Chief Judge Harry Edwards told government attorney Jeffrey Minear that nowhere in the court record did he see where Netscape ever planned to compete with Windows, as the Government had asserted. If Netscape never intended to challenge Windows, there could be no antitrust violation even if Microsoft acted against a perceived threat, Edwards said.
The Court of Appeal also challenged the Government's claim that Microsoft prevented Netscape from distributing its browser. Judges were receptive to Microsoft attorney Richard Urowsky’s claim that 60 million people had downloaded Navigator, rebuffing the Government's case that Microsoft’s use of restrictive contracts and other means prevented Netscape from effectively distributing its browser.
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Because monopoly maintenance is the key issue, the Government’s whole case could collapse if the Appeals Court decides that Netscape posed no competitive threat to Microsoft or that Microsoft's competitive actions did not impede Netscape.
Legal experts now say Microsoft may be in a position to overturn the Justice Department’s original victory. Prior to this hearing, most observers believed the Government would win.