Microsoft, DOJ may be far from finished

Closing arguments presented last week in the government's antitrust case against Microsoft may become just a footnote in a saga that could extend well into the next century.

While a trial ruling is now in the hands of Judge Thomas Penfield Jackson, the case appears headed for another courtroom.

Experts are confident that the proceeding will land in the District of Columbia Court of Appeals and quite possibly the Supreme Court. The appeals process alone would likely last at least a year after Jackson's ruling is final.

This week in Washington, DC, Microsoft's attorneys denied all the antitrust allegations against the company, while the government reiterated claims that the company is a monopoly.

The Justice Department and 19 state attorneys general sued Microsoft in federal court, alleging that the software giant has engaged in illegal business practices, including anticompetitive behavior in the internet browser market.

"Both sides did a strong job wrapping up their cases," says Hillard Sterling, senior litigator for Gordon & Glickson in Chicago. "But I'd be surprised if Judge Jackson finds in Microsoft's favour." Sterling says Jackson's silence during closing arguments showed he has already made up his mind.

Joseph Angland, an antitrust attorney with Dewey and Ballantine in New York, also thinks the government will prevail and that the case will go to the appeals court barring a last-minute settlement.

"At best, Microsoft proved that several years from now it might not have a monopoly power in the operating-system market, but that is no defence," Angland says.

Sterling says Microsoft has a strong case for an appeal based on a point of law called tying, a centrepiece of the government's case. The government contends Microsoft tied its Internet Explorer browser to its operating system to leverage its strength in order to bury rival Netscape.

But in a ruling in a separate case, which grew out of the suit against Microsoft, the District of Columbia Court of Appeals said it was difficult for a plaintiff to prove unlawful tying of products in the technology market, according to Sterling.

"All Microsoft needs to do is prove plausible benefits from product integration," says Sterling, who thinks Microsoft will prevail on appeal.

Jackson's ruling is expected in four to six weeks, at which time both sides will submit written recommendations for a final ruling.

Jackson is expected to ask both sides to argue those recommendations before him. The final ruling is not expected until early next year.

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