Bristol Files Reply Brief in Antitrust Suit Against Microsoft

(October 6, 1998)  Bristol Technology, Inc., filed a large reply yesterday to Microsoft's opposition to its motion for a preliminary injunction.  Bristol's claim that Microsoft has violated antitrust law was supported by sworn testimony from an officer of Microsoft's competitor Sun Microsystems.

"Our reply brief verifies Bristol’s position in the initial preliminary injunction brief," said Keith Blackwell, Chairman and President of Bristol Technology, Inc., in a press release. "In filing this reply brief with the court, we are simply reiterating our belief that Bristol has a  strong case, which we expect to win."

Bristol Technology filed its original Complaint against Microsoft in federal court in Connecticut on August 18, alleging that Microsoft violated the Sherman Antitrust Act by allegedly refusing to provide Bristol with source code to Windows NT 4.0 and 5.0 operating system (OS) software.   Bristol makes Wind/U, a product which enables applications written for UNIX OS to run on Windows OS.

Bristol also filed a motion for a preliminary injunction, seeking immediate access to NT source code.  Federal Judge Janet Hall has scheduled October 14, 15, and 19 as the preliminary injunction hearing dates.

In a memorandum filed with the court on September 25, Microsoft alleged that there was no antitrust law violation.  Microsoft further argued that this suit is really contract negotiations by other means.  That is, Microsoft owns Windows NT, and is willing to license access to source code to Bristol, but Bristol has rejected its terms.  Microsoft contends that Bristol is trying to use claims of antitrust law violation to obtain a court order that essentially writes a license contract that Bristol could not obtain through arms length negotiations, and which would give it a competitive advantage over its rival, Mainsoft.

Bristol Technology's reply memorandum filed with the court is under seal.  The version released to the public is heavily redacted, and often incomprehensible, due to the large quantities of deleted materials.

Bristol's brief reasserts that Microsoft has violated Section 2 of the Sherman Act:

"Microsoft is an undoubted and unabashed monopolist. Bristol had the misfortune of being chosen as an unwitting pawn in Microsoft's strategy to coopt UNIX.  If §2 is to mean anything, Bristol is entitled to relief.  If any market is to remain competitive, the Courts must put a halt to Microsoft's tactics including its litigation evasions.  Bristol is faced with almost certain failure if it is not granted preliminary relief."

Bristol also received support from Sun Microsystems.  Sun makes workstations that run on Sun's Solaris OS software, which competes with Microsofts Windows NT.  Solaris is a version of UNIX.  Bristol's Wind/U software, for example, enables applications written for Solaris to run on Windows NT.  Sun Microsystem's Brian Croll submitted a sworn statement that NT was growing in success despite its inferiority to Solaris.  He wrote:

"According to Dataquest, the unit share of new shipments of NT in the server market rose from seven-tenths of one percent in 1993 to an estimated 49 percent this year; and in workstations, the unit share of new shipments of Windows NT grew from less than a tenth of one percent in 1993 to an estimated 43 percent this year. This growth has occurred despite the fact that Windows NT has particular weaknesses as a server and/or workstation."

The reason for this undeserved success, according to Croll, is Microsoft's PC OS monopoly.

"Microsoft’s rapid growth as a supplier of operating systems for servers and advanced workstations is based largely on the enormous number and variety of applications written to run on the Windows application programming interface ("API"). Customers are attracted to Windows because of the availability of low-cost "productivity applications" such as spreadsheets and word processors on the Windows platform. The cost of those applications is a direct result of Microsoft’s overwhelming position in the market for desktop PC operating systems ..."

Croll also asserted, "Wind /U competes with Windows by allowing Solaris to run applications written for the Windows API."