Microsoft: Looking to KO the DOJ (Part 2 of 2)

Handing over an 88-page paper is one thing. Getting a judge to throw out the largest antitrust case of the decade is another.

Make no mistake about it: getting Judge Jackson to throw out the case will be an uphill battle. The DOJ believes that there will be a trial. DOJ spokesperson Gina Talamona summed up the government's thoughts: "Microsoft said nothing new today...ever since we brought this case, Microsoft's position can't be squared with the company's own documents, much less with the large body of evidence that the government will introduce at trial."

Among other things, Microsoft has to prove that none of key facts it shows are not under dispute to have the case fully thrown out. In a case where so many competitors are involved, it will be hard. Some analysts point to the now infamous May 21, 1995, meeting at Netscape's headquarters where the government claims Microsoft tried to split up the browser market as a fact in dispute. Microsoft's response was that "the prominence plaintiffs give to the June 21, 1995, meeting should be recognized for what it is - an effort to tar Microsoft based on an erroneous account of the facts. While efforts to cast Microsoft as a villain may be more fun and less taxing for plaintiffs than the rigorous process of establishing the essential elements of their claims, such atmospherics are no substitute for proof of anticompetitive conduct."

Another potential problem is that Microsoft's filings deal heavily with the June 23 rulings on the integration between Windows 9x and Internet Explorer. The ruling only applies to a loose 1995 consent decree, not the harder stance the government is putting on now.

Still, some believe that Microsoft's filings were strong. The DOJ, although they may have amassed a "large body of evidence that the government will introduce at trial," was very weak in showing how Microsoft's integration between Windows and Internet Explorer actually hurt end users and competitors.

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