Sun vs. Microsoft: Sun's attorney burned by Judge
eWeek | at | by Mike
Is Sun Microsystems Inc. really a force in the PC operating system market? That question was the crux of the hearing Thursday before the U.S. Court of Appeals for the Fourth Circuit here. Judge Paul Niemeyer took control early in the hearing in which Microsoft sought to appeal a federal district court ruling that it must ship Java with every copy of Windows the software giant sells. Niemeyer challenged Sun's lead attorney, Lloyd "Rusty" Day, almost immediately when he stood to argue for Sun's case.
"If your concern is about the PC operating system market and your client is not in that market, why do you care?" Niemeyer asked Day after setting the tone with two initial questions about Sun's claims.
"First of all, we are in that market," Day claimed, saying that Sun sells Solaris on the Intel platform.
"Well, the district court judge got it wrong, right?" Niemeyer asked, driving in.
"No, he didn't get it wrong," Day attempted.
Niemeyer then said: "In order to get relief, you have to be injured in the relevant market ..."
As Day continued to struggle to make his point, Niemeyer laid bare the Sun case and cut the Sun attorney short several times. Day argued that Motz based his findings on the fact that the "potential" harm from Microsoft could be deferred by his injunction.
"You just gave it away there!" said Niemeyer said. "A 'potential' competitor-you have to be a competitor there" in the relevant market to be granted relief, the judge said.