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  Microsoft Rebukes Government

By Rajiv Chandrasekaran
Washington Post Staff Writer
Wednesday, September 9, 1998; Page C11

Microsoft Corp. told a federal judge yesterday that the Justice Department and 20 state attorneys general are "slinging as much mud as they can" at the company "in a desperate attempt to cloud" Microsoft's request to get the government's antitrust lawsuit thrown out of court.

In a feisty, 48-page legal brief, the software giant argued that government lawyers are trying to refashion their case by raising new allegations and "numerous irrelevant facts" as both sides prepare for a trial scheduled to begin later this month. The company reiterated its argument that the suit should be dismissed, saying the government's case is undercut by a federal appeals court ruling this summer and evidence the company has gathered from competitors.

The Justice Department and the states contend that Microsoft is violating antitrust laws by bundling Internet "browsing" software with 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 have asked U.S. District Judge Thomas Penfield Jackson to force Microsoft to strip its Internet Explorer browser from Windows 98 or include a browser made by rival Netscape Communications Corp. alongside Explorer.

Microsoft, which argues that its browser and operating system software are legally integrated, first asked Jackson to throw out the case last month. But last week the Justice Department and the states urged the judge to let the case go forward, maintaining that Microsoft has used its market clout in an attempt to strong-arm several companies -- including Intel Corp., Apple Computer Inc., Intuit Inc. and RealNetworks Inc. -- to favor Microsoft's products or abandon competitive technologies.

Microsoft charges that the government's allegations relating to companies other than Netscape aim to rewrite the original lawsuit and "distract the court from fatal defects in their claims."

"The central facts of the case and the overwhelming body of law support Microsoft's position," William H. Neukom, the company's general counsel, said in a statement yesterday. A Justice Department spokeswoman called Microsoft's argument "nothing new." The spokeswoman, Gina Talamona, said the department looks forward to "proving at the upcoming trial that Microsoft engaged in a series of anticompetitive acts to maintain its operating system monopoly and to extend that monopoly to Internet browsers."

Despite Microsoft's protestations, Jackson last week ordered the company to hand over records relating to meetings between Microsoft executives and officials at Intel and Apple.

In yesterday's brief, Microsoft also cited a letter from Netscape to the Justice Department to dispute the government's claim that it is "technically feasible and practicable" to separate Internet Explorer from Windows 98.

In a March 6, 1998, letter to Joel I. Klein, the department's antitrust chief, Netscape wrote that "we are totally unable to provide examples of files that can or cannot be deleted from Windows 98 since . . . it is our understanding that it simply is not possible to delete any portion of [Internet Explorer], or of browsing functionality, from Windows 98 as presently configured without severely interfering with the operating system." In its filing, Microsoft also chafed at a statement last week by a government lawyer that the company's chairman, Bill Gates, suffered from "a particular failure of recollection" at a pretrial interview last month. The company called that a "baseless personal attack on the credibility of Microsoft's CEO."

© Copyright 1998 The Washington Post Company

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