It’s day 4 of the Microsoft European hearing and today the Judges asked some really great questions about interoperability. Judge Cooke, whose Irish accent comes and goes, really cut through the blather on both sides of the argument and got to the core of the issue. The basic issue is that in 2000, Microsoft figured out how to create a distributed computing cluster that would work really well with thousands of computers (in the Court proceedings everyone is calling this the “blue bubble” because it is a cluster of computers that can only talk with other computers using “identical logic” and Microsoft outlined it in a graph colored blue). This is in contrast to other vendors like Sun Microsystems that can only offer a solution using four computers and Novell that can only do it with 150. Microsoft’s competitors would really like to be able to see and copy Microsoft’s patented invention, as they have failed to find the secrets through reverse engineering. The European Commission in 2004 was convinced that servers made by companies such as Sun Microsystems and IBM have trouble “interoperating” with Microsoft servers because Microsoft is not sharing the essential language needed to talk between computers. This sounds like a convincing argument, but it’s not an accurate representation of the issue and completely ignores third-party products that already exist to facilitate server discussion. Indeed, as the Court heard, most of the complaining companies brag in marketing materials that their servers can interoperate with Microsoft.
So, what is really going on? As Microsoft’s attorneys and other American representatives told the Court, the intellectual property that Microsoft’s rivals are trying to get their hands on does not act like a language, but rather like DNA. That would give Microsoft’s rivals the ability, not to talk with them, but to clone them–a dangerous development that would be costly in terms of profits for Microsoft and for the future of any company that relies on intellectual property for its livelihood.