Microsoft rejects Sun’s plea for preliminary injunction in Java case

August 28, 1998 — Sun Microsystems Inc. waived its right to complain about Microsoft Corp.’s alleged breach of Sun’s Java licensing agreement when it accepted a .75 million payment from the software giant for use of the programming language, Microsoft said this week.

Microsoft made its argument in court papers filed in US District Court, Northern District of California, opposing Sun’s request for a preliminary injunction against Microsoft.

Microsoft also argued that granting a preliminary injunction will cause “immense harm” to distributors, retailers, and manufacturers of Microsoft products; to software developers and end users, and to Microsoft itself.

The preliminary injunction would prevent Microsoft from shipping further versions of Windows 98 and certain software development tools that Sun says do not comply with its version of Java.

Sun declined to comment today on the arguments outlined in Microsoft’s filing, an edited version of which was released by Microsoft late yesterday.

In its lawsuit filed in October last year, Sun claimed that Microsoft implemented incompatible versions of Java in at least two of its products in an attempt to derail Java’s fabled write-once, run-anywhere capabilities. Microsoft sees Java as a threat to the hegemony of its Windows operating system because of Java’s ability to run on any software platform, Sun says.

Microsoft denies the accusations and has filed a countersuit against Sun.

Citing a legal precedent, Microsoft said in its filing that Sun’s acceptance of the licensing fee from Microsoft — at a time when it was aware the alleged breach of contract had taken place — cancels its right to claim breach of contract.

“Sun cannot deny that it knew about Microsoft’s alleged breach when it accepted the payment. Sun has waived its right to complain of the alleged breach,” Microsoft said in the filing.

As part of its complaint, Sun says Microsoft’s version of Java does not pass muster with test suites created by Sun to ensure proper implementation of its technology.

Microsoft counters in its court filing that its Java products comply with all the testing suites specified by Sun in the licensing and distribution agreement Microsoft signed. The tests that Microsoft products do not pass were created by Sun after the fact and are not specified in the licensing agreement, Microsoft says.

“Sun does not have unlimited power to force Microsoft to adopt any Sun technology — Java-based or not — just because a test can be devised to check for it,” Microsoft said.

The sides are due to present oral arguments before District Court Judge Ronald Whyte on September 10 in regard to Sun’s request for preliminary injunctive relief.