Judge Narrows Sun's Antitrust Case Against Microsoft

But U.S. District Judge J. Frederick Motz refused to dismiss antitrust and other claims made by two other companies.

Motz has already approved Sun's request to require Windows to include Sun's latest Java programming language pending resolution of its lawsuit.

Sun contends that Microsoft has gained an unfair advantage by shipping Windows -- used by more than 90 percent of the world's personal computers -- with an outdated version of Java that's inconsistent for its users.

These private antitrust lawsuits are separate from a case filed by the Justice Department and 18 states. In that lawsuit, another federal judge found that Microsoft acted as an illegal monopoly based on its dominance in desktop operating systems. Microsoft ultimately settled, although two states are still appealing.

In the Sun case, Motz dismissed two of 16 claims made by Sun, though the judge said Sun could resubmit the charges with amendments. The two claims deal with monopolization of personal computer operating systems and the Web browser market.

Motz reserved judgment on Microsoft's attempts to dismiss additional claims, some of which involve allegations of "tying,: in which a seller with monopoly power over one product uses that power to coerce the purchase of a second product.

"I'm just going to go back and take one more look at it," Motz said.

Sun attorney Lloyd R. Day said Motz' decision to drop two claims would not affect the case.

Meanwhile, Motz agreed to let lawsuits by Burst.com and defunct software maker Be Inc. proceed. The companies claim that Microsoft used its might to squeeze out an alternative to its Windows operating system as well as technology for streaming video online.

Microsoft sought to dismiss five claims filed by Burst.com, a Santa Rosa, Calif., company that makes technology for streaming movies and sounds.

Burst.com attorney Spencer Hosie argues that by developing its own streaming technology, known as Windows Media, Microsoft "essentially muscled all the other competitors aside, and seized it for itself."

Meanwhile, Be alleges that Microsoft pressured computer manufacturers such as Compaq and Dell not to install Be's rival BeOS operating system, which would have allowed buyers to easily switch back and forth between BeOS and Windows.

As a result, Be had difficulties competing, Be attorney Stephen Susman said. Be has since sold most of its assets to Palm Inc.

David Tulchin, a Microsoft attorney, said he wasn't surprised by Motz's decisions on Burst.com and Be, saying Microsoft had "a tough burden" to get the claims dismissed.

"This is sort of a preliminary ruling," Tulchin said. "It doesn't mean that we're wrong. It doesn't mean that we're right. It just means that these things will get resolved later."

Responding specifically to Be's complaints, Microsoft argued that there were other ways to enter the market, such as by distributing disks or offering downloads over the Internet. But Susman said few customers would want to go through those hurdles.

Friday's hearing came less than a month after Motz said he would order Microsoft to include an updated version of Sun's Java software in Windows. Motz has given Sun and Microsoft 90 days to meet with him and work out details before a formal order is issued. It would be in effect while Sun presses its $1 billion antitrust suit claiming Microsoft used its monopoly to hurt Java.

Microsoft attorney David Tulchin said the company would appeal the order once issued, something he said could come as early as next week.

Attorneys are scheduled to meet with Motz on Wednesday to discuss the injunction. After Friday's hearing, Sun's Day said the two sides are still far apart on the specific language.