Sun set-back in Java/MS case

A US court of appeals has dealt Sun Microsystems a set-back in its court battle to show that Microsoft illegally "polluted" the Java programming language in a bid to undermine its success.

In an opinion released today, the US Court of Appeals for the Ninth Circuit agreed with Microsoft's contention that a lower court erred when it granted Sun a preliminary injunction in the case. The injunction, awarded in November 1998, prevented Microsoft from using a version of Java in its software that wasn't fully compatible with Sun's.

At the same time, however, the appeals court allowed that Sun has amassed "significant evidence" in its case against Microsoft, and basically upheld the lower court's opinion that Sun is likely to prevail in the case based on its merits. What the appeals court is looking for is an explanation from the lower court as to the legal grounds on which it granted Sun the injunction.

The "mandate" issued by the appeals court will take 21 days to take effect, in which time Sun will ask Judge Ronald Whyte of the California District Court in San Jose to act speedily in order to ensure that the injunction doesn't lapse, said Lloyd "Rusty" Day, chief outside counsel for Sun.

If the injunction does lapse, Microsoft will be legally entitled to revert to using the version of Java in Windows 98, Internet Explorer, and its development tools that Sun says is incompatible, said Microsoft spokesman Adam Sohn.

"We're not at this time planning any substantial changes to our products. We will continue to support (Sun's version of Java) in our products, at least for now," Sohn said.

Microsoft views the appeals court's decision as "a positive step in a long case," he added, reiterating that the company believes its use of Java hasn't violated any laws.

Part of the disagreement between Sun and Microsoft centres around whether Microsoft's alleged behaviour amounts to copyright infringement, as Sun contested, or whether it boiled down to a contract dispute, as Microsoft argued.

Judge Whyte determined it was an infringement case, which in legal terms entitled Sun to a claim of "irreparable harm". It was partly on that basis of irreparable harm that Whyte granted Sun the preliminary injunction. The appeals court said Whyte never fully explained his reasons for treating the case as an infringement lawsuit, and on that basis returned his decision for further explanation.

"We agree with Sun that significant evidence supports the district court's holding that Sun is likely to prevail on its interpretation of the language of the agreement and to prove that Microsoft's conduct violated it," Judge Mary Schroeder wrote in the appeals court's majority opinion.

"We agree with Microsoft, however, that the district court should not have invoked the presumption of irreparable harm applicable to copyright infringement claims," without clearly spelling out its reasons, Schroeder wrote.

Sun also accused Microsoft of unfair competition under California law. The district court entered an injunction on that claim solely on the basis of Microsoft's past conduct, the appeals court said today.

"Microsoft correctly contends that under California law an injunction must be based on the prospect of future conduct. We therefore also vacate the injunction insofar as it relates to the unfair competition claim and remand for consideration of that issue," the appeals court said.

Sun filed its lawsuit against Microsoft back in 1997, accusing the software maker of using an impure version of Java in its products in order to undermine Java's promised "write once, run anywhere" capabilities. Microsoft maintains it was within its legal rights to make changes to the version of Java it used in its products, and said its intention was to allow customers and developers to take advantage of features specific to the Windows operating system.

A trial date for the lawsuit has not yet been set.

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James Niccolai

PC World

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