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Novell v. Microsoft Trial Transcripts - Day 8, Oct. 27, 2011 ~pj | 119 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
corrections thread
Authored by: designerfx on Sunday, June 17 2012 @ 10:36 PM EDT
corrections here please

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off topic thread
Authored by: designerfx on Sunday, June 17 2012 @ 10:36 PM EDT
off topic comments here

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newspicks thread
Authored by: designerfx on Sunday, June 17 2012 @ 10:37 PM EDT
newspicks comments here

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Novell v. Microsoft Trial Transcripts - Day 8, Oct. 27, 2011 ~pj
Authored by: Ian Al on Monday, June 18 2012 @ 03:09 AM EDT
Day 5
THE COURT: I hope the reason for my impatience is clear. This case is not about trying -- about the dominance that Word might have obtained over WordPerfect. And it's not. That claim is time barred and that ruling is subject to appeal. And the Fourth Circuit has ruled on it. The Tenth Circuit can do it. But the fact of the matter is to the extent this is about acquiring or maintaining monopoly in the operating systems market, and your own client just testified and your own witness just testified that it was a better product and WordPerfect was going to use it and it was going to be -- it's clear as a bell to me. And I'll take a recess.
Day 6
THE COURT: ...There's going to be a recurring issue in the case. First, I need to know from Novell now, and you don't need to give it to me now, maybe back in the briefing on the instructions I'll understand it better, but I don't quite know why I hadn't picked this up before. But until I heard the opening statements, I really thought that WordPerfect -- Microsoft had made Windows 95 incompatible with WordPerfect as an application system. I don't know why I thought that, and I probably missed it in the papers. I now understand that is not the case. That as a word processing application WordPerfect could be used by Windows 95, and an icon could have been installed and it could have been used. And to the extent I just missed this, I apologize, but frankly that's where I was.

Now that I understand the issue better, and I understand Novell's position that providing documentation for the NameSpace extension APIs increase functionality and that the third way is different than simply sitting on top of the -- having the application sitting on top of the operating system. I understand that.

But it does add a new dimension, which is to what extent a monopolist has to cooperate with a competitor by providing to the competitor product enhancement that the monopolist has made to his own product through its own investment and research and development...

MR. JOHNSON: Your Honor, if I could since we do have five minutes, and we will address in a fuller fashion to Your Honor. But two short points. First with your -- with respect to your first comment about duty of a monopolist to help a competitor, and you asked if there was a case. And there is a case. It's called Novell vs. Microsoft. And you addressed this point in summary judgment. In fact --

THE COURT: I was under -- whatever I did, I'll reread it. I was under -- frankly, and I'm embarrassed I was under a misapprehension. I thought that WordPerfect would not run on Windows 95.

MR. JOHNSON: -- because what you said was that this is not just the normal case of a monopolist withholding some functionality that it had a right to do so. This was a case that involved an element of deception.

THE COURT: Well, you tell me also in the evidence where there is any evidence that when Microsoft first published the APIs and NameSpace extensions API it knew at that time that it was going to withdraw them. That would be a deception claim. What you're dealing with is something, which frankly what I've heard is Microsoft's own e-mails that you rely upon is an open question until the very end when Mr. Gates makes his decision to withdraw. Now, that may have been wrong. It may very well have been wrong in that it was favoring Word or WordPerfect, but that's not the claim.

I don't see where there's any evidence that at the time that in the alpha and beta releases it intended at that time to withdraw.

MR. JOHNSON: Your Honor, you may recall the evidence that came in through Mr. Gates at the Hood Canal Retreat. There was the discussion of the Radical Extreme which was a plan, a plan, Your Honor, to deny the extensible shell of Chicago to ISVs.

THE COURT: When was that?

MR. JOHNSON: That was in 1993. Mr. Gates endorsed that plan. The actions ultimately taken in this case mirrored that plan.
In the space of a day, Judge Motz has forgotten that the Novell case is about middleware. He reverts to discussion about unfair competition between office suites. Mr. Johnson explains it's all about middleware and that Bill Gates promoted the deception and anticompetitive action against WP as middleware in 1993, before they first published and then withdrew the APIs.

On Day 8
THE COURT: Well, it could be a legal issue, and the general question I have is there any place else where shared technological information provided any basis for an antitrust action against Microsoft? It seemed to me it was external business practices dealing with the OEMs and what they did in terms of threatening people, and I know of no case, and I could be wrong, and one of the questions I have is, is this is a case about you want Microsoft to provide its enhanced technology so that you can use it.
Judge Motz is back to the issue of competing applications. He has forgotten his embarrassment on Day 6 and he clearly hasn't reread his own opinion in Novell v. Microsoft on this very issue.

Also, during the preamble to the trial, Judge Motz told Novell that, if no senior manager complained about the APIs at the time, then their case was lost. I can't find it ATM, but Novell produced a 1994 message from Novell CEO, Frankenburg, to Bill Gates complaining about the APIs. The judge has forgotten this, as well, come the 8th day of the trial. (I have hunted for it on Groklaw, but without luck. I know PJ put it in a story.)
THE COURT: Okay. At this stage I'm not going to let them in. If I really thought that the jury -- I think the jury thinks what I think, which is what I thought was that the opening statements talked about complaints to Microsoft. I don't think the door was opened.
I don't understand what is going on in this case. I don't think Judge Motz is being malicious. When he returns to speed on the facts, he quite clearly has a full appreciation of the importance of the points. However, that grasp on the facts seems to fade in days. I am actually a little worried on Judge Motz behalf.


Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

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Technology failures...
Authored by: tiger99 on Monday, June 18 2012 @ 07:50 AM EDT
It seems that there were a few technical hitches. Just wondering whose technology was involved? I can guess, of course, and most likely be correct (based on past experience of that particular company's abysmally poor products), but it would be nice to have the true facts.

It would be rather amusing if their OS would not even perform properly in a trial involving them.

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