Next up vs. Microsoft: $1.6b Caldera suit

In its next major antitrust battle - a private suit due to begin trial in February - Microsoft doesn't want the jury to hear about the damaging findings in the US Department of Justice's case.

Microsoft recently made a motion to prevent Caldera from introducing Judge Thomas Penfield Jackson's findings of fact, in which he blasted Microsoft for being a predatory monopolist.

Caldera sued Microsoft in 1996, charging that it illegally tied Windows 95 to the MS-DOS operating system and created artificial incompatibilities between Windows and Caldera's version of DOS, known as DR-DOS.

Microsoft has denied the charges and has sought several times - unsuccessfully - to get major parts of the case dismissed.

Last week, the parties met with US District Court Judge Dee Benson in Salt Lake City to set the agenda for the first days of the trial. Benson delayed the opening day two weeks, from January 17 to February 1, while he oversees an unrelated case.

The first week is expected to be spent hearing various motions, including Microsoft's latest one to quash any mention of Jackson's findings.

Jackson's findings are little more than hearsay evidence, said Steve Aeschbacher, Microsoft's lead lawyer on the Caldera case. Using them to influence a jury is "sort of a recipe for unfairness," he said.

Yet Caldera hasn't said it wants to introduce the findings - nor can it, unless Jackson makes them part of a final ruling, said Steve Hill, Caldera's lead lawyer.

However, Caldera could use the findings as a road map, matching some of its claims against Jackson's opinions, said Rich Gray, an antitrust lawyer in San Jose.

One factor that's similar in the two antitrust cases is the matter of "tying," according to Hill, a lawyer at Snow, Christensen & Martineau in Salt Lake City.

The Justice Department has said bundling the Internet Explorer browser with Windows is an illegal tying of separate products. Caldera, meanwhile, accuses Microsoft of a similar illegal tie: that of MS-DOS to Windows 95.

"Every copy of Windows included a copy of MS-DOS, even though people were generally not aware of that," Hill said. "It was to force people to take one product when they bought the other."

Aeschbacher said he plans to show in court that Caldera's problems were the result of its own failed product strategy.

"They want to blame the fact that they didn't succeed on Microsoft, instead of on the fact that they chose a path that's really hard to execute on and they didn't do it very well," Aeschbacher said.

The Caldera case doesn't necessarily carry the same risks for Microsoft as the government's antitrust case, said Robert Hauberg, an antitrust attorney at Baker, Donelson, Bearman & Caldwell in Memphis and a former Justice Department lawyer.

Because the Caldera case is about events that occurred in the early 1990s, Microsoft isn't likely to face court-ordered actions that would affect current contracts or force it to repackage today's products, Hauberg said.

"The marketplace has moved," he said, adding that financial damages are the likely relief if Caldera wins.

In one relief proposal from Caldera, the company asked the court to force Microsoft to pay $1.6 billion.

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