Jury chosen in Novell-Microsoft trial in Utah
Tech • Case centers on whether software giant tried to harm Provo firm.
Published: October 17, 2011 03:05PM
Updated: October 17, 2011 03:17PM
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The Novell-Microsoft legal rift that's been bouncing around the courts since 2004 is making its return to Utah in October.

A jury was selected Monday at the trial in which Utah-based Novell Inc. is accusing Microsoft Corp. of anti-trust behavior in the mid-90s as Novell tried to compete head-to-head with the software giant.

The jury of seven women and five men will hear the case in U.S. District Court for Utah in Salt Lake City. Opening arguments from attorneys for both sides are scheduled for Tuesday, with Novell asserting that Microsoft’s used its virtual monopoly on personal computer operating systems to harm its business that included WordPerfect, once the most popular word-processing program.

Microsoft intends to argue its actions were not intended to try to maintain a monopoly and that the decline in the value of WordPerfect and other Novell software programs resulted from poor decisions by the Provo-based company.

Novell has marked as Exhibit No. 1 a 1994 email from then-Microsoft Chairman and CEO Bill Gates to software development teams about features being discussed for the Windows 95 operating system.

The exhibit ranking is an indication of the importance Novell places on that piece of evidence as its attorneys enter federal court in Salt Lake City to begin the trial over whether Microsoft engaged in anti-competitive actions that harmed Novell’s products, including WordPerfect.

Gates is on the witness list to testify at the trial, expected to last up to seven weeks, over whether Microsoft’s actions violated antitrust laws and harmed Novell.

The trial marks the end of an era in computing history. For Microsoft, it is the last of a string of antitrust lawsuits it has fought since 1998, when the U.S. Justice Department sued it and then a number of companies jumped on board and also filed actions that have kept the company in court for about 13 years.

“We’ve had twin goals of wanting to do the right thing legally and move past those fights from back then,” said Steven Aeschbacher, associate general counsel for Microsoft. “We’ve worked hard on both of those fronts to win and at the same time to resolve things and move forward when we’re trying to do business.”

Novell, which began in Utah and remains here as a unit of Attachmate Inc., says it was harmed to the tune of $1.2 billion and will ask jurors to order Microsoft to compensate it for the losses. Microsoft contends that any harm was mostly self-inflicted, caused by Novell’s own decisions that included buying WordPerfect and then dumping it only about a year and a half later as it reassessed its business strategies.

Novell contends that its attempt to compete with Microsoft with the purchase of WordPerfect and the spreadsheet Quattro Pro in 1994 was harmed by a decision Microsoft made not to support a couple of technical features as it released Windows 95, the company’s first highly successful operating system with a graphical user interface.

In an Oct. 3, 1994, email, Gates tells Microsoft development teams about his decision to not support the features in Windows 95, and he mentions WordPerfect and Lotus Notes in competition with Microsoft’s Office software.

“We should wait until we have a way to do a high level of integration that will be harder for [the] likes of Notes, WordPerfect to achieve, and which will give Office a real advantage,” Gates wrote.

Novell says the email shows Gates “targeted Novell’s applications by name in documents recording Microsoft’s anti-competitive schemes.”

“He candidly admitted that Microsoft’s own products could not compete without the benefit of these anti-competitive acts,” Novell said in its lawsuit.

But in a March 2009 deposition, Gates denied his email indicated the decision was made for competitive reasons. Gates said he was indicating the features were not important and that he also was trying to push the Office software development team to be innovative.

“The decision I was making in this memo is about: Is this an important thing? And I’m saying it’s not,” Gates said in the deposition.

“It did not come up in any competitive sense,” he said.

Novell originally sued in 2004, eight years after it sold off WordPerfect and Quattro Pro, claiming Microsoft’s actions harmed those programs to the benefit of its Word and Excel. But U.S. District Judge J. Frederick Motz of Baltimore, who presided over the antitrust cases against Microsoft and will do the same at the Salt Lake City trial, tossed out those claims because they were filed too late.

What remains is Novell’s claim that Microsoft harmed WordPerfect and Quattro Pro in order to protect its Windows operating system from competition that could arrive if those applications became popular with users who would then be less likely to need or want Windows. Microsoft has called that legal theory “unusual.”

tharvey@sltrib.com

Twitter: @tomharveysltrib

Time line

1994 • Novell merges with WordPerfect and buys Quattro Pro

1995 • Microsoft releases Windows 95

1996 • Novell sells WordPerfect, Quattro Pro

2004 • Novell sues Microsoft, alleging it damaged WordPerfect and Quattro Pro business

2011 • Trial to begin Monday