Microsoft to ask for dismissal of Novell lawsuit

BANGALORE — Microsoft Corp. intends to ask the court to dismiss a Novell US$1.3 billion antitrust lawsuit, after a hung jury in Utah could not come to an accord on the case last week.
Novell filed the lawsuit seven years ago, claiming Microsoft abused its dominant position in the PC operating system market to harm Novell’s desktop applications business. On Friday, jury members at the U.S. District Court in Salt Lake City, Utah, informed the judge they were unable to reach a unanimous decision, and the judge declared a mistrial.
Novell said that it will seek a re-trial in the case.
In a filing to U.S. federal judge J. Frederick Motz, Microsoft’s lawyer said Monday that the company intends to renew its motion for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure.

A motion for a judgment as a matter of law is a request for relief on the basis that the opposite party’s case does not have legally sufficient evidence for any reasonable jury to take a decision. It can be renewed as a second chance after a jury trial.
In ruling on the renewed motion, under Rule 50 the court may allow judgment on the verdict if the jury returned a verdict, order a new trial, or direct the entry of judgment as a matter of law.
Microsoft will submit papers in support of its motion on Jan. 13. The company will argue that based on the evidence presented by Novell, it failed to meet the legal standard on some elements of the case, and therefore, the case should be dismissed, a Microsoft spokesman said.
Novell did not have an immediate comment on Microsoft’s move. It was acquired earlier this year by The Attachmate Group and is now a subsidiary of that company.
The hung jury came after seven years’ preparation and a two-month trial. Novell filed its lawsuit seven years ago, claiming Microsoft abused its dominant position in the PC OS market to harm Novell’s desktop applications business.

At least one juror was in tears as the jury was dismissed, the Microsoft spokesman said.

The jury had asked for clarification on several points during their deliberation, including questions about the definition of “middleware.” The terminology apparently caused some confusion. At one point, the jury asked whether Windows 95 was considered “an operating system or middleware,” court filings show.

“While Novell is disappointed that the jury was unable to reach a unanimous decision, Novell still believes in the strength of its claim,” the company said in a statement. “Clearly, this is a complicated technical case and Novell is hopeful that a re-trial will allow the opportunity to address any uncertainties some of the jurors had with this trial.”

Novell’s lawsuit accused Microsoft of misleading it about certain technical details prior to the release of Windows 95, to the detriment of Novell’s WordPerfect, Quattro Pro and other applications. Microsoft’s behavior ran afoul of U.S. antitrust laws, according to Novell, which is seeking approximately $1.3 billion in damages.

Prior to the launch of Windows 95, Microsoft invited Novell to work on versions of its applications for the new Microsoft operating system. But Novell ran into a variety of problems that it claimed were caused by Microsoft.

Microsoft had removed a key set of internal APIs (Application Programming Interfaces) that Novell’s software needed to function properly. Novell also found a number of bugs in Windows 95 that caused problems for its software, and which Microsoft was allegedly slow to address. Novell also accused Microsoft of hiding certain system calls that could only be used by other Microsoft applications, such as Microsoft Office, speeding their performance.

Last month, former Microsoft CEO Bill Gates took the stand and denied his company had acted to deliberately harm Novell. The changes to Windows 95 were required to make the OS stable, he told the jury. Novell could have produced a more competitive version of its software but acted too slowly, Gates said.

The case was originally filed in the U.S. District Court in Salt Lake City, but was moved to Maryland to combine pretrial proceedings with other lawsuits filed against Microsoft. Novell had filed six claims against Microsoft, five of which were dismissed, with the U.S. Court of Appeals in May reversing the dismissal of the sixth claim and moving the case back to the District Court in Utah.

Although Microsoft does not cast as deep a monopolistic shadow across the IT landscape as it once did, the case is significant for a number of reasons, Charles King, head of the Pund-IT analysis firm, said earlier this week.

“Many would claim that the Novell case is old news. I’d take the opposite side of that argument — anti-competitive behavior and how it is punished or condoned is as critically important today as it has ever been,” King said.

(With files from Joab Jackson and James Niccolai, IDG News)

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