Legal and Economic Analysis of a Transatlantic Antitrust Case
Edited by Luca Rubini
Chapter 3: Victa Placet Mihi Causa: The Compulsory Licensing Part of the Microsoft Case
Ian S. Forrester QC* INTRODUCTION 1. On 17 September 2007, the 13 judges of the Grand Chamber of the European Court of First Instance (CFI) rendered judgment in Case T-201/04 Microsoft v Commission.1 A few days before the judgment, a number of the advocate protagonists in the case who, at that moment, had no idea what the CFI would do, gathered at a conference organized under the auspices of the International Bar Association in the European University Institute, Fiesole. The paper which I presented on that occasion set forth the principal themes presented by that portion of the case as to which I had the honour of serving as the advocate of Microsoft. JeanFrançois Bellis, with whom I argued the case, is addressing the ‘product integration’ part of the case in Chapter 4 (with Tim Kasten). The Microsoft Decision2 involved two alleged abuses. One related to the design of the Windows operating system which drives the great majority of personal computers, and the lawfulness of incorporating additional functionalities therein. The other related to the nature and extent of Microsoft’s duty to reveal details of how its server products interact, notably as regards client-to-server and server-to-server communications. Each alleged infringement in a sense concerned whether Microsoft, as an * The opinions expressed are wholly personal. The remark in the title is found in Lucan’s literary work Pharsalia, adapting a remark made by Marcus Porcius Cato, which may be translated as ‘even though my case was defeated, I found it persuasive’. 1...
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