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Novell, Inc. v. Microsoft Corp.

United States Court of Appeals for the Tenth Circuit

September 23, 2013, Filed

No. 12-4143


 [*1066]  GORSUCH, Circuit Judge.

A straggler of a case, this one drags us back twenty years. To a time before the dot-com boom busted and boomed again, a time when Microsoft was busy amassing a virtual empire — if sometimes in violation  [**2] of the antitrust laws. Long since found liable for a rich diversity of antitrust misdeeds in the 1990s, this case calls on us to decide whether Microsoft back then committed still another, as-yet undetected antitrust violation — this time at Novell's expense.

Novell's suit against Microsoft finally found its way to trial in 2011 but the jury couldn't manage a verdict. Reviewing the record for itself after trial, the district court decided it could fairly admit of only one conclusion: Microsoft's conduct did not offend section 2 of the Sherman Act. So the district court entered judgment as a matter of law, see Fed. R. Civ. P. 50, a decision Novell now asks us to overturn but one we find we cannot. Novell complains that Microsoft refused to share its intellectual property with rivals after first promising to do so. But the antitrust laws rarely impose on firms — even dominant firms — a duty to deal with their rivals. With respect to Novell at least, Microsoft did nothing unlawful.

* * *

Despite a long trial — 8 weeks — and a voluminous record — 16,696 pages — the facts relevant to this appeal are straightforward enough. Looking at them as favorably to Novell as the record allows, they tell  [**3] us this much.

By the mid-1990s Microsoft had become the leading provider of Intel-compatible personal computer operating systems. An operating system amounts to the computer's core software — software that allows the everyday user to take advantage of a computer's functions. Users often rely on an operating system to open and close other applications — word processors,  [*1067]  spreadsheets, calendars, or the like. Those applications often depend on the operating system, too, drawing on the operating system's code to read and write files on the hard drive, draw images and text on the screen, or transmit information. In 1981, Microsoft introduced MS-DOS, an operating system that required users to type commands on the keyboard. Beginning in 1990, the company developed successive versions of its Windows operating system, one that featured a "graphical user interface" allowing users to issue commands simply by pointing and clicking a mouse on visual icons. Windows proved a huge commercial success for Microsoft, quickly becoming by a wide margin the most popular operating system on personal computers.

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731 F.3d 1064 *; 2013 U.S. App. LEXIS 19463 **; 2013-2 Trade Cas. (CCH) P78,523; 2013 WL 5303259

NOVELL, INC., Plaintiff-Appellant, v. MICROSOFT CORPORATION, Defendant-Appellee.

Subsequent History: US Supreme Court certiorari denied by Novell, Inc. v. Microsoft Corp., 2014 U.S. LEXIS 2960 (U.S., Apr. 28, 2014)

Prior History:  [**1] Appeal from the United States District Court for the District of Utah. (D.C. No. 2:04-CV-01045-JFM).

Novell, Inc. v. Microsoft Corp., 2012 U.S. Dist. LEXIS 98710 (D. Utah, July 16, 2012)


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Antitrust & Trade Law, Sherman Act, Claims, Scope, General Overview, Monopolization Offenses, Defenses, Regulated Practices, Monopolies & Monopolization