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Supreme Court Denies Novell Its Last Appeal in Microsoft Antitrust Suit

• By Kurt Mackie
• April 28, 2014

The long legal saga between Novell and Microsoft reached its end on Monday, when the U.S. Supreme Court declined to hear Novell's appeal.

The antitrust dispute goes all of the way back to Windows 95, when WordPerfect was one of the leading word processing programs. In its heyday in 1990, WordPerfect for DOS constituted about half of the word processing market. At the end of 1994, WordPerfect on DOS and Windows represented 36 percent of the word processing market. However, Microsoft tipped the scales in Word's favor when it released Windows 95 on August 24, 1995.

The Supreme Court declined (PDF) to hear Novell's appeal (Novell v. Microsoft, 13-1042), but no reason was given for the denial. Novell had filed its Supreme Court appeal after losing an appeal at the 10th Circuit Court of Appeals in Denver in September.

The Supreme Court's notice that it was declining to hear the appeal indicated that Chief Justice John Roberts did not participate in the decision. Roberts may have recused himself because he provided legal counsel in the Justice Department's case of United States v. Microsoft, which was an antitrust dispute concerning Microsoft's use of its Windows monopoly to dominate the browser market. Back then, Netscape was complaining of being squeezed out by Microsoft's pairing of Internet Explorer and Windows.

The Novell v. Microsoft case was a complaint about Microsoft deliberately withholding Windows technical information in order to thwart its competitors in the applications market. The case brought to light an Oct. 3, 1994 memo from then-Microsoft CEO Bill Gates, who indicated that Microsoft should withhold namespace extension APIs in Windows 95 from its competitors, WordPerfect and IBM, in order to gain market advantage for Microsoft Word.

However, that "smoking gun" memo wasn't enough for Judge J. Frederick Motz of the Utah Central Division Court. He said in the case that "it is well established that a monopolist generally has no duty to cooperate with its competitors."

Judge Motz did not think that sort of behavior violated the Sherman Act. Instead, it might be considered to be "aggressive conduct" by Microsoft.

The WordPerfect company was acquired in 1994 by Novell. Later, in 1996, Corel Corp. acquired the WordPerfect company, although Novell held onto the WordPerfect application. Novell itself was later picked up by Attachmate Corp. in late 2011.

According to reporting by Bloomberg, Novell is also part of privately owned Wizard Parent LLC. An SEC statement for Novell indicates that Wizard Parent LLC owns Wizard Holdings Corp., which in turn owns Attachmate and NetIQ Corp.