Gates Tries Softer Voice In a Loud Court Battle

Microsoft Chief Polite, Controlled in Court Testimony

It was a different Bill Gates this time.

Gone was the sullen, combative chief executive of Microsoft Corp. who gave an embarrassing deposition in the company's antitrust case two years ago. In his place yesterday was a controlled, polite and more mature chairman of the company as he parried under several hours of questioning at hearings to determine how Microsoft will be sanctioned for breaking antitrust laws.

Watched by his wife, spectators and reporters in a full Washington courtroom, a well-prepared Gates provided a human face and a modicum of deference to a federal judge who holds considerable power over the company's future.

But the world's richest man was animated and unequivocal as he told District Court Judge Coleen Kollar-Kotelly that provisions sought by a coalition of state prosecutors to rectify Microsoft's illegal conduct would lead to its ruin.

"The practical effect of [the states' provisions] would be to cripple Microsoft as a technology company," Gates wrote in 155 pages of detailed testimony submitted before he took the witness stand. The states' provisions are simultaneously so onerous, vague and contradictory, he argued, that Microsoft could not meet their terms without pulling its dominant Windows operating system from the market.

"Microsoft is committed to complying fully with court orders, including any remedy that may be ordered in this case," Gates said. "We can do that only if the remedy is clear as written and its terms feasible."

Gates, who displayed encyclopaedic knowledge of the states' terms, avoided mention in his written testimony of a proposed settlement struck late last year between the company and the Justice Department. By doing so, Microsoft hoped to limit how much Gates could be questioned on the settlement.

The nine states and the District of Columbia, which originally were part of a joint federal-state prosecution team, rejected the agreement as inadequate and are pursuing stiffer restrictions on the company's conduct.

If it was Gates's mission to demonstrate poise and reason, it was the job of the states' attorney, Steven Kuney, to show that Microsoft and its founder remain largely unreconstructed despite four years of litigation.

The choice of Kuney was the first surprise of the day. His partner, legendary trial lawyer Brendan V. Sullivan, is the states' lead attorney, and a showdown between Sullivan and Gates has been long anticipated.

But a source close to the states said Gates's testimony was so detailed and technical that Kuney, who has a better grasp of technology and antitrust issues, was chosen over the weekend to tangle with Gates.

Often resorting to incriminating internal Microsoft e-mail, Kuney pressed Gates on several of his predictions that chaos would befall the company and consumers if the states' remedies were imposed.

Gates criticized as overly broad and ill-defined provisions that would require Microsoft to reveal more code to software makers who want to write programs that work with Windows. He said the provisions would allow competitors to effectively clone Microsoft programs.

But Kuney showed Gates e-mail demonstrating that Microsoft has often sought to clone the workings of rival software, including the Netscape Navigator Internetbrowser, which a federal appeals court found was crushed by Microsoft in the mid-1990s.