Judge Voices Skepticism on Order Against Microsoft

A federal appeals court judge on Thursday expressed serious doubts about a lower-court order requiring Microsoft Corp. to incorporate Sun Microsystems Inc.'s Java programming language in the Windows operating system.

Judge Paul Niemeyer, one of the three judges hearing Microsoft's appeal, sharply questioned whether the must-carry preliminary injunction was needed to prevent imminent harm to Sun and the Java program while a trial was conducted.

Niemeyer, who dominated questioning during an hour of presentations from both sides, also criticized the legal basis of the injunction issued late last year by U.S. District Judge J. Frederick Motz in Baltimore.

The injunction, put on hold by the appeals court for now, was based on findings that Microsoft was illegally maintaining a monopoly via the Windows operating system for personal computers.

But Niemeyer said Java was "middleware" rather than an operating system and the injunction should have rested on a monopoly extension claim.

Sun attorney Rusty Day tried to argue the distinction was not consequential under antitrust law, and in any case, Sun sold server software that directly competed with Windows.

"If that's your theory ... it seems to me the District Court missed it all," Niemeyer said.

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