Last week's Alabama federal court ruling enjoining Intel Corp. from engaging in discriminatory practices involving its intellectual property could have some implications for Microsoft Corp. (MSFT) in its ongoing antitrust suit with the U.S. Department of Justice.
The court barred Intel (INTC) from giving advance technical information about new processors to some companies and not others and refusing to license patents on CPU buses to makers of competitive chip sets and motherboards.
But what was most significant about the order was the legal principle on which it was based: the "essential facilities doctrine."
The essential facilities doctrine states that when a dominant company gains control of anything to which others must have access in order to compete (an "essential facility"), it must not deny access to the facility as a way of inhibiting competition. For example, if a company owns all of the railroad tracks in town, it cannot deny access to competitors who need to use the rails.
According to a white paper drafted by the American Committee for Interoperable Systems, the essential facilities doctrine applies as much to intellectual property as to physical property. Hardware and software must interoperate with products from other vendors in order to be "merchantable," so a dominant player that withholds vital information about buses, protocols or interfaces is in violation of antitrust law.
U.S. District Court Judge Edwin Nelson applied this principle in an 80-page ruling in favor of Intergraph Corp., which claimed Intel was pressuring it by threatening to withhold technical information.
The most intriguing aspect of the ruling -- and the one that might have the greatest long-term impact -- is that it is likely to be applicable not only to Intel's microprocessor interfaces but also to (among other things) Microsoft's Windows application programming interfaces and the I20 peripheral interface.
According to James Love, Director of Ralph Nader's Consumer Project on Technology, this is one way in which the U.S. Department of Justice should consider dealing with Microsoft.
"Many programmers believe an essential facilities case is needed, and that the DOJ should seek timely and non-discriminatory disclosure of Microsoft [APIs] to unaffiliated developers ... in order to make the Windows platform more open and less of a weapon against rival software companies," Love said.
The Intergraph decision, said Love, "is evidence that such a case can be litigated and won."
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