Microsoft on Trial: MS gets technical...

Microsoft Corp. will rely heavily on its technical expertise in an attempt to fend off the government's accusations that it has bullied its way to market monopoly.
Written by Michael Moeller, Contributor

Focusing on technical issues is a key part of Microsoft's defence, which kicks off this week at the antitrust trial in Washington, said sources close to the company's defence team. Many experts believe that tactic won't be enough to offset the damage the Department of Justice (DoJ) has done during the first 10 weeks of the trial. In fact, some observers say, the strategy could backfire.

Microsoft's previous technical posturing has done little to score points with U.S. District Judge Thomas Penfield Jackson. The judge has shown little patience with Microsoft's attempt to belabour technical fine points, often chastising Microsoft's lawyers for trying to trip up government witnesses on complex technical issues.

Microsoft's use of technical jargon also failed to sway Jackson when the company tried to defend itself against charges that it had violated the 1995 consent decree by bundling Internet Explorer with Windows 95. Jackson ruled against the software maker, a ruling later overturned in appellate court.

The tactic may lay some groundwork for an appeal if Microsoft loses the case and may answer a portion of the charges -- namely, justifying why it integrated Internet Explorer into Windows 98. "Trying to explain technologically why they integrated browsing into the operating system is just part of what Microsoft has to do with its defence," said Stewart Gerson, a partner with Epstein, Becker and Green, based in Washington. "But it does not address the government's claims of leveraging. [Microsoft] has to deal with those charges head on."

While the DoJ has kept its plans for attacking Microsoft witnesses close to the vest, officials have said they will be directly confronting some Microsoft executives about competitive strategies outlined in e-mail messages.

If Microsoft's first witness -- Richard Schmalensee, acting dean of the Massachusetts Institute of Technology's Sloan School of Management -- fails to offset the testimony of the government's star economist, MIT's Franklin Fisher, any type of defence will likely not be enough, said Joe Sims, a partner at the Jones Day law firm, based in Washington.

"The economists in the trial are key," Sims said. "You have to show that Microsoft is a monopolist to get a [Sherman Act] Section 2 case to stick." Schmalensee is scheduled to take the stand following a closed session where Microsoft's OEM pricing database information will be entered into evidence and argued before the judge.

More than a dozen news organisations have filed a motion to have the OEM pricing information released to the public.

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