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Attorneys face off in heated Novell, Microsoft antitrust trial

Attorneys face off in heated Novell, Microsoft antitrust trial

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SALT LAKE CITY — A heated exchange between lawyers for computer heavyweights Microsoft Corp. and Novell Inc. marked the beginning of the third week of testimony in the federal antitrust case.

After U.S. District Judge J. Frederick Motz excused the 12-person jury for the day, attorneys for both sides lit into each other Monday over the testimony of former Novell CEO Robert J. Frankenberg.

Frankenberg allowed that he didn't make the decision about when to release Novell's PerfectOffice suite designed to run on Microsoft's Windows 95 operating system. That admission also left the judge flabbergasted.

"Business people apparently didn't make this choice," said Microsoft attorney David Tulchin, adding "low-level developers" made the decision.

That set off Novell attorney Jeff Johnson who countered that Novell did not make choices randomly and those developers were not low-level workers but managers. Furthermore, he said Microsoft co-founder Bill Gates hamstrung the release of PerfectOffice by yanking critical computer code from Novell mid-development.

It had become clear that we could not compete in that market. It had become a tilted playing field. No matter what we did, we knew we could not compete.

–Robert J. Frankenberg

"He did it, frankly, with malice," Johnson said.

Tulchin responded by saying, "No police officer came to Novell and took anything away."

Novell sued Microsoft in 2004, accusing the computer giant of violating U.S. antitrust laws.

Novell claims Microsoft and specifically Gates delayed the launch of Windows 95 in 1995 to keep Novell's newly acquired WordPerfect word processing and QuattroPro spread sheet applications from gaining a place in the market. Novell sold the two products in 1996, taking an estimated $1.4 billion loss. It seeks at least that much plus interest as compensation.

Microsoft argues Novell bought a failing company in WordPerfect and was slow to recognize the emergence of Windows. It contends Windows 95 delays were based on technical decisions regarding features in the operating system.

Novell released PerfectOffice in May 1996, but much too late to grab market share from Microsoft Office, containing the Word and Excel programs, as the use of home computers proliferated.

"It had become clear that we could not compete in that market. It had become a tilted playing field," Frankenberg testified Monday. "No matter what we did, we knew we could not compete."

During the attorney jousting, the judge interjected several of his own thoughts, saying it was "shocking" to hear the CEO didn't make the call regarding when to release PerfectOffice.

"It's mind-blowing to me, frankly, that Mr. Frankenberg was not involved in this decision. It's just beyond anything I can comprehend," Motz said.

"You're telling me you would let a junior partner … " he said to Novell's attorney, stopping midsentence.

Motz also said it appears that Gates "saw Novell as a major competitor and he was scared" and didn't want to share the computer code Microsoft had developed.

Gates is expected to take the witness stand at some point during the contentious trial, which is scheduled to run another five weeks.

Novell and WordPerfect trace their roots to Utah County, Novell in Provo and WordPerfect in Orem.

Since Novell filed its antitrust suit seven years ago in Salt Lake City, a judge has dismissed five of its six original claims. The case was largely argued in Maryland, where the federal court consolidated several other antitrust cases involving Microsoft. Because Motz oversaw the case there, he traveled to Utah to preside over the trial on the lone unresolved issue.

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Dennis Romboy


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