On day two of the trial, Microsoft attorney David Tulchin pointed out that Bristol tried to maintain strict control of its code and planned to "attack and dominate" markets, the same actions it was accusing Microsoft of taking.
Bristol sued Microsoft in August, arguing that it illegally withheld source code and used its dominant position with Windows to move into other markets. Prior to filing suit, Bristol had a three-year contract to license Windows NT version 3. But Bristol claimed that when it came time to renew the contract and include versions 4 and 5, Microsoft illegally raised prices.
As part of its antitrust suit, Bristol will argue that Microsoft is a monopolist and therefore must play by different rules than most companies. Although it is not illegal to hold a monopoly, under US antitrust law, such market power cannot be leveraged to move into other markets.
Microsoft's defense strategy Friday appeared similar to tactics it's used at times during the Department Of Justice antitrust trial in Washington. During that trial, Microsoft has tried to defend itself by pointing out that its competitors have engaged in the same behavior as Microsoft, including striking exclusive deals with partners.
During day two of the Bristol trial, Tulchin showed a listing of Bristol's core values from the company's Web site. He pointed out a sentence in the list saying Bristol planned to "attack and dominate all markets" in which it competed, implying the company was engaging in the same behavior it accused Microsoft of using.
But Ken Blackwell, Bristol chief technology officer and the company's first witness, downplayed the assertion. "Maybe it's the mouse that roared, but we liked to set our sights high," he quipped.
Tulchin also scoured parts of the original contract between the two companies, showing that Microsoft never promised Bristol any code beyond that contained in Windows NT 3. Microsoft probably will bring up the contract's strict wording again and again to support its case, though Bristol will claim that the company promised continued support for Bristol's products in public on several occasions. Bristol plans to show e-mails and videotapes in an attempt to support its cause.
On Friday, Microsoft also referred to Bristol competitor Mainsoft, a strategy Microsoft probably will use throughout the trial. Mainsoft signed a contract similar to the one Bristol turned down.
During one exchange Friday morning, Tulchin asked Blackwell if he would accept the original list of NT technologies Bristol had requested in November of 1997 -- two months after the companies' contract had run out -- if Microsoft offered it today.
Blackwell said he wouldn't because he now wanted more code. He had since found out about new technologies included in Windows NT 4 and 5, and he said not including it would leave his customers "high and dry," not knowing whether their software would run smoothly using Bristol's Wind/U tool, which helps developers port applications from Windows to Unix.
Tulchin pointed out that Mainsoft had accepted terms similar to those requested in Bristol's November letter, an assertion that made Blackwell visibly upset.
"Just because they capitulated to this doesn't mean I'm going to," Blackwell snapped, adding that he didn't care about Mainsoft's "silly decisions." Blackwell apologized for the outburst, but the judge still chastised him.
Bristol is expected to present tapes of Bill Gates' deposition on Monday.