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When to bar? | 234 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
When to bar?
Authored by: IMANAL_TOO on Sunday, November 11 2012 @ 12:40 PM EST
When are lawyers technically barred from taking up cases?

If Boies has had Microsoft as a client (even if more than a decade ago) is he
now allowed to represent Novell _against_ Microsoft?

It is obvious that Novell would want his expertise, but, could Microsoft go
against that du to some technicality? Are there anything like a
"reasonable" or fixed time limit?




---
______
IMANAL


.

[ Reply to This | # ]

Kerrections --> Corrections
Authored by: OpenSourceFTW on Sunday, November 11 2012 @ 12:44 PM EST
Place correction in title please.

[ Reply to This | # ]

Newspicks Thread
Authored by: OpenSourceFTW on Sunday, November 11 2012 @ 12:45 PM EST
Please use links, as the newspicks will eventually scroll off the page.

[ Reply to This | # ]

Off Topic Thread
Authored by: OpenSourceFTW on Sunday, November 11 2012 @ 12:46 PM EST
Keep your discussion off topic, or you will be forced to read all the fillings
of the case above and summarize them in one paragraph.

[ Reply to This | # ]

Comes Goes Here
Authored by: OpenSourceFTW on Sunday, November 11 2012 @ 12:47 PM EST
Keep 'em coming! Thanks!

Offtopic: Yay! My first quadrafecta! 5 minutes of fame! :P

[ Reply to This | # ]

We have been covering this litigation since 2004. Can you believe it?
Authored by: Anonymous on Sunday, November 11 2012 @ 05:00 PM EST

Yes I can. Leaving out the technology, the shear number of events and
documents that need to be covered, probably make this case one of the
more complex cases that a judge is going to see.

Add the technology, and on top add a judge who hasn't learned the
technology, and you end up with problems.

I feel sorry for Judge Mott. Trying this case would be like trying to cross the

road blindfolded.

Wayne
http://madhatter


[ Reply to This | # ]

Lawyers getting along personally
Authored by: JonCB on Sunday, November 11 2012 @ 06:00 PM EST
I do wonder if the exception to the rule here might be Apple-
V-Samsung. There's something about that legal tussle that
makes me think that things are getting just a tad personal.

[ Reply to This | # ]

  • Getting Personal - Authored by: Anonymous on Sunday, November 11 2012 @ 06:17 PM EST
Does this mean SCO is really over? or is there a conflict of interest?
Authored by: Anonymous on Sunday, November 11 2012 @ 06:57 PM EST
Unless SCO is officially over, it seems like there is a conflict of interest
here with Boies Schiller suing Novell in the SCO case and working for them in
this case.

Since the deal in the SCO case was for a one-time fee covering all appeals, it
seems like that case is not over for his law firm unless appeals are dropped.

[ Reply to This | # ]

Handle it by weight.
Authored by: BitOBear on Sunday, November 11 2012 @ 09:31 PM EST
The courts should start handling these over-length appeals by weight instead of
length. Tell them they get 750 grams. If they go over-weight, the court will
take a paper-cutter to the stack and trim off the bottom edge till the thing
makes weight.

No requests, no warnings.

Did they cut off all your footnotes and citations... pity poor Priscilla.

Do your arguments fall apart because key sentences are missing from the pages?
ibid.

Seriously isn't there rules for a reason and why does BS&F think they are
super exceptional to all these rules?

[ Reply to This | # ]

Yes!
Authored by: Ian Al on Monday, November 12 2012 @ 04:27 AM EST
I've drawn attention to the US v. Microsoft opinions before in relation to Novell v. Microsoft. Please note that the anticompetitive action between Word and WordPerfect had already been dealt with in a previous case. This was all about middleware.

From STATE OF NEW YORK, et al., v. MICROSOFT CORPORATION (with citations deleted and my emphasis):
Ultimately, by writing to the middleware API set, applications developers could write applications which would run on any operating system on which the middleware was present. Plaintiffs focused their attention primarily upon two such middleware threats to Microsoft’s operating system dominance–Netscape Navigator and the Java technologies.

The district and appellate courts accepted Plaintiffs’ theory of competition despite the fact that “neither Navigator, Java, nor any other middleware product could [at that time], or would soon, expose enough APIs to serve as a platform for popular applications.”...

Four-Part Test for Liability

Having concluded that the district court properly identified the relevant market as the market for Intel-compatible PC operating systems and properly excluded middleware products from that market, the appellate court turned its attention to the issue of whether Microsoft responded to the threat posed by middleware in violation of § 2 of the Sherman Act. Specifically, the appellate court set out to determine whether Microsoft “maintain[ed], or attempt[ed] to . . . maintain, a monopoly by engaging in exclusionary conduct.” The appellate court recounted that the district court answered that inquiry in the affirmative, finding “Although certain Web browsers provided graphical user interfaces as far back as 1993, the first widely-popular graphical browser distributed for profit, called Navigator, was brought to market by the Netscape Communications Corporation (‘Netscape’) in December 1994.”

Microsoft liable for violating § 2 of the Sherman Act:

by engaging in a variety of exclusionary acts . . . [s]pecifically . . . : (1) the way in which it integrated [Internet Explorer] into Windows; (2) its various dealings with Original Equipment Manufacturers (“OEMs”), Internet Access Providers (“IAPs”), Internet Content Providers (“ICPs”), Independent Software Vendors (ISVs), and Apple Computer; (3) its efforts to contain and to subvert Java technologies; and (4) its course of conduct as a whole.

In order to review the district court’s findings on this point, the appellate court outlined a four-part test for determining whether particular conduct can be said to violate antitrust law.

“First, to be condemned as exclusionary, a monopolist’s act must have an ‘anticompetitive effect.’ That is, it must harm the competitive process and thereby harm consumers.”

Second, the plaintiff must “demonstrate that the monopolist’s conduct harmed competition, not just a competitor.”

Third, “the monopolist may proffer a ‘procompetitive justification’ for its conduct.” If this justification stands unrebutted by the plaintiff, the monopolist may escape liability.

Therefore, the fourth prong of the inquiry requires that the plaintiff “demonstrate that the anticompetitive harm of the conduct outweighs the procompetitive benefit.” The appellate court stressed that, although evidence of intent is relevant “to understand the likely effect of the monopolist’s conduct,” when assessing the balance between the anticompetitive harm and the procompetitive effect, the trial court should focus on the “effect of [the exclusionary] conduct, not the intent behind it.”
So, Microsoft were still illegally attacking middleware even though the middleware was still far from realising market place competition against Windows.

Here's part of cpeterson's report of the trial:
"There's your proof right there," says Judge Motz. "Frankenberg says it was basically done, and that implies, *not* done." He went on to reprise Microsoft's argument about the non-existence of the software suite which could have been damaged by Microsoft actions.

No, says Johnson, that's not the case. The portion of QuattroPro which wasn't complete was the Shared Code portion, which depended on the Microsoft APIs. Everything else was done; the core engine was not being substantially changed from the prior version of the product. The delivery of WordPerfect never was dependent upon the delivery of QuattroPro; even the PerfectOffice suite product didn't necessarily depend on QP delivery because they had -- as some development team members had testified -- a backup plan to ship PerfectOffice with a coupon for QP whenever it did become ready.

Well, where is your evidence, Judge Motz wants to know, that WordPerfect was designed to run on something other that Win95? How can you claim this is about competition in the operating systems market, if you're not marketing another operating system? What is that other operating system?

Novell's lawyers appear, by this time, quite flabbergasted. This is all about a version designed *for* Win95, and the judge says that if Novell can't prove that it was designed for something other than Win95, the whole case gets tossed out? Exchange of glances, shrugs, dismayed head-shaking...

Novell puts up a chart showing the numerous different versions of WordPerfect: for Dos, for Win3, Win3.1, OS/2, Unix, etc.

But, says Judge Motz, those are *earlier* versions. The evidence all says you just wanted a Windows 95 product. The developers -- Harral, Richardson, Gibb -- all testified that they loved the new technology. They wanted to marry their new product to it. Show me the new operating system which was going to be competitive, or else I just have to assume that Windows 95 won the market because it had superior technology.

Again Mr. Johnson contradicts Judge Motz, saying that for one thing, the "middleware" capabilities of WordPerfect make it, itself, the OS-replacement; or at least, the thing that would make the OS choice unimportant. Besides, says Mr. Johnson, that isn't a point we have to prove, because it's already been ruled on.

"If I say you have to prove it," says Motz, "then you have to prove it."

"That's why we have a thing called 'the law of the case'," responds Johnson.
One of the witnesses went on to state the problems they had in porting WP to NT and the team set up to do other porting.

Now, Stuart Singer tells us:
The District Court's test for determining harm to competition in the operating systems market departed markedly (and erroneously) from the test applied in the D.C. Circuit in United States v. Microsoft Corp., the law of the case as set as set forth in the District Court’s summary judgment opinion and the Fourth Circuit’s affirmance of the relevant portions of that opinion.

Proper treatment of these legal issues requires an explanation of the tests, how the District Court departed from them, and why those departures were erroneous as a matter of law."
That's just what I have been pointing out!...

And Stuart Singer agrees with me...

I'm just going to go over it, one more time!

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Microsoft did not oppose
Authored by: SpaceLifeForm on Monday, November 12 2012 @ 04:40 PM EST
And why would they when they were confident that
the judge would rule in their favour.

And he did as the track record would predict.

Does that mean that MS has the judge under their thumb?

Not yet, but it does have a fishy smell to it.




---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

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