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  U.S. and Microsoft Ask Judge for Delay

By Rajiv Chandrasekaran
Washington Post Staff Writer
Saturday, September 12, 1998; Page D15

Lawyers for the Justice Department and Microsoft Corp. jointly asked a federal judge yesterday to delay their antitrust trial for three weeks because each side still must conduct about 20 pretrial interviews with industry executives, sources close to the case said.

U.S. District Judge Thomas Penfield Jackson did not immediately rule on the request, though legal specialists expect him to issue a decision early next week. The trial originally had been scheduled to start on Sept. 8 but last month was delayed until Sept. 23 after conflicts arose on questioning of Microsoft executives.

Both sides agreed to request the three-week delay after Jackson yesterday denied a bid by Microsoft lawyers to postpone the trial indefinitely, the sources said.

The Justice Department and 20 state attorneys general allege that Microsoft is violating federal antitrust laws by including Internet-browsing technology in its Windows 98 operating system software. By doing so, the government alleges, Microsoft is illegally using its monopoly with Windows -- which runs more than 90 percent of the world's personal computers -- to promote a separate product.

Government lawyers are seeking to require Microsoft to strip its Internet Explorer browser from Windows 98 or include a browser made by rival Netscape Communications Corp. alongside Explorer.

Getting a decision in the case as quickly as possible is important for the government because delays weaken the effect of a potential ruling in the government's favor. Windows 98 was released in May and has sold more than 1 million copies with the integrated browser.

Government lawyers still must conduct 24 pretrial interviews, or depositions, the sources said, while Microsoft must conduct 18. Each deposition can last longer than a day.

"We're eager to resolve this case for consumers," said Microsoft spokesman Vivek Varma. "But all sides involved in this case have agreed that additional time is necessary to ensure that the court has all the facts."

A Justice Department spokeswoman declined to comment on the scheduling of the trial yesterday.

The bid to delay the courtroom showdown until Oct. 15 was made after a three-hour hearing into Microsoft's request that the entire case -- or at least parts of it -- be thrown out of court. The software giant contends that the Justice Department and the attorneys general lack sufficient evidence to prove their allegations.

"This case was brought in a half-baked fashion, raising claims of dubious merit," Microsoft attorney John Warden said. "There is no basis for putting us through the time and expense of a trial."

Jackson did not rule yesterday on the request to dismiss the case.

The Justice Department's lead attorney, David Boies, asserted that the government had the evidence to support its claims. He and Stephen Houck, an attorney representing the states, provided Jackson with a few samples, outlining how Microsoft Chairman Bill Gates became involved in efforts to use the market clout of Windows to promote Internet Explorer.

Boies described a memorandum written by Gates relating a conversation he had with America Online Inc. chief executive Steve Case in which Gates urged Case to use Microsoft's browser instead of Netscape's in AOL software. Although Boies said Microsoft's browser was technically inferior to Netscape's, he said Gates promised Case the ability to promote AOL with an "icon" on the Windows desktop next to the icon for the Microsoft Network, AOL's primary competitor at the time.

"Microsoft talks about this as putting a bullet though the head of its own MSN network," Boies said. He said the company took that step because "they knew the browser threatened their core [Windows] monopoly."

Gates, according to Boies, also rejected a suggestion from his subordinates that Microsoft's office software suite, which includes a word processor and spreadsheet, be designed to work equally well with all browsers. "That's wrong. I disagree with that," Gates said, according to a memo read by Boies.

Warden, Microsoft's attorney, dismissed the comments as "locker room talk" that did not speak to the antitrust violations alleged in the government's lawsuit. He maintained that as "a single product having many functionalities," Windows 98 is not an antitrust violation.

© Copyright 1998 The Washington Post Company

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