By Siobhan Kennedy
The judge presiding over the Microsoft-Bristol antitrust trial in Connecticut yesterday rejected a motion from Microsoft’s attorney to throw the case out on the grounds of a lack of evidence. The move – technically referred to as a motion for directed verdict – came after Bristol’s final witness, the company’s senior VP of sales and marketing, Jean Blackwell, had finished giving evidence in the courthouse here Wednesday. The rounding up of Blackwell’s testimony marks the end of Bristol’s evidence in support of its case, which began June 2.
But before Microsoft called its first witness, the software giant’s VP Jim Allchin, to the stand, the company’s attorney David Tulchin announced a formal motion for the case to be immediately dismissed. Tulchin said Bristol’s witnesses had presented no evidence to support the tiny, Danbury-based software firm’s allegations against Microsoft. There is no evidence from which a reasonable jury could find any liability against Microsoft on antitrust claims, he told the judge.
Drawing on witnesses evidence and on complicated antitrust theories, Tulchin addressed Bristol’s specific antitrust allegation; that Microsoft had refused to deal with Bristol’s requests for full access to the Windows NT source code. Looking at the facts that pertain to refusal to deal no one would dispute that Microsoft bargained with Bristol, he said. Keith Blackwell [Bristol CEO] himself admitted in evidence that the deal Bristol was offered was better than the deal Mainsoft was offered and ultimately took.
He also drew on the testimony of Bristol’s expert witness Richard Langlois, whom he said had conceded that the Wise program was pro-competitive and good for consumers. Microsoft, Tulchin stressed again and again, didn’t refuse to deal with Bristol, rather it underwent lots of negotiations.
He went on to dismiss Bristol’s next allegation, that Microsoft was leveraging its monopoly in the PC operating systems market to become dominant in the server sector. I don’t understand the claim in relation to the Wise agreement. he told the judge. He said none of Bristol’s witnesses said anything which proved any link between Bristol and the Wise program and Microsoft using its monopoly power in the PC OS market to obtain the same monopoly in servers or workstations.
Moving to Bristol’s claims that Microsoft’s actions against Bristol were harmful to competition in the Unix market, he read aloud a quote from the judge, who’d said earlier in the trial. If there is evidence showing a significant drop in the number of applications on Unix, the jury could infer that there was harm to competition. Tulchin said that the Unix market is in fact experiencing the exact opposite phenomenon. There was no evidence on record pertaining to a drop in the number or importance of applications on Unix….no witness even addressed that question, he said, and went on to cite figures from market analyst firm IDC which predicts a growth in the Unix market from $16bn in 1997 to $30bm in 2002.
But after a brief retort from Bristol’s chief attorney Patrick Lynch, who refuted Tulchin’s claims, the judge – looking thoughtful – said it was her decision not to dismiss the case and that she would reserve judgment until the court had heard Microsoft’s side of the story. With that, she ushered in Redmond’s first witness, Jim Allchin. Compared to his grueling couple of days on the stand during the Washington trial, where the government’s attorney, David Boies, had shown that an Allchin-approved video testimony had actually been a fake, day one in Connecticut was a breeze. Bristol is promising a lively cross examination tomorrow.
Earlier in court yesterday, during his cross examination of Jean Blackwell, Tulchin attempted to prove that Bristol’s revenues were still growing despite its claims that Microsoft withdrawing rights to full NT source code would put it out of business. He pointed to documents that showed combined first-quarter sales of Bristol’s Wind/U product and associated consultancy had increased year-over-year between 1996 to the present day, where first- quarter gross revenues were $1.73m. The first quarter of 1999 was the best quarter you’ve had in the history of the company for the Wind/U product wasn’t it? Tulchin asked. Yes, Blackwell said, But we focused on services, the actual Wind/U license sales are declining.
She also pointed out that the figures were inflated due to run- time sales – royalties the company receives from its customers selling their products which use Bristol’s technology. Furthermore, Tulchin said that based on Bristol’s stated projected incomes, its total revenues were also increasing year- over-year. But during the lunch recess, Bristol CEO Blackwell said for Microsoft to insinuate that Bristol is doing well is ridiculous. This is actually our second year of declining revenues, he said. It’s like a tree. If you cut off its roots, it still looks green and healthy but underneath you know it’s dying. Jim Allchin’s testimony is due to continue today.
