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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:


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