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Microsoft’s ‘ODF Patent’ as Vacuous as Its Promise of Interoperability

Posted in Interoperability, Microsoft, OpenDocument, Patents, Standard at 6:31 pm by Dr. Roy Schestowitz

Summary: Microsoft’s playbook of software patents and intraoperability [sic] gets no easy ride

IN PREVIOUS RECENT POSTS about ODF patents and Microsoft, we had brought up some suspects [1, 2, 3] which were then subjected to scrutiny. One of our readers, NZheretic, responded to this by saying that “Prior Art first [came] on XML mailing lists.” He wrote about this so-called invention back in 1999:

So what about giving compound document a wider definition?

a “Compound Document” is a set of Documents and Objects that can refer
and link to each other.

The compound document can then contain any type of data format.
valid xml files, DTDs , Schemes , image files etc.

If you could ‘unpack/unzip’ a compound document you would produce
a directory and files – just as in a normal file system and
a root document that can define the view of the
document as a Whole – index.xml or/and index.html.
You can then relatively reference Xlink/Xpoint documents as
easy as you would a directory of html files.

So why not just store a compound document in zip achieve file format
but with another affix just like java jar ‘files’.

It is easy to ‘peer into’ and ‘grab’ the content of a zip file,
java classes and C libraries that can do this already exist.
So why not just add this functionality to all XML applications,
formatter, browsers etc.

“As far as I know,” writes NZheretic, “it predates all Microsoft XML-related patents.” The significance of this discussion has to do with its origin too. It comes from XML DEV[elopers], whose mailing list was based at Imperial College (London). NZheretic shows us also this old message (same E-mail) and explains that “XML Devel was the primary development mailing list for XML in the 1990s.”

“To Microsoft, “ODF” is mostly about marketing, not practicality…”To quote from an official page, “XML-DEV was created in January 1997 by Prof. Peter Murray-Rust of the University of Nottingham (UK) and Dr. Henry Rzepa of Imperial College (UK) and was managed and operated by them with the help of resources generously donated by Imperial College until February 2000, when operation of the list was transferred to OASIS. The efforts of Prof. Murray-Rust and Dr. Rzepa played a critical role in the evolution of structured information standards. XML-DEV was the key resource for coordinating software development while the XML specification itself was in draft. Over the years, many important resources have resulted from XML-DEV. One of the most significant contributions was the development of the SAX API for XML parsers, constructed by more than 100 members on the list and coordinated by David Megginson. SAX is now universally accepted as a de facto standard.

“See also July October 2000 for the dumped xml-packaging mailing list,” adds NZheretic. This might help.

When asked in what year Microsoft had patented the related ‘invention’, NZheretic replied: “Not sure. Their Embedding binary object in HTML ( Note not XML ) predates my email, but does not mention using zip/archive at all. [...] Also encoding binary objects in text formats ( as per the Microsoft HTML patent ) ignores a decade of prior art in the form of the USENET binary groups.”

If this contribution from NZheretic does not move everyone towards invalidating the patent, it sure makes any claims related to it very weak.

In other news, an event on ODF interoperability is coming next month. Microsoft need not attend because “interoperability” is certainly not on its agenda right now. To Microsoft, “ODF” is mostly about marketing, not practicality, as the following posts showed and explained:

Harish Pillay added last night: “Microsoft forking ODF? They would love to.”

By the looks of it, I cannot but feel that MS has found a way to fork the ODF 1.1 to suite their world view of having their product as the only one out there. I have to agree with IBM’s Rob Weir in this post.

Microsoft has a proven track record of harming interoperability in exactly this way. It is perhaps a good time to include ECIS’s recent paper about it, which we do below.

Original from ECIS [PDF]

HTML version by Groklaw


A History of Anticompetitive Behavior and Consumer Harm

March 31, 2009


I. INTRODUCTION ………………………………………………………………1


A. Microsoft’s Campaign To Destroy DR-DOS ………………………………………………….3

B. Microsoft’s Anticompetitive Per Processor License Fees …………………………………5

C. Microsoft’s Retaliation And Price Discrimination Against IBM ……………………….6

D. Microsoft’s Organized Collective Boycott Against Intel ………………………………….7

E. Microsoft’s Elimination Of Word Perfect ………………………………………………………7

F. Microsoft’s Deceptive WISE Software Program……………………………………………..9

G. Microsoft’s Elimination Of Netscape …………………………………………………………..10

H. Microsoft’s Attempts To Extinguish Java …………………………………………………….14

I. Microsoft’s Elimination Of Rival Media Players …………………………………………..16

J. Microsoft’s Campaign Against Rival Server Operating Systems……………………..18


A. Microsoft’s Failure To Comply With The Final Judgment ……………………………..20

B. Microsoft’s Campaign of Patent FUD against Linux and Open Source

C. Microsoft’s Ongoing Misconduct Has Sparked Further European Commission
Investigations …………………………………..23



A. Microsoft’s Operating System Monopoly Has Harmed Consumers …………………25

B. Microsoft’s Office Monopoly Has Harmed Consumers………………………………….26

C. Microsoft’s Web Browser Monopoly Has Harmed Consumers ……………………….28

VI. CONCLUSION………………………………………………………31



On January 15, 2009, the European Commission issued a new Statement of Objections to
Microsoft, outlining the Commission’s “preliminary view that Microsoft’s tying of its web
browser Internet Explorer to its dominant operating system Windows infringes the EC Treaty
rules on abuse of a dominant position (Article 82)” and “distorts competition on the merits
between competing web browsers.”1 The European Commission’s recent Statement of
Objections validates the ongoing and urgent need to address Microsoft’s practices that affect the
openness of the Internet, consumer choice, and competition in general. This paper provides a
brief history of Microsoft’s misconduct and demonstrates that, in light of Microsoft’s long and
continuing use of anticompetitive tactics, the Commission’s concerns are well justified.2

* * *

“This anti-trust thing will blow over. We haven’t changed our business practices at all.”
— Bill Gates, Microsoft founder and then-CEO (1995)3

For more than two decades, Microsoft has engaged in a carefully designed and extremely
successful campaign to protect and extend its monopolies. Microsoft has repeatedly made
market allocation proposals to its competitors and has used a broad range of other
anticompetitive and unlawful tactics to eliminate potential rivals, including tying, predatory
product design, and intentional deception.

Microsoft owns several monopoly products, including its Windows operating system and
Office suite of productivity applications.4 These monopolies are extremely lucrative: Microsoft

generates more than $60 billion each year, largely from Windows and Office.5 It has profit
margins of 77% and 65% for these two monopoly products.6 Over the years, Microsoft has
carefully cultivated and expanded the barriers to entry protecting these monopolies. As the D.C.
Circuit explained in discussing the barrier to entry protecting Windows:

That barrier–the “applications barrier to entry”–stems from two
characteristics of the software market: (1) most consumers prefer operating
systems for which a large number of applications have already been written; and
(2) most developers prefer to write for operating systems that already have a
substantial consumer base. This “chicken-and-egg” situation ensures that
applications will continue to be written for the already dominant Windows, which
in turn ensures that consumers will continue to prefer it over other operating

Indeed, Microsoft originally gained its Office monopoly for the express purpose of
strengthening the applications barrier that protects Windows. As one of Microsoft’s senior
executives wrote in an internal document:

If we own the key “franchises” built on top of the operating system, we
dramatically widen the “moat” that protects the operating system business…. We
hope to make a lot of money off these franchises, but even more important is that
they should protect our Windows royalty per PC…. And success in those
businesses will help increase the opportunity for future pricing discretion.

Microsoft recognized, however, that owning Office and other applications would not
alone be sufficient. In particular, Microsoft saw a serious potential threat in the form of so-called
“middleware” products. Middleware products are software products that, like Windows, expose
application programming interfaces (“APIs”) that software developers can use in writing other
applications. Microsoft recognized that, if any middleware product gained widespread
popularity, “developers might begin to rely upon APIs exposed by the middleware for basic
routines rather than relying upon the API set included in Windows.”9 Microsoft has therefore
crushed middleware threats, such as Netscape’s web browser.

Although Microsoft has paid many multimillion-dollar settlements for its antitrust
violations over the years, these settlements have proven a small price for such a large ongoing
revenue stream. Microsoft’s past conduct demonstrates its ability and willingness to engage in


unlawful acts to the detriment of consumers, and awareness of its history is valuable today in
understanding Microsoft’s ongoing business practices and strategies.


This section reviews a number of Microsoft’s past actions to extinguish potential
competitive threats. These include Microsoft’s: (a) campaign against DR-DOS; (b)
anticompetitive per processor license fees; (c) retaliation against IBM; (d) threats and retaliation
against Intel; (e) elimination of Word Perfect; (f) deceptive WISE software program; (g)
elimination of Netscape; (h) deception of Java developers; (i) elimination of rival media players;
and (j) campaign against rival server operating systems. While not comprehensive, these
examples of Microsoft’s past misconduct provide a clear illustration of the types of acts that
Microsoft has taken to protect and extend its monopolies.

A. Microsoft’s Campaign To Destroy DR-DOS

“[W]e need to make sure Windows 3.1 only runs on top of MS DOS.”

–David Cole, Microsoft Senior Vice-President10

“The approach we will take is to detect dr [DOS] 6 and refuse to load. The error
message should be something like ‘Invalid device driver interface.’”
–Phillip Barrett, Microsoft Windows Development Manager

In the early 1980s, Microsoft purchased an early version of a standard disk operating
system (“DOS”) that became known as MS-DOS.12 At the time, a number of rival operating
systems offered features, such as the ability to run multiple programs at the same time, that
Microsoft’s operating systems would not offer until years later.13 At the time, operating systems
were just beginning to move from a command-based interface to a graphical user interface.14

Microsoft developed a graphical user interface known as Windows.15 Early versions of
Windows did not actually “run” the computer rather, they were a shell surrounding the
underlying DOS program, which in turn ran the computer.16 Initially, Windows embraced the
DOS standard, which meant that Windows would run on top of any DOS, including DR-DOS,
Microsoft’s principal rival in the DOS market.17


This initial interoperability came to be known as part of Microsoft’s now-classic
“embrace, extend, and extinguish” strategy, which Microsoft has subsequently and successfully
employed in many other product areas.18 This strategy has three phases: First, Microsoft
“embraces” a competing product by developing software or implementing standards that are
compatible with the competing product.19 Microsoft then “extends” its own offering by creating
features or standards that are interoperable only with Microsoft’s proprietary technologies.20

Finally, when Microsoft’s proprietary software or standards have achieved widespread adoption,
Microsoft “extinguishes” its competitors by dropping any remaining pretense of compatibility.21

In the case of DR-DOS, Microsoft’s initial decision to make Windows interoperable
helped promote rapid adoption of the Windows shell. At the same time, however, it meant that
many consumers chose the superior DR-DOS over MS-DOS. In an email to then-Vice President
Steve Ballmer, Microsoft founder and then-CEO Bill Gates wrote:

“Our DOS gold mine is shrinking and our costs are soaring–primarily due to
low prices, IBM share, and DR-DOS…. I believe people underestimate the impact
that DR-DOS has had on us in terms of pricing.”

Microsoft “extended” Windows by making changes so that Windows would no longer
interoperate with DR-DOS smoothly.23 For example, Microsoft designed Windows to display an
ominous error message when used in conjunction with the DR-DOS software.24 Microsoft also


disseminated false information about DR-DOS “so people [would] make judgments against it
without knowing details or fa[c]ts.”25 By 1994, Microsoft had effectively extinguished DR-DOS
as a threat to Microsoft’s own operating system.26

B. Microsoft’s Anticompetitive Per Processor License Fees

“Another [DR-DOS] prospect bites the dust with a per-processor DOS
–Microsoft sales employee in an internal email

Most operating systems are purchased by original equipment manufacturers (“OEMs”),
such as Dell and HP. OEMs preinstall operating systems on the computers they manufacture
before selling the computers to consumers. In the late 1980s, Microsoft began requiring OEMs
to pay Microsoft a “per processor license fee” for each computer they shipped, regardless of
whether they installed Windows on the computer.28 This arrangement gave OEMs a powerful
incentive not to pay for and install competing operating systems.

In 1994, the U.S. Department of Justice (“DOJ”) filed an antitrust suit against Microsoft
challenging this conduct, resulting in a consent decree under which Microsoft agreed to stop
using per processor license fees.29 But the anticompetitive practice had already been quite
effective in reducing competitors’ share, particularly when combined with Microsoft’s other
actions directed against DR-DOS.30 The DOJ consent decree also sought to impose some


forward-looking relief by prohibiting Microsoft from bundling other products into its now-dominant Windows operating system. The decree included a proviso that permitted Microsoft to
build “integrated” products, however, and Microsoft later took the position that, under the
decree, it could bundle “‘a ham sandwich’ in the box with a PC preinstalled with Windows
95″and “require OEMs to take the whole package.”31

C. Microsoft’s Retaliation And Price Discrimination Against IBM

“As long as IBM is working first on their competitive offerings and prefers to
fiercely compete with us in critical areas, we should just be honest with each
other and admit that such priorities will not lead to a most exciting
–Joachim Kempin, Microsoft Senior Vice-President

Also in the mid-1990s, Microsoft took a series of steps to punish IBM for promoting a
competing operating system and personal productivity application suite. At the time, in addition
to developing software in competition with Microsoft, IBM was also a major OEM, selling
personal computers. As such, IBM was a major customer of Microsoft’s. Microsoft retaliated
against IBM for developing competing software products by charging IBM discriminatorily high
license prices for Windows, delaying licensing negotiations with IBM for Windows 95, and
withholding technical support.33 Microsoft informed IBM executives that it would only stop
treating IBM less favorably than other OEMs when IBM ceased competing with Microsoft’s
software offerings.34 This resulted in $180 million in lost revenue for IBM,35 and other damages
IBM eventually brought suit against Microsoft and Microsoft settled the claim for $775


D. Microsoft’s Organized Collective Boycott Against Intel

“Intel has to accept that when we have a solution we like that is decent that that is
the solution that wins.”
–Bill Gates, Microsoft founder and then-CEO

Microsoft used a similar approach in 1995, when it forced Intel to drop development of
Native Signal Processing (“NSP”), a set of instructions that would have allowed a computer’s
processor to directly support audio, video, and 3D graphics. Intel is a manufacturer of
microprocessor chips that are purchased by OEMs to use in the computers they manufacture.

With NSP, Intel hoped to create a platform for multimedia applications that would run on any
operating system, not just Windows. Microsoft thus viewed NSP as a serious threat to its
Windows monopoly. In order to extinguish NSP, Microsoft told Intel that it would make
Windows incompatible with Intel chips if Intel did not abandon the technology, and Microsoft
forced its OEM customers into a collective boycott of Intel’s microprocessor chips.38 Bill Gates
reported to other senior Microsoft executives, “Intel feels we have all the OEMs on hold with our
NSP chill.”
39 Intel ultimately ceded to Microsoft’s pressure and abandoned its NSP development

Shortly thereafter, Microsoft again put pressure on Intel. This time around, Microsoft
wanted Intel to stop assisting Sun Microsystems in the promotion of its Java technology. As Bill
Gates wrote in a 1997 email message,
“If Intel has a real problem with us supporting [Intel's microprocessor rival,
AMD] then they will have to stop supporting Java Multimedia the way they

As a district court subsequently found, Microsoft’s campaign to induce “Intel to stop
helping Sun create Java Multimedia APIs, especially ones that run well … on Windows”
was a
successful one.42

E. Microsoft’s Elimination Of Word Perfect

“If we own the key ‘franchises’ built on top of the operating system, we

dramatically widen the ‘moat’ that protects the operating system business…. We
hope to make a lot of money off these franchises, but even more important is that


they should protect our Windows royalty per PC.”
–Jeff Raikes, Microsoft President

“I have decided that we should not publish these [Windows 95 user interface]
extensions. We should wait until we have a way to do a high level of integration
that will be harder for likes of Notes, WordPerfect to achieve, and which will give
Office a real advantage…. We can’t compete with Lotus and WordPerfect/Novell
without this.”
–Bill Gates, Microsoft founder and then-CEO

Beginning in 1994, Microsoft launched an anticompetitive campaign to extinguish
WordPerfect, an office productivity application owned by Novell and competing with
Microsoft’s Office suite. Office productivity applications (including word processing,
spreadsheet, and presentation applications) are one of the most important groups of applications
and contribute substantially to the applications barrier to entry protecting Microsoft’s operating
system monopoly.

When Microsoft began this campaign, WordPerfect enjoyed widespread popularity. In
order to eliminate its competitor, Microsoft withheld crucial technical information about
Windows, going so far as to extend the Windows API, the set of commands a program uses to
communicate with the operating system, to ensure that WordPerfect did not work smoothly with
Microsoft’s monopoly operating system.45 Microsoft also used its monopoly power to control
industry standards, thus requiring WordPerfect to implement proprietary technology or risk
incompatibility with Windows.46 And it excluded WordPerfect from the major channels of
distribution for office productivity applications.47 For example, Microsoft forbade OEMs from
pre-installing Novell products and gave discounts for refusing to sell other developers’ office
productivity applications.48 As part of Microsoft’s strategy to eliminate Novell, “[a] top
Microsoft executive wrote that Microsoft should ‘smile’ at Novell, falsely signifying Microsoft’s
willingness to help the two companies’ common customers integrate their various products,


while actually ‘pulling the trigger’ and killing Novell.”
49 Microsoft’s tactics were, again,
extremely successful, as shown in the graphic below.50

Microsoft extinguished WordPerfect and gained a monopoly in office productivity application
suites, accomplishing its goal of “dramatically widen[ing] the moat” protecting its lucrative
Windows monopoly.

F. Microsoft’s Deceptive WISE Software Program

“Please give me one good reason why we should even consider [enabling
Microsoft technology to work on competing systems]. (Hint: any good answer
needs to include making more money and helping kill Unix, Sybase or Oracle.)”
–James Allchin, Microsoft Senior Vice-President

In 1994, Microsoft engaged in similarly deceptive conduct to combat the growing
popularity of the UNIX operating system within corporate networks. Microsoft faced a choice:
whether to “love it to death (invest a lot of money and kill it slowly) or ignore it (invest no
money on the expectation it will die quickly).”52 Microsoft chose initially “to invest in
interoperating” with UNIX,53 by promoting its Windows Interface Source Environment


(“WISE”), a program that purportedly allowed developers to write software to Windows APIs
and run the resulting programs on Macintosh and UNIX systems.54

Microsoft’s plan was successful. By 1996 Microsoft had captured a large share of the
corporate market. Microsoft then took the next step in its standard “embrace, extend,
extinguish” playbook and extended the Windows API without copying its changes to the WISE
program. This meant that developers could no longer smoothly port applications to UNIX and
Macintosh.55 In public, however, Microsoft continued to lead developers into believing that this
software was still fully cross-platform.56 In 1997, Bill Gates noted in an internal email that those
developers who wrote applications for the then-available software without realizing that it would
not port all APIs to UNIX and Macintosh were “just f*****.”57 He was right: Microsoft had
successfully extinguished the cross-platform threat to its operating system monopoly. In a
subsequent antitrust suit, a district court called this move “a classic ‘bait-and-switch’ tactic.”58

G. Microsoft’s Elimination Of Netscape

“Microsoft first proposed to Netscape that, rather than compete with each other, the two
companies should enter an illegal conspiracy to divide up the market. When Netscape
refused, Microsoft then used its Windows monopoly to, in Microsoft’s own words, ‘cut off
Netscape’s air supply.’”
–Joel Klein, Assistant Attorney General (quoting Paul Maritz, Microsoft’s then-Group Vice President of the Platform Applications Group)


In 1996, Microsoft began a series of steps to eliminate a threat to its operating system
monopoly from Netscape’s web browser. Web browsers are “middleware” products, meaning
that they expose APIs that developers can use in writing other applications. Microsoft
recognized that if developers began using the APIs in Netscape’s browser rather than the APIs in
Windows, consumers might eventually have access to the applications they needed from any
computer with Netscape’s browser installed and would not be locked into computers running

Microsoft first sought to deal with this threat through a direct market allocation proposal:
Microsoft told Netscape that if Netscape would agree to stop exposing APIs, Microsoft would
provide Netscape with special help in developing “value-added” software applications that relied
on Microsoft’s proprietary technologies.60 Netscape rejected Microsoft’s proposal.

Microsoft then responded by taking steps to “cut off Netscape’s air supply.”61 It
developed its own web browser, Internet Explorer, and then technologically and contractually
tied Internet Explorer to its monopoly Windows operating system.62 To ensure that only Internet
Explorer ran well on Windows, Microsoft designed Windows, as its then-Vice President Brad
Chase wrote, to make “running any other browser a jolting experience.”63 To ensure that
Internet Explorer had exclusive access to the primary browser distribution channels, Microsoft
also used an extensive set of exclusive-dealing contracts with OEMs, independent software
vendors (“ISVs”), Apple, and others.64

Microsoft was very aggressive in its campaign to shut Netscape out of all major
distribution channels. For example, when Apple resisted distributing Microsoft’s Internet
Explorer web browser with its Mac OS operating system, Microsoft threatened to stop supplying
Microsoft Office for Mac OS.65 As the district court found, “ninety percent of Mac OS users
running a suite of office productivity applications [used] Microsoft’s Mac Office. In 1997,
Apple’s business was in steep decline…. Had Microsoft announced in the midst of this
atmosphere that it was ceasing to develop new versions of Mac Office, a great number of ISVs,


customers, developers, and investors would have interpreted the announcement as Apple’s death

The importance of Office to Apple did not go unnoticed by Microsoft. As Microsoft’s
then-program manager for Windows, Ben Waldman, explained in an email to Bill Gates and
then-CFO Greg Maffei: “The threat to cancel Mac Office 97 is certainly the strongest
bargaining point we have, as doing so will do a great deal of harm to Apple immediately.”
67 Or,
as one Microsoft Vice President put it in an email to Ben Waldman, “MacOffice is the perfect
club to use”
to persuade Apple to “materially disadvantage[] Netscape.”68 Apple capitulated
and began pre-installing Internet Explorer as the default (and exclusive) browser on Mac
machines. Apple even agreed to push its own employees to use Internet Explorer.69

Once Microsoft had achieved wide distribution for its own browser through these tactics,
it then moved to “extend” (in effect, customize) industry standards for HyperText Markup
Language (“HTML”) and Cascading StyleSheets (“CSS”) to ensure that users would become
reliant on Microsoft’s own web browser.70 Microsoft also introduced its ActiveX technology
extensions, which allowed software written much like traditional computer programs to run in
the Internet Explorer browser, but that only worked on Microsoft’s monopoly operating

As shown in the graphic below, Microsoft’s campaign was highly successful.72


By 1998, Microsoft executives were confident that “the browser battle is close to over” and that
they had extinguished the threat to the Windows monopoly.73 As Kumar Mehta of Microsoft
explained, “We set out on this mission 2 years ago to not let [N]etscape dictate standards and
control the browser [APIs]. All evidence today says they don’t.”
74 This conduct was at the heart
of the 1998 suit against Microsoft by the DOJ and twenty U.S. States.75 The district court found
that Microsoft violated the antitrust laws in its conduct to maintain its operating system
monopoly against the threat posed by Netscape, and the D.C. Circuit affirmed this conclusion.76

Unfortunately, however, as discussed further below and as noted by several prominent
commentators, the U.S. browser case was settled with a consent decree that has been wholly
ineffective in restoring competition to the state that prevailed prior to Microsoft’s unlawful


H. Microsoft’s Attempts To Extinguish Java

“Kill cross-platform Java by grow[ing] the polluted Java market.”
–MicrosoftVJ98 SKUs and Pricing Proposal

“[W]e should just quietly grow j++ share and assume that people will take more
advantage of our classes without ever realizing they are building win32-only java

–Microsoft’s Thomas Reardon79

In 1996, Microsoft turned its attention to Sun Microsystems’ Java middleware
technologies as another nascent threat to its operating system monopoly.80 Sun Microsystems
was at the time promoting its Java technologies with the slogan,
“Write-once-run-anywhere” to
illustrate the cross-platform benefits of writing Java applications.81

Microsoft immediately recognized Java as middleware and moved to eliminate this
threat. As usual, Microsoft first embraced Java by licensing the technology from Sun
Microsystems and investing in building its own Java-related developer tools.82 Microsoft then


extended its Java developer tools with its own proprietary technology.83 In fact, Microsoft went
so far as actively to deceive Java developers into believing that the Microsoft Java tools were
platform independent.84 In an internal email, Microsoft software engineer Ben Slivka instructed
Microsoft’s Visual Studio team: “Don’t encourage new cross-platform Java classes; especially
don’t help get great Win32 implementations written/deployed. Do encourage fragmentation of
the Java classlib space….”

Microsoft also used exclusive agreements to promote its “polluted” version of Java and,
as noted above, Microsoft threatened Intel to stop Intel from supporting Sun Microsystems’ Java
standards.86 As the D.C. Circuit later explained, “Microsoft’s Paul Maritz told a senior Intel
executive that Intel’s [development of software that was compatible with] Sun’s Java standards
was as inimical to Microsoft as Microsoft’s support for non-Intel microprocessors would be to
Intel…. Microsoft threatened Intel that if it did not stop aiding Sun on the multimedia front, then
Microsoft would refuse to distribute Intel technologies bundled with Windows.”
87 Intel
capitulated, and dropped its support for Java.

Microsoft’s overall plan to neutralize Java as a middleware threat was extremely
successful.88 As the Fourth Circuit explained in a subsequent private suit brought by Sun

First, Microsoft “embraced” the Java technology by licensing from Sun the right
to use its Java Technology to develop and distribute compatible Products.
Second, Microsoft “extended” the Java platform by developing strategic
incompatibilities into its Java runtime and development tools products…. Third,
Microsoft used its distribution channels to flood the market with its version of the
Java Technology in [what Sun characterized as] an attempt to “hijack the Java
Technology and transform it into a Microsoft proprietary programming and
runtime environment.”


I. Microsoft’s Elimination Of Rival Media Players

RealNetworks “is like Netscape. The only difference is we have a chance to start
this battle earlier in the game.”
–Robert Muglia, Microsoft Senior Vice-President

In 1997, Microsoft recognized that media players also represented a nascent threat to its
profitable operating system monopoly. Like web browsers, media players are middleware
products that expose APIs to software developers.91 Fearing that media players might come to
support multimedia applications on any operating system, Microsoft took action to eliminate the

Consistent with its previous tactics, Microsoft first embraced the leading media player
software, designed by RealNetworks, announcing an agreement to collaborate in streaming
media.92 The agreement encouraged RealNetworks to make its media player
Windows-dependent in return for compensation from Microsoft.93 As Robert Muglia informed
RealNetworks’ Chief Operating Officer, “anyone who competed against [Microsoft] in the
operating system ‘lost.’”
94 When RealNetworks continued to compete against Microsoft,95
however, Microsoft became increasingly aggressive in its actions. In particular, as it had done
with the browser, Microsoft tied its own media player to Windows.96

RealPlayer was, however, not the only multimedia threat to Microsoft. Microsoft took
separate action to eliminate another competitor in the multimedia space, Burst.com, Inc.


(“Burst”), a developer of video delivery software.97 And, in 1997, Microsoft targeted Apple’s
QuickTime media authoring software, another threat to Microsoft’s operating system monopoly.
Like RealNetworks’ multimedia player, Apple’s multimedia technology ran on several platforms
and exposed APIs to content developers.98 Microsoft saw the Apple product as a particularly
serious threat to the applications barrier to entry in light of Apple’s expertise in the operating
system market.99 Microsoft thus reverted to its standard playbook, first attempting to allocate the
market with Apple by offering not to enter the authoring business if Apple stopped developing a
Windows 95 version of QuickTime.100 When Apple refused to participate in Microsoft’s illegal
scheme, Microsoft threatened to make its products incompatible with Apple’s products if Apple
did not abort its work on its new QuickTime product.101 As one senior Microsoft executive told
Apple, if Apple wanted to survive in the broader multimedia software market, it would have to
“knife the baby” by killing its own multimedia offering.102 Again, Apple refused Microsoft’s

When Microsoft first began bundling Windows Media Player with its monopoly
operating system, Microsoft also released a version of its media player for Apple’s Mac
operating system. During the period when Windows Media Player was competing with
RealPlayer and Apple QuickTime, Microsoft frequently released new versions of its product for
the Mac. By 2003, however, Microsoft had gained the upper hand, capturing more users than


RealNetworks and Apple.104 After 2003, Microsoft never released another Mac version of its
media player.105 Instead, Microsoft continued to promise that it would release a new Mac
version of Media Player until 2006, when it announced that it was terminating the project.106

J. Microsoft’s Campaign Against Rival Server Operating Systems

“Sun, Oracle and Netscape are all pushing a new model of [almost] centralized
computing. They all acknowledge that Microsoft holds tremendous sway over the
desktop platform, so they all want to quickly strip as much value and spending as
possible off the desktop and onto the server where they can charge premium

prices and push their own platform offerings.”
–Aaron Contorer, Microsoft C++ General Manager

What we are trying to do is use our server control to do new protocols and lock
out Sun and Oracle specifically”
— Bill Gates, Microsoft

In the mid to late 1990s, computer networks were growing in speed and Microsoft sensed
a threat to its core operating system monopoly from more centralized, server-based computing.
Determined to head off any potential competition, Microsoft decided that it needed to add server
operating systems to the “moat” surrounding its Windows operating system monopoly.109 To
gain inroads into this market, Microsoft embraced industry standards for file-and-print sharing,
user management, and identity verification so that its products would be compatible with the
then-prominent Unix server operating systems.110But as Microsoft’s server systems started to
gain a foothold in the market, Microsoft quietly started to “extend” support for industry standard
protocols in its Windows operating system so that Windows clients would have a better
experience when connected to Microsoft’s servers.111 Eventually, by changing its Windows
personal computer operating system so that Windows computers could not fully connect to any
server that did not use Microsoft’s proprietary extensions unless the users installed special


software on their machines, Microsoft established and reinforced its dominance in the work
group server operating system market,112 where Microsoft maintains a share of approximately

Microsoft’s conduct eventually drew scrutiny from the European Commission, which
condemned Microsoft’s refusal to release information that would allow other server operating
systems to connect to personal computers running Microsoft’s Windows operating system.114 In
a 2004 decision, the European Commission found that if Microsoft succeeded in eliminating
other server operating systems as competitive threats, then innovation would be severely
limited.115 And, in fact, after releasing Windows Server 2003 to lukewarm reviews,116 Microsoft
failed to release a new server version of Windows until 2008.117 Even then, many reviewers
noted that, despite aggressive marketing to small- and midsize-business users and a special
edition of the server operating system just for these users, Microsoft had done very little to
address their needs, and instead had essentially re-packaged a scaled-down version of an existing
enterprise-level product.118


Despite international scrutiny of Microsoft’s anticompetitive conduct, Microsoft has
continued to take similar unlawful actions to eliminate potential competitive threats. The only
real difference between Microsoft’s more recent practices and its earlier ones is that, as Mr.
Gates predicted, Microsoft has now changed its document retention practices.119


A. Microsoft’s Failure To Comply With The Final Judgment

In 2003, the DOJ discovered that Microsoft had built a feature into Windows that
invoked Microsoft’s Internet Explorer browser, rather than the user’s chosen default browser,
contrary to the clear obligations of the Final Judgment.120 Similarly, in 2004, Microsoft
attempted to require licensees of its middleware offering, the .NET Framework, to obtain
Microsoft’s prior consent before publishing any benchmark testing results for the software.121 In
2005, Microsoft demanded that manufacturers of portable music players sign exclusive deals if
they wanted integration with Microsoft’s Windows Media Player.122 And in 2007, Microsoft
made changes to allow consumers limited choice of desktop search products in Windows Vista
only following an extensive government investigation and pressure from a number of U.S.
States. While Microsoft eventually made changes to its conduct in each of these instances, these
incidents all demonstrate Microsoft’s willingness to use its monopoly products aggressively first
and make changes later only when confronted about its behavior. This is particularly striking
coming, as it does, within the very limited range of issues covered by the Final Judgment.123 In
fact, the district court overseeing the Final Judgment extended the decree for two more years, to
November 12, 2009, because Microsoft still has not come into compliance with its obligations
regarding communications protocols.124


Even today, with its obligations under the consent decree nearing an end, Microsoft has
begun testing the waters and taking more aggressive actions to limit the pre-installation of
competing software by OEMs. For example, in 2008 Microsoft announced that it would
introduce a series of diagnostic tests and requirements for any non-Microsoft software that
OEMs wished to preinstall (Microsoft’s own equivalent software was not subject to the tests).125
Microsoft further announced that marketing dollars it typically granted to OEMs would be linked
to compliance with the tests.126 This announcement obviously created serious concerns among
OEMs, ISVs, and consumer advocates. Among other things, Microsoft’s announcement meant
that it would gain early access to competing software, and the new program would give
Microsoft an easy tool to keep competing middleware products (for example, browsers and
media players) from being distributed by OEMs. Steven Houck, counsel to the California Group
of plaintiffs, told the U.S. district court at a January 2009 status conference that: “[I]n the six
plus years that we’ve been enforcing the decree, this particular issue is one in which we’ve
gotten the most number of complaints and heard the most anxiety about what Microsoft is
doing.”127 In light of Microsoft’s history of anticompetitive conduct, it is perhaps not surprising
that, with just a few months of U.S. regulatory oversight remaining, Microsoft has once again
begun to ratchet up its anticompetitive tactics.

B. Microsoft’s Campaign of Patent FUD against Linux and Open Source

“This is not a case of some accidental, unknowing infringement. There is an
overwhelming number of patents being infringed.”
— Microsoft General Counsel and Intellectual Property and Licensing Vice

President Horacio Gutierrez 128

The open source Linux operating system is the principal rival to Microsoft Windows.
Linux has been taken up by both corporate customers and, increasingly, by private individuals


for home use (e.g., with netbooks). In a recent interview with CNET, Steve Ballmer identified
Linux as one of the top two competitive threats to Microsoft in the enterprise segment.129

Consistent with its behavior in response to other competitive threats, Microsoft has used
unfair and anti-competitive tactics to try and slow the uptake of Linux. In particular, Microsoft
has made and continues to make broad, unsubstantiated claims that software developers
distributing Linux or other open source software, as well as their customers, are infringing
Microsoft’s patents.130 However, although Microsoft has claimed that as many as 235 patents
may have been infringed131, it has consistently failed to identify which patents are at issue.

Microsoft’s tactic is to spread fear, uncertainty and doubt (“FUD”) as to whether
developers and users of open source software may be the target of future patent infringement
suits, and thereby chill consumer enthusiasm and demand for Linux and open source solutions.
Indeed, Microsoft’s unwarranted threats have brought such pressure to bear on Linux users that
some have felt compelled to enter into royalty-bearing patent licenses with Microsoft.132
Microsoft’s campaign of FUD effectively works to impose a “tax” on the use of the most viable
alternative software to Windows: faced with an intimidating and powerful potential litigant
known for its hardball tactics, Linux users are driven to pay the licensing fee despite the
speculative nature of the IP claims. Microsoft’s bullying tactics therefore raise the overall cost
and slow down market penetration by innovative technologies intended to compete with
Microsoft’s monopoly products.

Moreover, there is a strong likelihood that Microsoft’s patent FUD campaign may be
unfounded in law. Recent U.S. jurisprudence clarifies that the scope for patenting business
methods, which lie at the heart of many software patents, is much narrower than was previously
thought to be the case.133 In addition, one of the thresholds for patentability that an invention is
not obvious to a person skilled in the art has recently become harder to meet.134 As such, many
of the patents held by Microsoft are likely to be of questionable validity today. Furthermore,
given the myriad of software patents in existence, consumers may often be unable to determine
with certainty whether their use or distribution of certain software products actually infringes
another company’s IP rights. Therefore, contrary to the broad and categorical statements of Mr.
Gutierrez as to the intentional nature of any alleged patent infringements, it is widely recognized
in the industry that, regardless of whether proprietary or open source software is used, there is a


high likelihood that patent infringements will have been committed inadvertently. Microsoft has
sought to exploit the current absence of clarity in patent law in order to deter consumers from
taking up offerings competing with Microsoft’s own products.

In an apparent escalation of its patent FUD strategy, Microsoft sued the navigational
system vendor, TomTom, for patent infringement at the end of February 2009. Three patent
claims related to Linux are included in the lawsuit.135 At least two of them are related to highly
questionable patents on long file name support in Windows, which have been partially
invalidated by an EC patent court on the grounds that Microsoft’s patent claims were “not based
on inventive activity”.136 While Microsoft has publicly claimed that its action is not directed
against Linux or open source, and the case was settled in March 2009 pursuant to a mostly-confidential agreement, this represents an aggressive development of Microsoft’s use of spurious
or highly questionable patent claims to intimidate and eliminate competition from Linux in order
to maintain or strengthen its dominant position in the OS market.

C. Microsoft’s Ongoing Misconduct Has Sparked Further European

Commission Investigations

As noted at the outset, the European Commission (“EC”) is also investigating ongoing
misconduct by Microsoft, culminating in its issuance of a Statement of Objections to Microsoft
on January 15, 2009, concerning the tying of the Internet Explorer web browser to the Windows
operating system.137 In addition, the EC continues to investigate a number of other actions
Microsoft has taken to tie products to Windows as well as Microsoft’s refusal to enable
interoperability with certain of its monopoly technologies, including Sharepoint, Outlook,
Exchange, and Office.138 The EC is also investigating Microsoft’s actions to manipulate the vote
of the International Organization for Standardization / International Electrotechnical
Commission on the recent standardization of Office “Open” XML (“OOXML”). As reported
widely in the press and on the Internet, Microsoft’s manipulation of the standards setting process
in favor of OOXML included financial inducements, threats, misleading information, and
committee-stuffing.139 These investigations are compelling examples of Microsoft’s continued
misconduct related to its monopolies in operating systems and other products.



Although Microsoft has repeatedly promised to support open standards, both with its
recent “Interoperability Principles”140 and its announcements for Internet Explorer 8,141
Microsoft has routinely made similar promises of standards support in the past without fulfilling
them.142 As a result, many observers have greeted Microsoft’s various announcements and
orchestrated fanfare with skepticism. For example, following one recent Microsoft
interoperability announcement, the European Commission released a short statement noting that
Microsoft’s promise of interoperability followed “at least four similar statements by Microsoft in
the past on the importance of interoperability.”143 As the Commission observed, it took
Microsoft three years even to approach releasing the amount of interoperability information the
European Court of First Instance had ordered it to release.144

Even when Microsoft claims to be implementing a standard, the reality is that Microsoft’s
implementations routinely either only partially conform or else somehow extend the standard, so
that software developed to work with Microsoft’s version of the standard will not work with
other vendors’ implementations of the same standard. As just one example, Microsoft recently
announced that Internet Explorer 8 would support a feature called “local storage,” which allows
websites to store a limited amount of data on users’ computers so that users can interact with
those sites offline, a feature that could help web applications become effective replacements for
traditional desktop applications.145 This feature is part of HTML 5, the next version of the


HTML standard used for writing web pages.146 Unfortunately, Microsoft’s implementation is
subtly incompatible with the standard, which could lead web developers who test their sites in
Internet Explorer 8 to write their sites in a way that will not work in other browsers.147 Other,
earlier examples of this conduct include Microsoft’s approach to the Windows graphical user
interface (discussed in section II.A) and Microsoft’s approach to Java developer tools (discussed
in section II.H). Again, these are just a few examples of Microsoft’s hollow interoperability
promises. Microsoft’s history clearly demonstrates its longstanding practice of making one set
of statements about interoperability in public and then implementing a wholly different approach
to interoperability in practice.


Microsoft’s conduct has allowed it to protect its monopolies, which has led to a lack of
choice, higher prices, and less innovation than would otherwise have prevailed in a competitive
marketplace. The barriers to entry surrounding Microsoft’s core monopolies remain very high,
and Microsoft’s market shares and profit margins in desktop operating systems, office
productivity suites, and browsers have continued to reflect its overwhelming monopoly power in
these markets.148 In short, Microsoft’s misconduct has harmed and continues to harm consumers

A. Microsoft’s Operating System Monopoly Has Harmed Consumers

For fifteen years, Microsoft’s share of desktop operating systems has remained above 90%. 149

In 2002, when the Final Judgment in United States v. Microsoft was entered, Windows
XP was the most common desktop operating system.150 Microsoft did not release a successor to
Windows XP until 2007, when it released Windows Vista.151 Even then, the “Vista” that


Microsoft released lacked the most significant features that Microsoft had initially promised, and
reviewers labeled it as little more than an incremental improvement.152 CNet News, a leading
computer industry publication, ranked Microsoft’s Windows Vista in its “Top Ten Terrible Tech
Products.”153 Even Microsoft recognizes that its stronghold on operating systems has harmed

The Windows API is … so deeply embedded in the source code of many Windows
apps that there is a huge switching cost to using a different operating system
instead. … It is this switching cost that has given customers the patience to stick
with Windows through all our mistakes, our buggy drivers, our high TCO, our
lack of a sexy vision at times, and many other difficulties… Customers constantly
evaluate other desktop platforms, [but] it would be so much work to move over
that they hope we just improve Windows rather than force them to move. In short,
without this exclusive franchise called the Windows API, we would have been
dead a long time ago.

Microsoft’s tactics to prolong its operating system monopoly through means other than
competition on the merits go hand-in-hand with its admitted lack of innovation.

B. Microsoft’s Office Monopoly Has Harmed Consumers

Microsoft’s Office suite likewise maintains a 95% market share.155 The standard Office
suite includes Word (word processing software), Excel (spreadsheets), PowerPoint


(presentations), and Outlook (desktop email client),156 all of which are the de facto standards in
their respective categories.157 Microsoft has more than 500 million Office users.158 The business
division at Microsoft, which includes Office, operated on a profit margin of 65% and brought in
almost $19 billion in revenue in 2008.159

Microsoft’s monopoly power in office productivity applications has, likewise, bred
complacency that is harmful to consumers. Even Microsoft’s founder and former Chief Software
Architect, Bill Gates, asserts that the only real competitive pressure on Microsoft to improve
Office today is that consumers might not upgrade to the next version.160 Between 1997 and
2007, Microsoft released only three new versions of Microsoft Office, a very slow pace by
software industry standards, and reviewers noted that each release offered only small
improvements over the previous ones.161 It was not until 2007, with the advent of competing


online office productivity applications,162 that Microsoft redesigned the Office user interface and,
not coincidentally, introduced new, incompatible file formats.163

C. Microsoft’s Web Browser Monopoly Has Harmed Consumers

For the past decade, Microsoft has maintained a dominant share in the web browser
market.164 Since Microsoft’s success in exterminating Netscape, however, it has invested little in
developing its Internet Explorer web browser. During Microsoft’s push to destroy Netscape, it
released four major new versions of Internet Explorer in two years.165 But after it successfully
excluded Netscape from the market, Microsoft slowed browser development, releasing only two
new versions between 1998 and 2001, neither of which was a major upgrade.166 After 2001,


Microsoft “effectively disbanded the Internet Explorer group after killing Netscape.”167
Microsoft did not introduce a new version of Internet Explorer for Windows until 2006, and even
then reviewers labeled the new version as an underwhelming catch-up release.168 One of
Microsoft’s .NET program managers acknowledged that “[i]t simply doesn’t make business
sense for Microsoft to invest in a technology that d[is]intermediates [its] most popular platform,
the Windows operating system.”
169 As one analyst summarized the issue:

The Web browser is probably the most frequently used category of software in the
world. But in recent years, the browser most people rely on–Microsoft’s Internet
Explorer–has been stagnant, offering very few new features.

This is a common pattern with Microsoft. The company is aggressive about
improving its software when it first enters a market. But once it crushes its
competitors and establishes an effective monopoly, as it has in Web browsers,
Microsoft seems to switch off significant innovation.

Yet despite Microsoft’s lack of innovation in the browser market, it has been able to
maintain its enormous market share.171 Even strikingly superior web browsers like Opera and
Mozilla’s Firefox have had great difficulty in gaining widespread adoption. After having been


starved of innovation by Microsoft for years, technology-savvy jumped at the chance to adopt
Firefox upon its release, and reviewers generally identify Firefox (and other browsers including
Opera) as far superior to Internet Explorer.172 Yet, despite their superiority, no major OEM has
ever distributed any of these alternative, innovative browsers.173 Thus, while IE is guaranteed
ubiquity as a result of Microsoft’s tying practice, rival browsers face high barriers to entry even
if they are technically superior. Beyond their popularity with a limited set of sophisticated
consumers, alternative browsers have not been able to make significant inroads.174 This means
that most consumers have gone without features like tabbed browsing and improved security
features for years longer than they would have done in a competitive marketplace.175
Microsoft’s persistently high market share despite its noticeably inferior product is proof that
OEMs are not selecting web browsers based on consumer demand.

Microsoft’s anticompetitive conduct in the browser market has also firmly entrenched
Internet Explorer as the super-dominant web browser in the workplace. Among other things,
during the years after Microsoft exterminated Netscape and before Firefox came on the scene,
many corporate information technology departments built applications and company intranets on


top of proprietary Microsoft technologies in Internet Explorer. These companies would face
significant barriers to switching to a different browser today.176


Microsoft’s conduct over the last two decades has demonstrated Microsoft’s willingness
and ability to engage in unlawful conduct to protect and extend its core monopolies. This
conduct has caused real harm to consumers, who continue to pay high prices and use lower
quality products than would have prevailed in a competitive market. By understanding
Microsoft’s history of anticompetitive conduct, developers, consumer groups, and government
authorities will be better equipped to recognize current and future Microsoft misconduct at an
early stage and intervene to prevent Microsoft from using tactics other than competition on the
merits. ECIS remains hopeful that the European Commission’s latest Statement of Objections
addressing Microsoft’s misconduct will finally mark the beginning of the end of Microsoft’s two
decades of anticompetitive behavior and consumer harm.


Press Release, European Commission, Antitrust: Commission Confirms Sending a Statement of Objections to
Microsoft on the Tying of Internet Explorer to Windows (Jan. 17, 2009), available at


For a similar view by Microsoft’s only significant rival in the browser market, see Mitchell Baker, Chairperson,
Mozilla Foundation, The European Commission and Microsoft, Mitchell’s Blog, Feb. 6, 2009,


06/the-european-commission-and-microsoft/ (reflecting on the EC’s
most recent Statement of Objections and noting that “Microsoft’s business practices have fundamentally
diminished (in fact, came very close to eliminating) competition, choice and innovation in how people access
the Internet”).

Government Exhibit 940, Handwritten Notes of Intel’s Steven McGeady, United States v. Microsoft, 87 F.
Supp. 2d 30 (D.D.C. 2000) (No. 98-1232),available at http://www.usdoj.gov/atr/cases/exhibits/940.pdf; see
Transcript of the Direct Examination of Intel’s Steven McGeady, Nov. 10, 1998, at 18:820:6, United
States v. Microsoft
, 87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232), available at http://cyber.law.harvard.edu/
msdoj/trial.html (“November 10, a.m.” link) (testifying that Mr. Gates further indicated the one thing Microsoft
might change was its document retention policies).

See United States v. Microsoft Corp., 253 F.3d 34, 54-58 (D.C. Cir. 2001); see also Competition on the Internet:
Hearing of the House Competition Policy and Antirust Laws Task Force of the House Judiciary Committee,
110th Cong. 49 (2008) (remarks of Bradford L. Smith, Senior Vice President, General Counsel and Corporate
Secretary, Microsoft Corporation) (acknowledging that as of July 2008, “we know that we have a dominant
position, for example, in the market for personal computer operating systems”).

See Microsoft Corp., Annual Report (Form 10-K), at 20, 23, 26 (Jul. 31, 2008), available at



See id. at 23, 26.

United States v. Microsoft Corp., 253 F.3d 34, 55 (D.C. Cir. 2001) (internal citations omitted).

Novell, Inc. v. Microsoft Corp., No. JFM-05-1087, 2005 U.S. Dist. LEXIS 11520, at *6 (D. Md. June 10, 2005)
(quoting email from Jeff Raikes at Microsoft to Warren Buffet at Berkshire Hathaway (Aug. 17, 1997)).

United States v. Microsoft Corp., 253 F.3d 34, 53 (D.C. Cir. 2001) (“If middleware were written for multiple
operating systems, its impact could be even greater…. Ultimately, if developers could write applications relying
exclusively on APIs exposed by middleware, their applications would run on any operating system on which the
middleware was also present.”).

Consolidated Statement of Facts in Support of Its Responses to Motions for Summary Judgment by Microsoft
Corporation ¶ 246, Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295 (D. Utah 1999) (No. 2:96-CV-645 B).

Id. ¶ 251.

See Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295, 1298 (D. Utah 1999). The disk operating system
was one of the earliest operating systems developed for computers, controlling the computer’s interaction with
other software through a command-based standard. See id. at 1297.

See Jon Pepper, Like MS-DOS, Only Better, SOFTWARE MAG., Oct. 1990, http://findarticles.com/p/articles/

See Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295, 1298 (D. Utah 1999).
See id.

See id.

See id. at 1303.

See Direct Examination of Steven McGeady, Vice President of Intel, at 5354, United States v. Microsoft Corp.,
87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232), available at


msdoj/transcripts/1109b.doc (testifying that a Microsoft executive used the phrase
“embrace, extend and extinguish” in a 1995 meeting to describe Microsoft’s strategies towards its competitors).

See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 7475 (D.C. Cir. 2001) (“Microsoft, too, agreed to
promote the Java technologies–or so it seemed…. Microsoft made a large investment of engineering resources
to develop a high-performance [Java implementation].” (internal quotations omitted)).

See Findings of Fact ¶¶ 38790, United States v. Microsoft Corp., 84 F. Supp. 2d 9 (D.D.C. 1999) (98-1232)
[hereinafter "Findings of Fact"], available at http://
www.usdoj.gov/atr/cases/f3800/msjudge.pdf. Microsoft’s
Thomas Reardon urged, “[W]e should just quietly grow j++ [Microsoft’s [Java] developer tool] share and
assume that people will take more advantage of our classes without ever realizing they are building win32-only
java app[lication]s.” Id. ¶ 394.

See id. ¶ 390 (“Far from being the unintended consequence of an attempt to help Java developers more easily
develop high-performing applications, incompatibility was the intended result of Microsoft’s efforts.”).

Graham Lea, Unsealed Caldera Documents Expose MS’ DR-DOS Moves, THE REGISTER UK, May 24, 1999,



See Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295, 1303 (D. Utah 1999). Internal discussions at
Microsoft revealed a strategy to make Windows 3.1 incompatible with DR-DOS. Id. at 1313 (citing an email in
which two Microsoft top executives instructed employees to “make sure [DR-DOS] has problems in the

See id. at 1311. Microsoft included a “Readme” text file in Windows 3.1 that stated that “running Microsoft
Windows 3.1 with an operating system other than MS-DOS could cause unexpected results or poor
performance.” Kenneth C. Baseman, Frederick R. Warren-Boulton, and Glenn A. Woroch, Microsoft Plays
Hardball: The Use of Exclusionary Pricing and Technical Incompatibility to Maintain Monopoly Power in
Markets for Operating System Software
, ANTITRUST BULL., Summer 1995, at 13, available at
http://elsa.berkeley.edu/~woroch/hardball.pdf; see also Andrew Schulman, The Caldera v. Microsoft Dossier,
O’REILLY NETWORK, Feb. 7, 2000,


(Microsoft “allegedly leveraged its Windows monopoly to crush” DR-DOS by “including intentionally
misleading product pre-announcements, vaporware and FUD (‘fear, uncertainty, and doubt’) announcements,
exclusionary licensing, beta-test blacklists, building deliberate incompatibilities into Windows to hinder it from
running with DR-DOS, and trying to create the misperception that DR-DOS couldn’t work properly with

Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295, 1303 (D. Utah 1999). For example, Microsoft
executives began conducting interviews with trade press to highlight the issue. Microsoft Vice President Brad
Silverberg asked rhetorically in one interview: “Why take the risk with all the compatibility problems that DR-
DOS has had?” See Consolidated Statement of Facts in Support of Its Responses to Motions for Summary
Judgment by Microsoft Corporation ¶ 383, Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295 (D. Utah
1999) (No. 2:96-CV-645 B).

See Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295, 1304 (D. Utah 1999). Caldera, the owner of DR-DOS, filed suit against Microsoft in 1996 and, after the district court denied Microsoft’s motions for summary
judgment, Microsoft settled the case for an undisclosed amount. See Andrew Schulman, The Caldera v.
Microsoft Dossier
, O’REILLY NETWORK, Feb. 7, 2000,



Dan Goodin, Microsoft Defends DOS Licensing, CNET NEWS, May 27, 1999, http://www.news.com/2100-1001-226467.html.

See United States v. Microsoft Corp., 56 F.3d 1448, 1451 (D.C. Cir. 1995); Complaint ¶ 26, United States v.
Microsoft Corp
., No. 94-1564 (D.D.C. July 15, 1994), available at


See Final Judgment, United States v. Microsoft Corp., No. 94-1564, 1995 U.S. Dist. LEXIS 20533, at *8
(D.D.C. Aug. 21, 1995), available at
http://www.usdoj.gov/atr/cases/f0000/0047.htm. Section § IV(C) of the
court’s order prohibits Microsoft from entering into per processor licenses. Id.

See United States v. Microsoft Corp., 56 F.3d 1448, 145152 (D.C. Cir. 1995); Complaint ¶ 36(b)-(c), United
States v. Microsoft Corp
., No. 94-1564 (D.D.C. July 15, 1994), available at
http://www.usdoj.gov/atr/cases/f0000/0046.htm (describing how these licensing practices deprived competitors
of sales).

Reply Brief of Petitioner United States of America at 5, United States v. Microsoft Corp., 147 F.3d 935 (D.C.
Cir. 1998) (No. 94-1564), available at http://www.usdoj.gov/

Findings of Fact, supra note 20, ¶ 126.

See id. ¶ 116. Microsoft refused to license Windows 95 to IBM under the guise of an audit of IBM’s past
royalty payments. Id. ¶ 122. Joachim Kempin, Microsoft’s executive in charge of sales to OEMs, offered to
close the audit if IBM agreed not to bundle its office productivity suite with its PCs. Id. ¶ 124. IBM refused
and it was not granted a license to pre-install Windows 95 until fifteen minutes before the start of Microsoft’s
official product launch. Id. ¶ 125.

Id. ¶ 126.

Id. ¶ 128.

See Press Release, Microsoft, Microsoft and IBM Resolve Antitrust Issues (July 1, 2005), available at



Government Exhibit 276, Email from Bill Gates, United States v. Microsoft, 87 F. Supp. 2d 30 (D.D.C. 2000)
(No. 98-1232), available at http://www.usdoj.gov/atr/

See Findings of Fact, supra note 20, ¶¶ 10102.

Id. ¶ 103.

See id. ¶ 101. Microsoft’s leverage over the OEMs forced Intel to abandon its software development ambitions.
In relating the success of the OEM boycott to Microsoft executives, Gates added, “we should let OEMs know
that some of the new software work Intel is doing is OK. If Intel is not sticking totally to its part of the deal let
me know.” Id. ¶ 103.

Id. ¶ 406.

See id. ¶ 406.

Novell, Inc. v. Microsoft Corp., No. JFM-05-1087, 2005 U.S. Dist. LEXIS 11520, at *6 (D. Md. June 10, 2005)
(quoting email from Jeff Raikes at Microsoft to Warren Buffet at Berkshire Hathaway (Aug. 17, 1997)).

Transcript of the Deposition of Microsoft Chairman Bill Gates, Sept. 2, 1998 at 662:7-13, United States v.
Microsoft Corp
., 87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232), available at


wp-srv/business/longterm/microsoft/documents/gates0902p4.htm; see also
Dave Methvin, Novell Hasn’t Forgotten Microsoft’s Jab At WordPerfect, INFO. WK., Mar. 19, 2008,



See Complaint ¶¶ 56, 6972, Novell, Inc. v. Microsoft Corp., No. JFM-05-1087, 2005 U.S. Dist. LEXIS 11520
(D. Md. June 10, 2005).

See id. ¶¶ 8494.

See id. ¶ 112.

See id. ¶ 117.

See id. ¶ 55.

Fred Vogelstein, Search and Destroy, FORTUNE, May 2, 2005, at 74, available at


02/8258478/index.htm (showing
“Microsoft’s Battles” market share graphics). In 1993, WordPerfect accounted for more than 40% of word
processing software sales, with annual sales of $700 million. See Complaint ¶ 150, Novell, Inc. v. Microsoft
., No. JFM-05-1087, 2005 U.S. Dist. LEXIS 11520 (D. Md. June 10, 2005). By 1996, WordPerfect’s
share of sales had dropped to less than 10%, with annual sales of only $200 million. See id.

Steve Lohr, In an Antitrust Suit, a Tiny Ex-Partner Is Taking Aim at Microsoft, N.Y. TIMES, May 31, 1999,



Case COMP/C-3/37.792 Microsoft, Commission Decision Mar. 24, 2004, ¶ 575, available at


antitrust/cases/decisions/37792/en.pdf (citing Microsoft internal e-mail
from Mark Ryland to Jim Allchin, dated April 18, 1996) [hereinafter "EC Decision"].


See Bristol Tech., Inc. v. Microsoft Corp., 114 F. Supp. 2d 59, 6465 (D. Conn. 2000); John Lettice, How
Microsoft Used the WISE Trojan Horse Against Unix
, THE REGISTER, July 18, 1999,


analysis_how_ms_used/ (“Microsoft had originally identified WISE as
a mechanism which would help it get [Windows] NT established in corporate networks. In the early days of the
OS Microsoft needed to accept that there would be co-existence (NT’s market share was then vanishingly
small), so WISE was useful. It also acted as a mechanism for controlling that coexistence. Microsoft then saw
Sun-backed efforts such as WABI and PWI as real threats that could wrest control of Windows APIs from it, so
it favoured WISE as an ‘official,’ controllable version.”).

See Bristol Tech., Inc. v. Microsoft Corp., 114 F. Supp. 2d 59, 7374 (D. Conn. 2000). Internal Microsoft
communications explained that “[t]he risk of going cross-platform with our server technology” i.e., permitting
developers to port application seamlessly between Windows NT and UNIX or Macintosh “is that we might
undermine the market for NT.” Id. at 71.

See id. at 7274. Although Microsoft had internally decided to limit the software source code, in 1996 Bill
Gates delivered a keynote address at the UNIX Expo meant to ensure confidence in the WISE program and
stressing that the WISE developers had the “very latest Windows API technology.” Id. at 73.

Id. at 74.

Id. at 83. This judgment was later vacated after the parties settled and Microsoft paid an undisclosed sum.
Microsoft Corp. v. Bristol Tech., Inc., 250 F.3d 152, 15354 (2d Cir. 2001) (noting that the settlement
agreement was reached in part with Bristol’s promise that it would not oppose Microsoft’s motion to vacate the
district court’s order).

Press Release, Department of Justice, Statement by Assistant Attorney General Joel I. Klein: Filing of Antitrust
Suit Against Microsoft at 2 (May 18, 1998), available at


1998/1770.htm; see also Plaintiffs’ Joint Proposed Findings of
Fact ¶ 91.3.1, United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232), available at


cases/f2600/2613-1.htm [hereinafter "Plaintiffs' Joint Proposed Findings of Fact"].

See Findings of Fact, supra note 20, ¶¶ 8183. At a meeting between Microsoft and Netscape executives,
Microsoft made it clear that if Netscape attempted to expose its own APIs rather than build off of Microsoft’s
platform, “Microsoft would view Netscape as a competitor, not a partner.” Id. ¶ 83.

Plaintiffs’ Joint Proposed Findings of Fact, supra note 49, ¶ 91.3.1, United States v. Microsoft Corp., 87 F.
Supp. 2d 30 (D.D.C. 2000) (No. 98-1232), available at http://www.usdoj.gov/atr/

See United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001).

Findings of Fact, supra note 20, ¶ 160. Microsoft did this by placing code specific to web browsing in the same
files as code that provided operating system functionality. Id. ¶ 161. The district court found that “Microsoft’s
primary motivation for this action was to ensure that the deletion of any file containing browser-specific
routines would also delete vital operating system routines and thus cripple Windows 95.” Id. ¶ 164.

The district court found that “no other distribution channel for browsing software even approaches the
efficiency of OEM pre-installation and IAP bundling.” Id. ¶ 145. Microsoft, with the exception of a few
months in 1997, never allowed OEMs to ship Windows 95 or Windows 98 without Internet Explorer. Id. ¶ 202.
By 1998, Netscape was only being shipped on four of the sixty OEM sub-channels. Id. ¶ 239.

See id. ¶¶ 34151.

Id. ¶ 344.

Id. ¶ 346.

Government Exhibit 268, Email from Don Bradford, United States v. Microsoft Corp., 87 F. Supp. 2d 30
(D.D.C. 2000) (No. 98-1232), available at http://

Findings of Fact, supra note 20, ¶ 352.

See Paul Festa, IE 5.5 Angers Web Standards Advocates, CNET NEWS, July 13, 2000,


See Java Gets a Run for Its Money, CNET NEWS, Mar. 12, 1996, http://www.news.com/2100-1023-

Fred Vogelstein, Search and Destroy, FORTUNE, May 2, 2005, at 74, available at


fortune/fortune_archive/2005/05/02/8258478/index.htm (showing
“Microsoft’s Battles” market share graphics).

Findings of Fact, supra note 20, ¶ 377.

Id. ¶ 377.

See United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001). It also served as the basis for a private
lawsuit brought by AOL Time Warner, Netscape’s parent company, which Microsoft settled for $750 million.
See Press Release, Microsoft Corp., AOL Time Warner and Microsoft Agree to Collaborate on Digital Media
Initiatives and Settle Pending Litigation (May 29, 2003), available at



See United States v. Microsoft Corp., 87 F. Supp. 2d 30, 3751 (D.D.C. 2000); see also United States v.
Microsoft Corp
., 253 F.3d 34, 6162, 6466, 7072, and 7374 (D.C. Cir. 2001) (finding that Microsoft’s OEM
license restrictions, its tying of Internet Explorer to Windows, and its exclusive dealing contracts with Internet
Access Providers (“IAPs”), Independent Software Vendors (“ISVs”), and Apple Computer were all
anticompetitive actions that violated the Sherman Act).

See, e.g., California Group’s Report on Remedial Effectiveness at 15 (Aug. 30, 2007), New York v. Microsoft
., 224 F. Supp. 2d 76 (D.D.C. 2002) (No. 98-1232), available at


(“There can be little doubt that Microsoft’s market power remains undiminished and that key provisions of the
Final Judgment those relating to middleware have had little or no competitively significant impact. One can
fairly ask what impact the Final Judgment has had on Microsoft apart from the cost of developing the still
delayed Technical Documentation that would cause it to refrain from engaging in similar conduct with respect
to whatever competitive threat might arise in the future. Consequently, the California Group respectfully
submits, Microsoft’s commingling violation has not been effectively addressed, Microsoft remains in possession of the fruits of its violation, and the competitive conditions antedating Microsoft’s anticompetitive
conduct have not been restored.”); Tunney Act Comments of Professor Einer Elhauge on the Proposed
Settlement Between the United States and Microsoft at 7 (Jan. 27, 2002), United States v. Microsoft, 87 F.
Supp. 2d 30 (D.D.C. 2000) (No. 98-1232), available at http://www.usdoj.gov/atr/cases/
00027209.pdf (criticizing the decree and noting that it would do “nothing effective about technological
foreclosure”); U.S. v. Microsoft: The Experts, The View From Outside: Assessing the Wisdom of a Breakup,
NEW YORK TIMES, Apr. 30, 2000, available at


9502EFDA1439F933A05757C0A9669C8B63 (quoting Steven
Salop, Professor at Georgetown University Law Center and consultant to the DOJ in the first action against
Microsoft, in discussing the Microsoft decree: “Conduct remedies are particularly difficult to enforce against a
company bent on exploiting any loopholes”); Carl Shapiro, Microsoft: Remedial Failure, ANTITRUST LAW
JOURNAL, at 18 (forthcoming), available at http://faculty.haas.berkeley.edu/shapiro/microsoft2008.pdf
(“Unfortunately, the Final Judgment [in United States v. Microsoft] has done little, if anything, to lower the
entry barriers facing these threats [to Windows].”).

Government Exhibit 259, United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232),
available at http://www.usdoj.gov/atr/

Government Exhibit 1332, United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232),
available at http://www.usdoj.gov/atr/

See United States v. Microsoft Corp., 253 F.3d 34, 7578 (D.C. Cir. 2001) (finding that Microsoft’s
exclusionary agreements with ISVs, its deceptive conduct as it related to Java developer tools, and its threats to
Intel to stop supporting Java were all anticompetitive measures taken to protect Microsoft’s operating system
monopoly). Sun brought a private antitrust action against Microsoft, which Microsoft settled for $700 million.
Press Release, Microsoft, Microsoft and Sun Microsystems Enter Broad Cooperation Agreement; Settle
Outstanding Litigation (Apr. 2, 2004), available at http://www.microsoft.com/presspass/

See, e.g., JavaSoft Ships Java 1.0, AllBusiness.com, Jan. 23, 1996, available at



See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 7475 (D.C. Cir. 2001) (“Microsoft, too, agreed to
promote the Java technologies–or so it seemed…. Microsoft made a large investment of engineering resources
to develop a high-performance [Java implementation].” (internal quotations omitted)) .

See id. at 76 (“Microsoft’s Java implementation included … certain keywords and compiler directives that
could only be executed properly by Microsoft’s version of the Java runtime environment for Windows … [and
produced] Java applications that [ran] only on Windows.”(internal quotations omitted)); id. at 7677
(“Microsoft’s ultimate objective was to thwart Java’s threat to Microsoft’s monopoly in the market for
operating systems. One Microsoft document, for example, states as a strategic goal: `Kill cross-platform Java
by grow[ing] the polluted Java market.’”).

See id. at 76 (observing that “developers who relied upon Microsoft’s public commitment to cooperate with Sun
and who used Microsoft’s tools to develop what Microsoft led them to believe were cross-platform applications
ended up producing applications that would run only on the Windows operating system”).

Government Exhibit 518, Email from Ben Slivka, United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C.
2000) (No. 98-1232), available at http://www.usdoj.gov/

See Findings of Fact, supra note 20, ¶¶ 396, 401.

United States v. Microsoft Corp., 253 F.3d 34, 77 (D.C. Cir. 2001) (quoting Findings of Fact, supra note 20,
¶¶ 40405).

See Alex Iskold, Java: A Retrospective, READWRITEWEB, Oct. 19, 2007,



In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 523 (4th Cir. 2003).

Government Exhibit 1576, Email from Jim Durkin, United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C.
2000) (No. 98-1232), available at http://www.usdoj.gov/atr/cases/exhibits/1576.pdf.

See Findings of Fact, supra note 20, ¶ 78. “RealNetworks’ streaming software presents a set of APIs that
competes for developer attention with APIs exposed by the streaming technologies in Microsoft’s DirectX.” Id.

¶ 111.

See EC Decision, supra note 52, ¶ 305; see also Findings of Fact, supra note 20, ¶ 111 (finding that Microsoft
viewed RealNetworks’ streaming software “as competitive technology that could develop into part of a
middleware layer that could, in turn, become broad and widespread enough to weaken the applications barrier to
entry”); id. ¶ 114 (“Still, Microsoft’s intentions toward RealNetworks in 1997 … show that decision-makers at
Microsoft were willing to invest a large amount of cash and other resources into securing the agreement of other
companies to halt software development that exhibited discernible potential to weaken the applications

Id. ¶ 113.

Plaintiffs’ Joint Proposed Findings of Fact, supra note 49, ¶ 84.2 ii.

See Findings of Fact, supra note 20, ¶ 114 (noting that RealNetworks planned to continue developing
competing streaming technologies).

See EC Decision, supra note 52, ¶ 844. The EC Decision noted that “[t]hrough tying [Windows media player
("WMP")] with Windows, Microsoft ensure[d] that WMP is as ubiquitous on PCs worldwide as Windows is.
No other distribution mechanism or combination of distribution mechanisms attain[ed] this universal
distribution.” Id. The EC further found that “[t]hrough tying WMP, Microsoft thus create[d] a [network effect]
reminiscent of the one that propelled Windows to its quasi-monopoly position in the client PC operating system
market.” Id. ¶ 882. RealNetworks later filed an antitrust suit against Microsoft, which Microsoft settled for
$761 million. Press Release, Microsoft, Microsoft and RealNetworks Resolve Antitrust Case and Announce
Digital Music and Games Partnership (Oct. 11, 2005), available at



See Complaint, Burst.com, Inc. v. Microsoft Corp., No. JFM-02-cv-2952, MDL Docket No. 1332 (D. Md.
dismissed Mar. 11, 2005). Microsoft changed published Windows APIs that Burst’s products were using and
told third parties that Burst’s products did not work well on Windows. Id. ¶ 29. It then provided Burst with a
series of purported solutions to the problem Microsoft had intentionally created, knowing that those solutions
were ineffective. Id. Burst brought suit, but its suit was frustrated by Microsoft’s destruction of key
documents. See Eriq Gardner, First Bill, Now Steve, IP LAW & BUS., Apr. 2006,


articles/IP%20Law&Business.htm. Burst introduced evidence of
Microsoft’s spoliation of evidence, including a 1995 “do-not-save-e-mail directive” and a “30-Day E-Mail
Destruction Rule” promulgated by Jim Allchin, Microsoft Group Vice President of platforms. Id. Allchin’s
directive told employees, “Do not archive your mail. Do not be foolish. 30 days.” Id. The suit was settled for
a reported $60 million just before a hearing on Burst’s spoliation claim. Id.; see also Robert Cringely, Bursted
Not Busted: Burst Really Did Win Its Case With Microsoft and Here’s Why
, I, CRINGELY, Mar. 17, 2005,


2005/pulpit_20050317_000846.html (positing that “Microsoft’s immediate
motivation to settle was the spoliation hearing that could have exposed the company to older cases being re-opened based on the possibility that Microsoft had deliberately destroyed evidence”).

See Findings of Fact, supra note 20, ¶ 78.

See id. ¶ 104. The district court found that “QuickTime competes with Microsoft’s own multimedia
technologies, including Microsoft’s multimedia APIs (called ‘DirectX’) and its media player. Because
QuickTime is cross-platform middleware, Microsoft perceives it as a potential threat to the applications barrier
to entry.” Id. ¶ 104.

See id. ¶ 105. The specific market allocation proposals discussed herein are only the ones that have come to
light through subsequent litigation, and it is highly probable that Microsoft has made market allocation
proposals to other nascent competitors that simply have not come to light, or at least have not come to public

See id. ¶ 106.

Plaintiffs’ Joint Proposed Findings of Fact, supra note 49, ¶ 79.2 ii.

See Findings of Fact, supra note 20, ¶ 109. As the district court noted, “Microsoft’s motivation was its desire to
limit as much as possible the development of multimedia content that would run cross-platform.” Id. ¶ 110.

Kevin J. O’Brien, As EU Debated, Microsoft Took Market Share, INT’L HERALD TRIB., Sept. 16, 2007,



See Ina Fried, Music Stops for Mac Windows Media Player, CNET NEWS, Jan. 12, 2006,


6026715.html?part=rss&tag=6026715&subj=news; Kevin J. O’Brien, As EU Debated, Microsoft Took Market
, INT’L HERALD TRIB., Sept. 16, 2007, http://

See Ina Fried, Music Stops for Mac Windows Media Player, CNET NEWS, Jan. 12, 2006,



EC Decision, supra note 52, ¶ 771.

EC CFI Judgment, ¶ 771

A server operating system is an operating system for a server, a device that performs services for connected
personal computers as part of a client-server architecture. In contrast, a client (or desktop) operating system
serves only a personal computer.

See Microsoft Corp., Windows NT and UNIX Interoperability, Oct. 1, 1997,



See EC Decision, supra note 52, ¶¶ 176301.

See id. ¶¶ 236301.

See IDC Workload Tracker 2007 (Worldwide Server Operating System Market Shares — Based on the IDC
Server Workload Models in 2000 and 2007).

See EC Decision, supra note 52, ¶¶ 78182.

See id.¶ 725 (“Microsoft’s research and development efforts are indeed spurred by the innovative steps its
competitors take in the work group server operating system market. Were such competitors to disappear, this
would diminish Microsoft’s incentives to innovate.”).

See Gregg Keizer, Microsoft Windows Server 2003: Experts Advise Caution, CHANNELWEB NETWORK, Apr.
19, 2003, http://www.crn.com/
it-channel/18822436 (weighing the pros and cons of migrating to Windows
Server 2003 and noting that many companies may want to “hold tight” rather than migrate).

See Steven Warren, Should You Upgrade to Windows Server 2008?, TECHREPUBLIC, Oct. 15, 2007,



See Jason Brooks, A Head Full of Windows Server 2008, EWEEK, Nov. 9, 2007,


a_head_full_of_windows_server_2008.html (“Microsoft’s
newly minted Windows Essential Business Server offers a very compelling answer to the question, ‘How can a
midsize business consume all the same sorts of Microsoft core server products that a large enterprise might
consume?’ … [A]n excellent answer to the wrong question.”).

See Burst.com, Inc.’s Motion for Spoliation Instruction, Witness Preclusion, and Related Relief, In re Microsoft
Antitrust Litigation
, No. JFM-02-cv-2952, MDL Docket No. 1332 (D. Md. dismissed Mar. 11, 2005), available
BurstSpoliation.pdf. Burst’s motion provides extensive documentation of
Microsoft’s revised “short fuse” document retention policy. For example, in a January 2000 email to the
Windows Division, Mr. Allchin directed employees: “Do not archive your email. Do not be foolish. 30 days.”
Id. at 13. As noted above, Microsoft settled with Burst on the courthouse steps just before oral argument on
Burst’s spoliation motion.

See Interim Joint Status Report on Microsoft’s Compliance with the Final Judgments at 6 (Oct. 17, 2003),
United States v. Microsoft, 87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232), available at


See Interim Joint Status Report on Microsoft’s Compliance with the Final Judgments at 78 (Oct. 8, 2004),
United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232), available at


atr/cases/f205700/205751.pdf. After plaintiffs, which included the United States and
several state attorneys general, brought this complaint to Microsoft’s attention, Microsoft responded that it was
willing to require prior notice, rather than prior consent. See id. However, plaintiffs still believed this response
was inadequate to comply with the Final Judgment and continued to demand modification of this requirement
until Microsoft eventually gave in, agreeing to make “additional changes” resolving plaintiffs’ concerns. See
Interim Joint Status Report on Microsoft’s Compliance with the Final Judgments at 6 (June 1, 2005), United
States v. Microsoft Corp
., 87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232), available at


See Interim Joint Status Report on Microsoft’s Compliance with the Final Judgments at 1213, (Oct. 19, 2005),
United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000) (No. 98-1232). The DOJ’s October 2005
Joint Status Report noted that it was “unfortunate that the draft specification contained the exclusivity
provision.” Id. at 13.

The European Commission recently fined Microsoft $1.35 billion for failure to comply with the Commission’s
2004 antitrust ruling. See Peppi Kiviniemi, EU Fines Microsoft $1.35 bn, LiveMint, Feb. 28, 2008,


EU-fines-Microsoft-135-bn.html?atype=tp. A lawyer for ECIS
expressed a similar regret in regards to Microsoft’s conduct in the EC, observing that it is “more profitable [for
Microsoft] to reap the anticompetitive benefits of non-compliance with the law and to pay the fines than to
comply.” Id.

See Memorandum Opinion at 38 (Jan. 29, 2008), New York v. Microsoft Corp., 224 F. Supp. 2d 76 (D.D.C.
2002) (No. 98-1232), available at http://www.microsoft-antitrust.gov/pdf/Jan292008MemOp.pdf (“[I]t is
abundantly clear that more than five years after the Communications Protocols and related technical
documentation were required to be available to licensees under § III.E, the documentation envisioned by that
Section is still not available to licensees in a complete, useable, and certifiably accurate form.”). The district
court extended the decree “based upon the extreme and unforeseen delay in the availability of complete,
accurate, and useable technical documentation relating to the Communications Protocols that Microsoft is
required to make available to licensees….” Id. at 3. The district court further noted that allowing the provisions of the Communications Protocols to expire jeopardized the “full procompetitive impact” of the Final Judgment. Id. at 4.

See Stephanie Condon, Vista Marketing Draws Antitrust Complaints, CNET NEWS, Jan. 28, 2009, at


8301-13578_3-10151757-38.html; Interim Joint Status Report on Microsoft’s Compliance
with the Final Judgments at 4 (Jan. 29, 2009), United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C.
2000) (No. 98-1232), available at http://www.usdoj.gov/atr/cases/f241600/241677.pdf; see also Microsoft
Presentation, “Advancing the Platform,” presented at Windows Hardware and Engineering Conference, Nov. 4-7 2008, available at http://download.microsoft.com/
5E66B27B-988B-4F50-AF3A-C2FF1E62180F/COR-T780_WH08.pptx (describing Project Velocity tests).

See Stephanie Condon, Vista Marketing Draws Antitrust Complaints, CNET NEWS, Jan. 28, 2009, at


8301-13578_3-10151757-38.html. Microsoft denies that marketing dollars will be tied to
the test results, but that remains an open issue as the program is undergoing changes. See id.

Transcript of Status Conference at 16, Jan. 28, 2009, United States v. Microsoft Corp., 87 F. Supp. 2d 30
(D.D.C. 2000) (No. 98-1232); see also Stephanie Condon, Vista Marketing Draws Antitrust Complaints, CNET
NEWS, Jan. 28, 2009, at http://news.cnet.com/
8301-13578_3-10151757-38 (quoting Steven Houck).

See Roger Parloff, Microsoft takes on the free world, CNN MONEY, May 14, 2007, available at



See Marguerite Reardon, Microsoft and EMC renew their vows, CNET.COM, Feb. 4, 2009, available at


See Gavin Clarke, Royalties are the admission price, Microsoft tells freetards, THE REGISTER, Mar. 27, 2008,
available at http://www.theregister.co.uk/2008/03/27/microsoft_brad_smith_patents_royalties/.

See Parloff, Microsoft takes on the free world, supra, note 128.

See, e.g., Matt Asay, Microsoft continues to prey on the overly cautious with patent deals, CNET.COM, Mar. 21,
2008, available at http://www.cnet.com/

See KSR International Co., Petitioner e. Teleflex Inc. et al., (2007) US 27, available at


opinions/06pdf/04-1350.pdf and In Re Bernard L. Bilski and Rand A. Warsaw,
United States Court of Appeals for the Federal Circuit, 2007-1130 (Serial No. 08/833,892), available at



See, e.g., KSR International Co., Petitioner e. Teleflex Inc. et al., supra, note 133; Angiotech Pharmaceuticals
Inc. v. Conor Medsystems Inc
. [2008] UKHL 49; Apotex Inc. v. Sanofi-Synthelabo Canada Inc. [2008] SCC 61.

See Bruce Perens, Analyzing Microsoft’s TomTom Lawsuit, DATAMATION.COM, Mar. 1, 2009, available at


Lawsuit.htm and Richard Hillesley, TomTom The drums of a patent war with Microsoft? ITPRO.COM, Mar. 5,
2009, available at http://www.itpro.co.uk/610093/

See, e.g., Federal Patent Court declares FAT patent of Microsoft null and void, HEISE ONLINE, Mar. 2, 2007,
available at http://www.heise.de/

See Press Release, European Commission, Antitrust: Commission Confirms Sending a Statement of Objections
to Microsoft on the Tying of Internet Explorer to Windows (Jan. 17, 2009), available at



See Press Release, European Commission, Commission Initiates Formal Investigation Against Microsoft in
Two Cases of Suspected Abuse of Dominant Market Position (Jan. 14, 2008), available at



See Charles Forelle, Microsoft’s Office Push Scrutinized by EU, WALL ST. J., Feb. 8, 2008,


SB120242867034452081.html (stating that the EC is examining whether
Microsoft’s pressure on countries to vote for the Office Open XML standard “amounted to an undue stifling of
competition”). “In the months and weeks leading up to the vote, Microsoft resellers and other allies joined standards bodies en masse helping swell the Italian group, for instance, from a half-dozen members to 85.”
Id.; see also Daniel Goldberg, Microsoft Pressed Swedish Partners to Vote for Open XML, PC WORLD, Aug.
30, 2007, http://www.pcworld.com/
article/id,136599-pg,1/article.html (noting that Microsoft offered “extra
marketing contributions” and “extra support in the form of Microsoft resources” to persuade its Swedish
business partners to vote for the adoption of Office Open XML).

Press Release, Microsoft, Microsoft Makes Strategic Changes in Technology and Business Practices to Expand
Interoperability (Feb. 21, 2008), available at http://www.microsoft.com/presspass/
02-21ExpandInteroperabilityPR.mspx; Mary-Jo Foley, All About Microsoft: Reading the Fine Print on Microsoft’s
Open-Source Promises
, ZDNET, Feb. 21, 2008, http://blogs.zdnet.com/microsoft/?p=1208.

See Dean Hachamovitch, Microsoft’s Interoperability Principles and IE8, IEBLOG, Mar. 3, 2008,



See, e.g., Chris Wilson, Standards and CSS in IE, IEBLOG, July 29, 2005,


archive/2005/07/29/445242.aspx; Ted Schadler, Commentary: IBM, Microsoft’s Web
Services Sing-Along
, CNET NEWS, Sept. 22, 2003, http://www.news.com/2030-1069_3-5079712.html; Nick
Wingfield, Microsoft Standards: Windows to W3C, CNET NEWS, July 1, 1997,



Press Release, European Commission, Commission Takes Note of Microsoft’s Announcement of
Interoperability Principles (Feb. 21, 2008), available at
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/106 (emphasis added).

Press Release, European Commission, Commission Decision to Impose Penalty Payments on Microsoft–
Frequently Asked Questions (Feb. 27, 2008), available at



Microsoft Corp., Introduction to DOM Storage, Microsoft Developer Network, http://msdn2.microsoft.com/en-

See World-Wide Web Consortium, HTML 5: A Vocabulary and Associated APIs for HTML and XHTML
§ 4.10 (Working Draft, June 10, 2008), available at http://www.w3.org/TR/html5/#storage.

Compare id. (documenting a standard set of storage related events and synchronous operations) with Microsoft
Corp., Introduction to DOM Storage, Microsoft Developer Network, http://msdn.microsoft.com/en-
us/library/cc197062.aspx (documenting different storage-related event names and asynchronous operations).

See California Group’s Report on Remedial Effectiveness at 24 (Aug. 30, 2007), New York v. Microsoft Corp.,
224 F. Supp. 2d 76 (D.D.C. 2002) (No. 98-1232), available at


Effectiveness_Report.pdf; see also
Microsoft Corp., Annual Report (Form 10-K) at 67 (July 31, 2008), available at


data/789019/000119312508162768/d10k.htm. The profit margin for
Microsoft’s client segment, which includes its Windows operating system, was 77% in fiscal year 2008. See id.
at 23. The profit margin for Microsoft’s business division, which includes Office, was 65%. See id. at 26.

See Operating System Market Share Survey, Net Applications, Dec. 2008, available at
http://marketshare.hitslink.com/operating-system-market-share.aspx?qprid=8; California Group’s Report on
Remedial Effectiveness at 10 (Aug. 30, 2007), New York v. Microsoft Corp., 224 F. Supp. 2d 76 (D.D.C. 2002)
(No. 98-1232), available at http://

See California Group’s Report on Remedial Effectiveness at 10 (Aug. 30, 2007), New York v. Microsoft Corp.,
224 F. Supp. 2d 76 (D.D.C. 2002) (No. 98-1232), available at



See id.; see also Hadley Stern, Mac Updates vs. Windows Updates, O’REILLY NETWORK, May 20, 2004,


mac_updates_vs_windows_updates.html (contrasting Apple’s
regular update schedule for its operating system with Microsoft’s and noting that “Microsoft’s … approach
leaves innovation on a very slow timeframe”).

See Robert Vamosi, Editors’ Reviews: Windows Vista, CNET REVIEWS, Jan. 24, 2007,


(labeling Vista a “warmed-over Windows XP Home edition” and noting that after five years of development
“there’s a definite ‘Is that all?’ feeling”); Ina Fried & Margaret Kane, Microsoft Revamps Its Plans for
, CNET NEWS, Aug. 27, 2004, http://www.news.com/
Longhorn/2100-1016_3-5327150.html (noting that Microsoft “has not had a full release of its desktop operating
system since Windows XP debuted in October 2001″).

Top Ten Terrible Tech Products, CNET CRAVE, Nov. 20, 2007,



EC Decision, supra note 52, ¶ 463 (citing an internal Microsoft memo drafted for Bill Gates by C++ General
Manger Aaron Contorer and dated Feb. 21, 1997).

See To Pay or Not to Pay: The World of Office Suites Opens Up, KNOWLEDGE@W.P. CAREY, Arizona State
Univ. School of Business, Oct. 10, 2007,


article.cfm?articleid=1483; see also

Daniel Eran Dilger, Microsoft’s Outrageous Office Profits, ROUGHLY DRAFTED MAG, Sept. 9, 2007,


09/09/microsoft%e2%80%99s-outrageous-office-profits/ (“Microsoft’s
Office suite represents the third pillar of the company’s core trio of monopolies, next to its Windows desktop
software and its Windows Server products.”).

See Microsoft Office – Compare the Office 2007 Suites, http://office.microsoft.com/en-

See Kurt Cagle, Microsoft Office Open XML Fails to Win ISO Vote, O’REILLY XML BLOG, Sept. 4, 2007,


See Jefferson Graham, Google Apps Can Be a Small Firm’s Best Friend, USA TODAY, Feb. 12, 2008,


software/2008-02-12-google-apps_N.htm (calling Microsoft Office “a
software behemoth in Corporate America”).

See Microsoft Corp., Annual Report (10-K), at 26 (July 31, 2008), available at


789019/000119312508162768/d10k.htm; see also Daniel Eran Dilger,
Office Wars 3–How Microsoft Got Its Office Monopoly, ROUGHLY DRAFTED MAG., Sept. 10, 2007,


(“Microsoft’s Office monopoly gives the company more revenues and delivers nearly as much profit as its
Windows software.”).

See David Kirkpatrick, Gates and Ozzie: How to Escape E-Mail Hell, FORTUNE, June 27, 2005, 169-72,
available at http://money.cnn.com/
06/27/8263426/index.htm (“Our
biggest competitor is always the status quo–people may just do things the way they’ve been doing them and
feel, hey, that’s good enough.”).

See Gregg Keizer, Microsoft Office System, CNET REVIEWS, Oct. 21, 2003, http://reviews.cnet.com/4520-
3513_7-5092597-1.html?tag=txt (explaining that Microsoft Office “isn’t a must-have upgrade for the average
home user”); Gregg Keizer, Microsoft Office XP Suite Reviews, CNET REVIEWS, Mar. 15, 2001,


4505-3524_7-5152705.html?tag=prod.txt.5 (noting
that Microsoft Office XP is “not worth the cost, time, and effort for single or home users” and offers only
“incremental improvements”); Gregg Keizer, All About Office 2000: Should You Upgrade?, CNET REVIEWS,
Apr. 12, 1999, http://web.archive.org/
topic/0,10000,0-3670-7-278204,00.html (follow the “Should You Upgrade?” link on the right) (stating that Office 2000 is not “cost
smart” for “small businesses, work-at-homers, or those operating without the infrastructure of an intranet”).

See Elinor Mills, Google Combines Word Processing, Spreadsheets, CNET NEWS, Oct. 10, 2006,


6124593.html?tag=nefd.top (explaining that Google Docs & Spreadsheets is a free program that allows users to
manage and create documents on the Web and noting that Microsoft has responded by “revamping its
business”); see also Elsa Wenzel, Microsoft Office 2007 Office Suite Reviews, CNET REVIEWS, Jan. 29, 2007,
http://reviews.cnet.com/office-suites/microsoft-office-2007/4505-3524_7-32143052.html?tag=prod.txt.1 (“The
advent of Office 2007 comes as a growing number of competing tools are simpler, cost less (if they aren’t free),
and handle the same core features.”).

See Elsa Wenzel, Microsoft Office 2007 Office Suite Reviews, CNET REVIEWS, Jan. 29, 2007,


microsoft-office-2007/4505-3524_7-32143052.html?tag=prod.txt.1 (noting
that the average user rating for Microsoft Office 2007 was “mediocre”). With Office 2007, Microsoft switched
from its proprietary binary file format for electronic documents to XML file format. Id. (“The new era of
Office affects even those who don’t upgrade, and a conversion tool is needed to let older Office versions open
Office 2007′s default, Open XML files.”). For developers who had spent years reverse engineering the
proprietary binary file format in order to allow some level of interoperability with non-Microsoft systems, the
switch to XML caused new incompatibility problems with these non-Microsoft users. See Ephraim Schwartz,
ODF vs. OpenXML, INFOWORLD, May 15, 2007,



See Browser Market Share for YTD 2009, Net Applications, http://marketshare.hitslink.com/browser-market-
share.aspx?qprid=0 (showing Microsoft Internet Explorer market share at almost 70%); California Group’s
Report on Remedial Effectiveness at 3 (Aug. 30, 2007), New York v. Microsoft Corp., 224 F. Supp. 2d 76
(D.D.C. 2002) (No. 98-1232), available at http://www.naag.org/
30_Filed_CA_Group_Effectiveness_Report.pdf (noting shares above 85% through 2006). It is worth noting
that what little ground Internet Explorer has recently lost to its rival browsers is not due to any success on the
part of the consent decree that ended the United States’ antitrust suit against Microsoft. As the California
Group (the Plaintiff States of California, Connecticut, Iowa, Kansas, Minnesota, and Massachusetts and the
District of Columbia) emphasized, even counsel for the United States was not willing to attribute any reduction
in Microsoft’s web browser market share to the Final Judgment. See id. at 9 (quoting counsel for the United
States as saying, “It’s hard to know what [that reduction is] attributable to, and I wouldn’t want to credit the
final judgment.”).

See Brian Wilson, Browser History Timeline: Overview,



See id.; Rex Baldazo, Review: Microsoft Internet Explorer 6.0, CNET REVIEWS, Mar. 31 2003,


Jim Rapoza, IE 5.0′s Best Surprise Is No Surprise, EWEEK, Mar. 29, 1999,


(stating that as an upgrade, IE 5.0 is “bloated” and “doesn’t radically change the product”).

Charles H. Ferguson, What’s Next for Google, TECH. REV., Jan. 2005,
http://www.technologyreview.com/Infotech/14065/ (pointing out that only recently has Microsoft again begun
innovation in the browser market once it “realized that Firefox was starting to gain share”). Around the same
time, Microsoft also ended development of Internet Explorer for Mac users, redeploying the entire team to work
on an unrelated project. See Jorg Brown, I was on the MacIE 6 Team When It Got Canned, SLASHDOT, Dec. 18,
2005, http://apple.slashdot.org/
comments.pl?sid=171546&cid=14288661 (“[A]lmost immediately after 5.0 was
released, the MacIE team was redeployed to work on a set-top DVR box.”); see also Colin Baker, Microsoft
Drops Mac IE
, CNET NEWS, Dec. 19, 2005, http://www.news.com/
6000919.html (stating that Microsoft officially ended support for the Mac IE in 2003 and that it had not updated
the software in over three years, meaning that Mac users only had access to IE 5 while Windows users had IE

See Robert Vamosi, Internet Explorer 7 Browser Review, CNET REVIEWS, Oct. 18, 2006,
http://reviews.cnet.com/browsers/internet-explorer-7/4505-3514_7-32111537.html (“IE 7 was Microsoft’s one
chance to leapfrog ahead of the competition, but the company has only barely caught sight of the current front-
runners. For more features and greater security, switch to Mozilla Firefox.”). Some changes within IE7 are
“merely cosmetic” and the browser is missing the “innovative, cutting-edge features” found on Firefox2. Id.;
see also Fred Vogelstein, Search and Destroy, FORTUNE, May 2, 2005, at 75, available at


fortune_archive/2005/05/02/8258478/index.htm (“[T]he recently
released Firefox browser, which can be downloaded free, has forced Gates to reconstitute an Internet Explorer
development team.”).

Dare Obasanjo, Mac IE’s Death: A Case for Microsoft Disbanding or Transferring the Windows IE Team, Dare
Obasanjo aka Carnage4Life, Dec. 19, 2005,



Walter S. Mossberg, For Tabbed Browsing and Other New Tricks, Try Explorer’s Rivals, WALL ST. J., Jan. 8,
2004, available at http://web.archive.org/

See California Group’s Report on Remedial Effectiveness at 3 (Aug. 30, 2007), New York v. Microsoft Corp.,
224 F. Supp. 2d 76 (D.D.C. 2002) (No. 98-1232), available at


(reporting an 85% market share for Internet Explorer in 2006).

See Robert Vamosi, Internet Explorer vs. Firefox 2, CNET REVIEWS, Oct. 30, 2006,


4520-10442_7-6656808-7.html?tag=btn (stating that “Firefox 2 still rules the browser
roost for now, despite a much improved version of Internet Explorer” and noting that Firefox has “earned its
spot at the top of the browsers”) (link is to inner page of review); Erik Larkin, Radically New IE 7 or Updated
Mozilla Firefox 2–Which Browser is Better?
, PC WORLD, Oct. 24, 2006,


id,127309-page,6-c,browsers/article.html (“Of the two rivals, Firefox remains
the better application.”).

See California Group’s Report on Remedial Effectiveness at 12 (Aug. 30, 2007), New York v. Microsoft Corp.,
224 F. Supp. 2d 76 (D.D.C. 2002) (No. 98-1232), available at


antitrust.2007-08-30_Filed_CA_Group_Effectiveness_Report.pdf (“The
OEM flexibility provisions of the Final Judgment have not produced competitively significant results because
they do not adequately address the persistent disincentives (including Microsoft’s advantage of free universal
distribution, additional support costs, potential consumer confusion and PC resource constraints) that discourage
OEMs from preloading rival middleware products on a Windows PC….”); see also Edward F. Moltzen, Firefox
Gets No Respect from PC Makers, Despite Popularity
, CHANNELWEB NETWORK, Oct. 15, 2007,


See Net Applications, Browser Market Share, http://marketshare.hitslink.com/report.aspx?qprid=0. As the
Chairperson of the Mozilla Foundation put it: “Equally important, the success of Mozilla and Firefox does not
indicate a healthy marketplace for competitive products. Mozilla is a non-profit organization; a worldwide
movement of people who strive to build the Internet we want to live in. … I certainly hope that neither the EU
nor any other government expects to maintain a healthy Internet ecosystem based on non-profits stepping in to
correct market deficiencies.” Mitchell Baker, Chairperson, Mozilla Foundation, The European Commission and
, Mitchell’s Blog, Feb. 6, 2009, http://blog.lizardwrangler.com/

Paul Festa, Microsoft Offers Tabbed Browsing–In IE 6, CNET NEWS, June 8, 2005, available at


2100-1032_3-5738037.html (explaining that
tabbed browsing is a feature, “long offered by IE competitors like Opera, Safari and Firefox,” that enables users
to open several web pages in a single window and select among them by clicking on a tab at the top of the page,
and noting that tabbed browsing would not be standard on Internet Explorer until Version 7).

See Sara Grant, Lessons from the Browser Wars: Q&A with Pai-Ling Yin, HARV. BUS. SCHOOL WORKING
KNOWLEDGE, Apr. 10, 2006, http://hbswk.hbs.edu/item/5288.html (detailing corporate managers’ unwillingness
to switch their companies to Firefox).

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