Anti-competitive? Not beyond reasonable doubt.

The U.S. Justice Department on Wednesday conceded that it settled with Microsoft in part because trustbusters failed to prove part of the basic theory of the antitrust case.

In his presentation before U.S. District Judge Colleen Kollar-Kotelly, Justice Department lead attorney Philip Beck said that Microsoft was able to hold on to a monopoly in Intel-based operating systems only through anti-competitive acts. But the government was not in a position to make that argument stick, he said.

"We tried very hard the first time around, and we were not able to do it," he told the court. "The causation issues"--actually proving that point about anti-competitive acts--"would have been an uphill battle that would likely have been resolved against us."

The Justice Department and a number of state attorneys general in November reached a deal to settle their antitrust case against the software titan. Nine other states declined to join the settlement and are pursuing their antitrust efforts along a separate track. Hearings on the continuing litigation are scheduled for later this month.

Both Beck and Microsoft attorney John Warden argued that the proposed settlement is in the public interest, and Warden agreed that the government got as much as it could.

"Without causation, there's nothing to remedy," Warden said. Moving ahead with further litigation to determine a remedy--that is, penalties against Microsoft--would not have gotten the government anything more, he said. "One doesn't get two bites of the apple."

The settling states are scheduled to make presentations later Wednesday. A number of third parties also are scheduled to make 10-minute presentations to the court, among them the American Antitrust Institute, telephone company SBC Communications and the ProComp trade group. AAI receives funds from Microsoft competitor Oracle, while ProComp is backed in part by AOL Time Warner, Oracle and Sun Microsystems.

Ding Ding: Methinks this is merely a round to Microsoft.... the fight continues.

News source: ZDNet News