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A New Antitrust Lawsuit - Go Corp. v. Microsoft
Monday, July 04 2005 @ 06:04 AM EDT

Go Corporation, the pioneer pen computing company, is suing Microsoft for antitrust violations. The case was filed in US District Court in San Francisco by Go co-founder S. Jerrold Kaplan. I'll bet you could write their complaint for them, without even knowing the facts of their case, couldn't you, from memory, from all the other cases?

If not, here they are, from Ina Fried's CNET article:

"Microsoft undertook to 'kill' Go by resorting to many of the same collusive and exclusionary tactics Microsoft used against Netscape, Sun, Novell...and others," according to the complaint, which was seen by CNET News.com.

The lawsuit also claims that Microsoft stole Go technology, that the company threatened Intel, which had invested in Go, and that it used "incentives and threats" to coerce Compaq, Fujitsu, Toshiba and other computer makers not to use Go's operating system.

Microsoft spokeswoman Stacy Drake rejected Kaplan's assertions.

"These claims date back nearly 20 years," Drake said on Friday. "They were baseless then and they are baseless now."

We'll see.

Here's why the age of the claims might not matter. John Markoff's coverage in the New York Times provides the key information:

Reached by telephone on Sunday, Mr. Kaplan declined to comment. But in testimony last year on a class-action filed against Microsoft in Minnesota, Mr. Kaplan said that he had been surprised by evidence that Microsoft had been plotting to defeat Go.

"This was a corporate mugging that went uncorrected and unknown," Mr. Kaplan said in interview last year.

The events surrounding the failure of Go have been cited as a reason for the animosity between Silicon Valley executives and Microsoft. Go was a prominent effort by entrepreneurs and venture capitalists to create software for tablet-sized devices.

Since they say they only just learned of the facts of their claim in 2004, the fact that it happened 20 years ago should not matter, although statutes of limitations can be complex. For one thing, it's different state by state, and then the facts of a case can be complicated as to figuring out when you should start the clock. Here's a page that explains what statute of limitations means and how it works.

One reason the law lets you choose, when it does, between when the injury occurs and when you find out about it is because in most cases, for example in a price-fixing scheme in an antitrust context, as this page explains, "[t]he most serious violations of Section 1 of the Sherman Act are always or almost always committed in secret." It would hardly be fair, then, to force victims to abide by a law that said you only had a certain time period to bring an action, when it might be years before the facts come to light.

On the other hand, here is a case against Microsoft in California where the plaintiff was bitten by the statute of limitations. And here's a case where the same Maryland judge hearing the Novell v. Microsoft antitrust case ruled against plaintiffs and for Microsoft when it raised the statute of limitations defense. Maybe that is why Microsoft was so eager to return to Maryland instead of staying in Utah. And of course, they did claim the statute of limitations had run on Novell's claims, and only two of the claims survived.

Maybe Microsoft said that just to try to indicate they are no longer corporate muggers, as opposed to setting forth a legal defense. I think we'll be able to judge whether Microsoft has changed its ways and is no longer a mugger by how it treats Linux going forward.

As to whether the claims are baseless or not, that is what courts are for, to determine the validity of claims.

Markoff reported in depth on the Go story in covering the class-action trial last year in Minnesota, which only lasted a couple of weeks before it settled:

Testimony during the second week of trial in the consumer class-action lawsuit in Minnesota has revealed some embarrassing internal documents from Microsoft which were not disclosed in the bitter 1997 federal antitrust lawsuit that focused on the company's attempt to control the browser markets in the 1990's.

Among the documents introduced in court this week was a letter from June 1990 in which Bill Gates, Microsoft's chairman, told Andrew S. Grove, the chief executive of Intel at the time, that any support given to the Go Corporation, a Silicon Valley software company, would be considered an aggressive move against Microsoft.

Other evidence presented by the plaintiffs' lawyers at trial yesterday gave an account of how Microsoft violated a signed secrecy agreement with Go and showed that Microsoft possessed technical documents from Go that it should not have had access to.

A Microsoft spokeswoman said that many of these newly disclosed documents were not relevant to the trial, which focuses on Microsoft pricing actions. "These are very old documents, taken out of context for the sole purpose of obscuring the real issue of this case," said Stacy Drake, the Microsoft spokeswoman.

But lawyers for the plaintiffs contend that the documents show how Microsoft unfairly dominated the market. "All of Microsoft's conduct was designed to acquire and hang on to their monopoly,'' said Eugene Crew, a lawyer at Townsend, Townsend & Crew, based in San Francisco. "Consumers were harmed by being deprived of choice. The greatest harm out of the Go story was the suppression of innovation and new technology by Microsoft."

Documents presented at that trial included some email showing Microsoft violated NDAs with Go, and "then used that information to build PenWindows, a competitor to Go's PenPoint operating system," Markoff reported. There was also a letter from Gates to Intel's Andy Grove on the theme that Intel should use a version of Windows for portable computers instead of Go's PenPoint.

The letter read in part:

"I guess I've made it very clear that we view an Intel investment in Go as an anti-Microsoft move, both because Go competes with our systems software and because we think it will weaken the 386 PC standard."

Shortly afterwards, according to Mr. Kaplan's testimony, Intel reduced its investment in Go from $10 million to $2 million and insisted that even that level of investment be kept secret.

Markoff says they filed in both state and federal court, but I am puzzled how that can be so. I'm checking. The Minnesota class action complaint and a link to the Minnesota Class Action page, where you can find the the Settlement Agreement [PDF], can all be found on our Microsoft Litigation page. If you want to see an old Go PenPoint, you can look at the pictures in the PenPoint Museum and choose Hardware, but it's not in English. To read how it worked, try this page. If you'd like to see the NDA between Microsoft and Go, entered as an exhibit attached to the Kaplan deposition in the Minnesota trial, here you go:


  


A New Antitrust Lawsuit - Go Corp. v. Microsoft | 155 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic here please
Authored by: fudisbad on Monday, July 04 2005 @ 06:20 AM EDT
For current events, legal filings and Caldera® collapses.

Please make links clickable.
Example: <a href="http://example.com">Click here</a>

---
See my bio for copyright details re: this post.
Darl McBride, show your evidence!

[ Reply to This | # ]

Corrections here please
Authored by: fudisbad on Monday, July 04 2005 @ 06:21 AM EDT
First of all, the link with text "settled" is broken.

---
See my bio for copyright details re: this post.
Darl McBride, show your evidence!

[ Reply to This | # ]

Is this really true
Authored by: Anonymous on Monday, July 04 2005 @ 06:23 AM EDT
Among the documents introduced in court this week was a letter from June 1990 in which Bill Gates, Microsoft's chairman, told Andrew S. Grove, the chief executive of Intel at the time, that any support given to the Go Corporation, a Silicon Valley software company, would be considered an aggressive move against Microsoft.

IANAL and I am not a US resident, but I thought that this was a lynching offence in the US.

Alan(UK)

[ Reply to This | # ]

Hush money
Authored by: fudisbad on Monday, July 04 2005 @ 06:25 AM EDT
I've got a funny feeling this suit will suffer the same fate as all the other
suits: a payout from Redmond, which says that it has done nothing wrong.

The question is, how much money will be paid? $10m? $50m? $100m or more, even
though Go's OS probably isn't worth that much?

---
See my bio for copyright details re: this post.
Darl McBride, show your evidence!

[ Reply to This | # ]

Memo to Wallace
Authored by: Anonymous on Monday, July 04 2005 @ 07:17 AM EDT
You picked the wrong mob. The FSF will fight, IBM, well,
SCO tried first and look where it got them. Microsoft may
have paid.

[ Reply to This | # ]

800 x 600 unfriendly
Authored by: belzecue on Monday, July 04 2005 @ 10:22 AM EDT
I use 800x600 for easy reading with my tired old eyes. Unfortunately it
sometimes means, like here, that a large inline graphic blows out the browser
width and forces me to scroll the window right and left, right and left to read
each line of text.

Large graphics and text do not flow well together. A popup window or link would
have been more flexible. And don't forget readers on handsets and Palms -- how
they cope with a page like this I don't know.

Steve M, if this was your idea, my jacket is coming off and it's you and me in
the carpark now, buddy :-)

[ Reply to This | # ]

A New Antitrust Lawsuit - Go Corp. v. Microsoft
Authored by: marbux on Monday, July 04 2005 @ 11:23 AM EDT
Markoff says they filed in both state and federal court, but I am puzzled how that can be so. I'm checking.
Sometimes parties have no choice but to do so, as when there is no diversity between the parties and associated state claims arguably don't overlap enough to qualify for pendent jurisdiction. In such a circumstance, the plaintiffs' lawyers may feel it is better to file in both jurisdictions and let the other side do the heavy lifting to get the cases consolidated, rather than facing arguments that the state claims should be dismissed from the federal action, possibly raising further statute of limitations issues when the state claims are later filed in state court. All in all, sometimes that is a better solution than filing everything in federal court and then fending off arguments that the state claims lack jurisdiction in federal court. It forces the defendant to advocate consolidation rather than dismissal in federal court.

Of course there could be other reasons, but that's what I suspect is going on.

---
Retired lawyer

[ Reply to This | # ]

Jerry Kaplan is...
Authored by: Anonymous on Monday, July 04 2005 @ 11:43 AM EDT
a hard working, very successful entrepreneur with several business ventures and
a book behind him. I wouldn't bet against him in this latest enterprise...

[ Reply to This | # ]

A New Antitrust Lawsuit - Go Corp. v. Microsoft
Authored by: red floyd on Monday, July 04 2005 @ 12:06 PM EDT
I'm not so sure the argument of "surprise" will fly. Kaplan wrote a book about the whole mess in 1996.

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United States of America.

[ Reply to This | # ]

A New Antitrust Lawsuit - Go Corp. v. Microsoft
Authored by: blacklight on Monday, July 04 2005 @ 03:44 PM EDT
Given all the lawsuits where Microsoft is a defendant, Microsoft's
idemnification policy is actually a business necessity for them.

[ Reply to This | # ]

A New Antitrust Lawsuit - Go Corp. v. Microsoft
Authored by: Anonymous on Tuesday, July 05 2005 @ 08:23 AM EDT
Reading the article about the OS's API, I think I can make a guess why it went
nowhere:

Programmers probably looked at it, then laughed and said "You want me to
write in THAT?!?".

It's not the ugliest API I've ever seen, but it's definitely up there - and the
very thought of debugging code written using it sends shivers down my spine.

[ Reply to This | # ]

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