Microsoft files suit against European Commission

BRUSSELS (Reuters) - Microsoft has filed a new lawsuit against the European Commission, the latest move in its long-running battle against antitrust sanctions imposed by the Commission for abuse of its dominant Windows software.

The lawsuit before the Court of First Instance in Luxembourg is to clear up whether some Microsoft software protocols -- or computer rules of the road -- should be made public or be kept secret as intellectual property.

"Microsoft has filed an application for annulment with the Court of First Instance specifically concerning the issue of broad licences for the source code of communications protocols," a company spokesman said on Wednesday.

The issue arises out of a March 2004, decision by the European Commission finding Microsoft abused dominance of the Windows operating system so it could damage rival makers of work-group servers and rival makers of media players.

Microsoft paid a 497 million-euro fine (US$621 million) and issued remedies on the two issues, but nearly 1-1/2 years later those sanctions have yet to bite.

The lawsuit, filed on August 10 but which only became public on Wednesday, deals only with an aspect of the work-group servers issue.

The biggest makers of rival server software are "open source" providers who, like Microsoft, make server software that runs printing, filing and security tasks for small office groups. They make public the source codes for their products.


Public revelations

Microsoft balked at providing protocols to groups if they planned to make the information public, arguing secret intellectual property would be revealed and lose value.

The Commission took the opposite position but said until a Court of First Instance ruling on Microsoft's challenge of the 2004 general ruling by Brussels -- probably in 2007 -- they would agree to disagree.

"The Commission considers that if the Court of First Instance upholds the March 2004, decision then it should be possible for the protocols that do not embody innovations to be circulated under open-source licences," said spokesman Jonathan Todd.

This view is galling to the open source producers who say they are out of business until the case is decided, and by then it may be too late because the market will have moved on.

Microsoft had worried that the issue of protocols might have been overlooked by the court without its new filing. The suit makes certain the issue will get a special look. It could later be combined with the main case.

"We are taking this step so the court can begin its review of this issue now, given its far-reaching implications for the protection of our intellectual property rights around the world," a Microsoft spokesman said.

In addition to the server issue, the Commission required Microsoft to sell a version of Windows without bundling in Windows Media Player, so computer makers could offer machines with rival players, such as RealNetworks Media Player.

It is unclear how many of those have been sold.

The Commission has also yet to carry out the server remedy. It says it is studying comments from buyers of servers and rival producers about the issue sent to Brussels by July.

A trustee, who is supposed to help enforce the decision, has also yet to be chosen.

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