Microsoft countersuit against Sun comes as no surprise

New York (10/27/97) — Microsoft Corp.’s countersuit today to Sun Microsystems Inc.’s lawsuit alleging breach of contract regarding the companies’ Java licensing agreement comes as no surprise to industry watchers.

Microsoft filed its response to Sun’s lawsuit in U.S. District Court in San Jose, CA. It charged Sun with breach of contract related to its licensing of Sun’s Java programming language.

The countersuit specifies that, contrary to the agreement between the two companies, Sun failed to deliver technology that passes Sun’s own test suites and has failed to provide a public set of test suites, according to Microsoft officials.

Microsoft and Sun have been verbally sparring since before October 7, the date Sun announced its lawsuit in which Sun charged Microsoft with breach of contract regarding Java licensing. Among other charges, Sun stated that Microsoft’s implementation of Java in its Internet Explorer (IE) 4.0 Web browser did not meet the terms of the license requirements.

“The countersuit is pretty standard operating procedure, ” said Jim Balderston, an analyst with Zona Research Inc. in Redwood City, CA. “It gives them the ability to recover costs if the original suit is found to be without merit,” Balderston said. “It also gives original counsel [for Sun] something to think about.”

The basis of Microsoft’s response is that IE meets the terms of the Sun licensing requirements, and passes the suite of tests delivered to Microsoft by Sun, according to Cornelius Willis, director of platform marketing for Microsoft.

As such, much of the case rests on a factual dispute regarding whether IE does or does not pass the Java compatibility test suite, according to some analysts.

“A lot of software gurus have said that Microsoft is making its own special brand of Java, but in terms of the facts of the case, it’s difficult to say whether Microsoft breached the contract without running the Explorer object code through the suite,” said Bob Schneider, head of the intellectual property department at Chapman and Cutler, a law firm in Chicago.

Schneider drew an analogy between the Microsoft-Sun dispute and patent infringement cases. “A competitor will design around a patent without infringing on it — the analogy is that Microsoft could have made Explorer compatible enough to pass the test suite but different enough to make their own commercial product,” he said.

But what was supposed to be included in the test suite may be open to interpretation, said Ted Schadler, a software analyst with Forrester Research Inc. in Cambridge, MA.

“If you read the contract, Microsoft does not have to deliver classes [class libraries of software] Sun delivered after the contract,” said Schadler. Specifically, Schadler noted that Sun has charged that Microsoft excluded the Java Native Interface (JNI) and the Remote Method Invocation (RMI), which lets Java applets communicate with each other, from the version of JDK 1.1 included in IE 4.0.

“What you then have to ask is whether JMI and RMI are classes in addition to Java or part of Java itself,” Schadler said.

Other analysts said the contract is crystal clear, however.

“The intent of the contract is clear: Its purpose is to let people use Java in their products any way they want as long as they remain compatible with Sun’s specification for Java,” said Jeff Kinz, research manager for the Internet and application development tools group at International Data Corp. in Framingham, MA.

But whether or not the contract is open to interpretation, Kinz stressed, a protracted suit most likely will help Microsoft and hurt Sun.

“It serves Microsoft’s purpose to drag this suit out,” said Kinz. “The longer Explorer is out without a compatible version of Java, the more Java corruption can continue…and the more Microsoft can leverage its dominance of the desktop to define its own version of Java.”

Sun declined to comment immediately on the Microsoft claims.

Sun Microsystems Inc., based in Mountain View, CA, can be reached at (415) 960-1300, or at https://www.sun.com. Microsoft Corp., based in Redmond, WA, can be reached at (206) 882-8080, or at https://www.microsoft.com.