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The U.S. public “has been denied justice by the jury’s confused or haphazard decision,” claimed Danbury’s Bristol Technologies in a Nov. 17 motion for a new antitrust trial against Microsoft. It comes 16 months after a federal jury in Bridgeport awarded $1 to Bristol for unfair trade practices, initially viewed as a hands-down Microsoft victory. The jury avoided having to decide the tough antitrust issues in the six-week trial by finding from the start that Bristol hadn’t proved the existence of the three software markets at issue. Bristol claims Microsoft dominated the desktop computer market with its Windows operating system, and opportunistically used Bristol software to gain entry to two more lucrative niches — technical workstations and high-end departmental servers. The jury said Bristol hadn’t proved the existence of separate market segments for these two categories of computers. But in light of the trial record, Bristol contends that “after cursory deliberations,” the jury issued an “incomprehensible” verdict. “The failure to find that Microsoft’s conduct occurred in legally relevant economic markets was plainly and palpably wrong,” not simply “to Bristol, but to the public as well,” the motion states. Microsoft is represented by New York’s David B. Tulchin, of Sullivan & Cromwell, and in Connecticut by James Sicilian, of Hartford-based Day, Berry & Howard. “I think it’s the same argument Bristol made to the jury, and that the jury rejected,” with its verdict, said Sicilian about Bristol Technologies’ motion. “The term ‘relevant market’ is a fundamental element of a monopolization claim, one that was hotly contested throughout the trial,” he said. Tulchin, in an interview, says the jury had plenty of evidence to conclude that the boundaries between the three types of computers have grown increasingly indistinct. He objected to Bristol’s characterization of the jury’s work as “cursory,” saying it deliberated for parts of two days, and may have decided quickly because the evidence for Microsoft’s case was compelling. Bristol’s case began in advance of the U.S. Justice Department’s antitrust case against Microsoft in Washington D.C., and was a private civil action. Connecticut Attorney General Richard Blumenthal filed an amicus curiae brief in support of Bristol’s antitrust and consumer protection claims against Microsoft. It states, “Bristol’s claims are of even greater public interest because the potential to restore healthy conditions still exists.” Under several legal theories, Bristol has tried to compel Microsoft to disclose its most up-to-date source code for Windows operating systems. As is still the case, in the early 1990s Microsoft commanded more than 90 per cent of the market for PC operating systems, but had little market share in the high-speed technical workstations used, for example, by graphic designers who require huge amounts of computer memory and blazing speed. Windows was also shut out of the market for high-capacity network servers, where the official computer platform had traditionally been UNIX or one of its commercial variations. Microsoft sought out Bristol as an ally in making commercial inroads into these two high-end markets, Bristol claimed. Bristol’s Wind/U software product allowed computer programs written to UNIX to be used on Windows systems, and vice versa, tearing down barriers between the two computer languages. While Bristol’s product was useful to Microsoft in building market share, Microsoft honored assurances it would share its source code, Bristol says. But by 1996, when Microsoft had substantial market penetration in the tech workstation and high-end server markets, Microsoft offered less of the source code for its latest versions of Windows NT. Bristol’s case was based on arguments that Microsoft was intentionally preventing Bristol from producing an accurate and adequate Wind/U, to pressure the top markets using both Windows and UNIX to switch to Windows-only status. In Tulchin’s closing arguments before the jury, he contended that Bristol’s expert “invented” the higher-end markets, and that the distinctions are disappearing as PCs become increasingly powerful. Reed Rubenstein, of Hartford’s Axinn, Veltrop & Harkrider, says that antitrust cases have not depended on market definitions as much as they have in recent years.

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