I think, however, he could make and win a smaller point, which is that Microsoft has lots of choices about how to arrange their files and programs, and that any arguments that Microsoft might make about having to do something one way or another are probably bogus.
They could make that argument, but without some idea of what are the relative costs and benefits of all the various choices, and being able to compare them in a meaningful way, they would probably lose, which is precisely my point.
Making such a meaningful comparison, and therefore a valid decision about what is the *best* technical solution for Microsoft to choose among its many choices, furthermore, is not possible without having meaningful information about all of the costs of the various factors of production (meaning opportunity costs, since those are what determine prices) and relative values to end users of all of the various uses to which the finished products, in each of their various configurations, might be put.
To make these comparisons, if they can be made at all, I think an expert witness would need to have to have economic qualifications that Farber doesn't have.
And, the impossibility of performing this task may be one very compelling reason why the Court of Appeals will only require that Microsoft present a "plausible" technical justification for its choice among the various technical alternatives, not that it prove it made the best choice, or even a better one. |
