Judge Indicates He’ll Back Sun in Java Battle

Sun Microsystems Inc. moved closer to keeping control of Java, the widely used programming language it developed for the Internet, when a federal judge indicated Tuesday he planned to rule against Microsoft Corp. on a key part of the legal battle between the two companies.

U.S. District Judge Ronald Whyte in San Jose wrote that he was planning to rule that Microsoft’s Windows 98, Internet Explorer 4.0 and other software violated Sun’s copyright for Java.

An eventual Sun victory would help it keep Microsoft and other companies from altering Java so that it runs better on some computer operating systems than others. It would be highly unusual for Whyte to change course after issuing the 14-page tentative ruling, legal experts said.

“This is absolutely critical to the success of Java. If they weren’t going to win against Microsoft, it’s pretty much ‘game over,’ ” said Mark Radcliffe, an Internet law attorney at Gray Cary Ware Freidenrich in Palo Alto. “Sun now really does control where Java goes.”

Microsoft executives believed that Java posed a threat to the dominance of its Windows operating system, memos unearthed in the year-old case showed, because software developers could use it to produce programs for all systems at once. Microsoft then developed a version that it called “polluted,” which ran better on Windows, according to the memos. Sun, in turn, filed suit.

Many large technology companies were rooting for Sun, believing that if Java becomes too splintered in its adaptations, it will cease to become a force to rival Microsoft.

But some of the same companies have complained that Palo Alto-based Sun has kept too rigid control over Java’s evolution and dragged its heels in submitting oversight to an international standards group.

If there is a problem for Sun in winning the case, it is that Microsoft will stop supporting Java and could even come up with an alternative, said analyst Rob Enderle of Giga Information Group.

“Sun is winning the battle,” Enderle said. “But my sense is, they are losing the war.”

As expected, Whyte also tentatively found that Microsoft has the right to develop Java technology if it doesn’t rely on Sun’s intellectual property. The judge set a June 24 hearing for final arguments.

“We are pleased for the opportunity to provide additional information to the court,” Microsoft spokesman Jim Cullinan said in a written statement. “It is not appropriate for us to speculate on what the court’s final rulings might be.”

Tuesday’s tentative ruling addresses the same copyright question that led Whyte to issue a preliminary injunction last fall barring Microsoft from shipping Windows 98 and other products that did not pass Sun’s compatibility tests. Although it appealed, Microsoft updated its programs to comply with that injunction.

Whyte wrote in the new filing that since the Microsoft programs didn’t pass Sun’s tests, the Redmond, Wash.-based software giant exceeded its rights under the licensing agreement with Sun. That agreement, similar to those Sun strikes with other software companies, turns over the Java source code for their use.

Microsoft had argued that it had rejected conditions in its agreement with Sun that would have required all of its Java products to pass the compatibility test.

Whyte disagreed, writing that “Microsoft’s extrinsic evidence does not render [the agreement] susceptible to its interpretation and, therefore, fails to raise a triable issue of fact.”

Summary judgments are granted when there is no version of the facts that would support an opposite legal finding, making a trial unnecessary.

“It would be very unlikely,” for Whyte’s final ruling not to echo Tuesday’s draft, said Stanford University law professor John Barton, who has lectured on the Sun case.

Both Barton and lawyer Radcliffe suggested that Microsoft might now be tempted to settle with Sun.

Sun spokeswoman Lisa Poulson said she couldn’t comment on any negotiations.

Still pending before Whyte are motions by both sides for summary judgment on other issues in the case, including trademark infringement and unfair trade practices.

If everything isn’t resolved through those motions, a trial could be held on the remaining facts as well as on damages.