkamp, a University of Iowa law professor who briefly advised some of the states participating in the antitrust suit against Microsoft. "If Microsoft goes to trial and loses on any one or two of those things it could be devastating."

Hovenkamp said the judge could go so far as to break up Microsoft and the case would open the door for subsequent private antitrust suits seeking monetary damages.

For the government, the downside of a broader case is the potential for delays in the trial. That could mean a lengthy lawsuit that gives Microsoft more time in the market to establish its product line as the industry standard and render moot many of the issues raised by the government. Such lengthy trials are a risk to the government because they strain the Justice Department's limited resources and seldom receive broad public support.

The case has already been delayed, and Microsoft is expected to request further delays to defend itself against the additional charges. Microsoft is also expected to continue to fight government efforts to introduce new evidence.

"We've got a limited amount of time left, we've got a lot of work to do and it would be easier for everybody if we don't have to chase down what turns out to be ghosts," Microsoft attorney John Warden argued Thursday.

The Department of Justice's original complaint focused on three issues: that Microsoft signed exclusionary licensing agreements with Internet service and content providers designed to hurt Netscape's Navigator browser; that the company forced computer makers who license the Windows 95 operating system to also distribute its Internet Explorer Web browser; and that Microsoft illegally controlled the way personal computer makers present its Windows software on computer screens.

But in recent weeks, the government has added allegations that Microsoft pressured Intel Corp., Apple and RealNetworks to drop software development efforts that conflicted with Microsoft's own plans and that it set out to deliberately undercut Sun's fledgling Java software in an effort to protect its Windows monopoly.