MS/DOJ: As trial ends, Judge hints at thinking

With testimony concluded in the Microsoft antitrust case, attention is now riveted on two issues: the possibility of a settlement and speculation over a verdict by Judge Thomas Penfield Jackson, who on Friday offered the strongest clues yet as to what he is thinking.

With testimony concluded in the Microsoft antitrust case, attention is now riveted on two issues: the possibility of a settlement and speculation over a verdict by Judge Thomas Penfield Jackson, who last week offered the strongest clues yet as to what he is thinking.

For example, one question from Jackson to Microsoft witness Richard Schmalensee, dean of MIT’s Sloan School of Management, was prefaced with the premise, “Assume Microsoft is a monopoly ...”

At another point last week, Jackson compared Microsoft’s operating system dominance with Wal-Mart Stores Inc.’s impact on a small town. Schmalensee said consumers might be better off with a megamart than with many small stores. But Jackson said, “Then you have a benevolent despot with a monopoly.”

“Judge Jackson has not been shy about his disdain for Microsoft and its inappropriate business practices,” said Hillard Sterling, an attorney at Gordon & Glickson PC in Chicago.

During 76 days of testimony, attorneys explored a broad array of government charges, including allegations that Microsoft illegally tied its browser to its operating system, “polluted” Java and bullied PC makers to dump Netscape Navigator.

Many Possibilities

But even if Jackson rules against Microsoft, it doesn’t mean the government necessarily wins; he could offer a mixed verdict. The battle has been far from one-sided, and the judge has given Microsoft its due at times, especially on Microsoft’s approach to Java.

And the case could go all the way to the Supreme Court.

Both sides left the courthouse this week saying they were still open to a settlement. But the outlook remains poor.

In court this week, Microsoft worked hard to show that it isn’t a monopoly and that it faces competitive threats, especially from America Online.

But once again, as has happened so often in the case, a piece of evidence turned up to cast doubt on that contention. Notes from a Microsoft meeting in December, taken by an unidentified official, quoted Microsoft Chairman and CEO Bill Gates as saying, “AOL doesn’t have it in their genes to attack us in the platform space.”

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