Caldera wins another round in MS antitrust case

Judge rules case to be answered in three more key areas

Microsoft has lost another round in the Caldera private antitrust case.

Caldera inherited the right to fight the case along with DR-DOS, which was formerly owned by Novell.

Judge Dee Benson earlier this week denied four motions by Microsoft for partial summary judgement. He denied three earlier motions in June, and ruled against Microsoft from the bench in July over a fourth motion. One motion under state law is still under consideration.

Microsoft has been attempting to get aspects of the case struck out via summary judgement, so whenever it fails, the message is that the judge feels there's a case to answer in that particular area.

The Caldera claims remaining live this week therefore are: that Windows 95 constitutes an illegal tie of MS-DOS and Windows; that Microsoft created intentional incompatibilities between Windows 3.1 and DR DOS; that Microsoft created perceived incompatibilities between Windows 3.1 and DR DOS; and that Microsoft black-listed DR DOS developers from the Windows 3.1 beta.

The judge's finding was that there was sufficient evidence for the claims to proceed to trial, and in his ruling he included some very juicy extracts from Microsoft's internal emails.

Microsoft has been successful in keeping most of the detail of the case under a cloak of secrecy, but this is unlikely to be sustained in view of the success of US media in getting the wraps taken off most of the evidence in the DoJ case.

The glimpses that Judge Benson has given us of some of Caldera's evidence confirm the suspicions about events that Microsoft had previously categorically denied, even in the DoJ case.

This is particularly bad news for Microsoft, though it was probably expected in view of the weight of evidence that Caldera has accumulated. Microsoft did everything possible to delay the Caldera case while it was engaged with the DoJ, but now the worst possible scenario has arisen: the Caldera case will go to trial on 17 January, probably between Judge Jackson's findings of fact and the next hearings on remedies.

The Caldera case will diffuse Microsoft's major argument that the DoJ case is an example of the US government having acted improperly against Microsoft. Even worse, there will be a jury for the Salt Lake City trial, and Caldera is a local favourite.

The next step is a hearing next week on a motion by Caldera to add two more witnesses, and then a pre-trial hearing on 7 December which will probably set the procedural ground rules. ®