The European Commission and its allies continued their robust defense of the 2004 antitrust ruling against Microsoft on Wednesday and Thursday morning, tearing apart arguments that the decision trampled on the company\u2019s intellectual property rights.In a three-and-a-half-hour monologue that sent many observers in the crowded courtroom to sleep Wednesday afternoon, Anthony Whelan, the commission\u2019s top lawyer arguing the interoperability side of the case, dismissed claims by Microsoft that its trade secrets amounted to intellectual property.He also tried to toss out Microsoft\u2019s arguments that the antitrust ruling effectively forces the company to make four patent-protected inventions inside Windows public property.Whelan said this argument was invented at the last minute, when the commission was on the point of ruling against Microsoft in March 2004, six years after its antitrust investigation began.Microsoft mentioned one patent in passing during hearings in Brussels in late 2003, and officially added it to its legal arguments in January the following year, two months before the historic ruling that imposed a fine of 497 million euros (US$662 million) on Microsoft and forced it to change its business practices in Europe, Whelan said.\u201cMicrosoft\u2019s story changed. Only here [immediately prior to the ruling] did it become specific about its intellectual property rights claims,\u201d Whelan said. The other three patents were first mentioned in the company\u2019s submissions to the Court of First Instance in preparation for this week\u2019s appeal.\u201cIn January 2004, Microsoft cited one patent; now it talks about four. The patents question seems to be a pretext for Microsoft to justify its position [after the event],\u201d Whelan said.In a highly complex legal argument, Whelan explained how trade secrets fall short of intellectual property. Patent and copyright claims must be scrutinized by independent bodies before they are granted protection, whereas trade secrets are not, he said.Yet the bulk of Microsoft\u2019s intellectual property argument revolves around the trade secrets inside Windows that the commission wants the company to reveal. The 2004 ruling ordered Microsoft to supply the necessary interoperability information to competitors in the workgroup server market, to allow them to build servers that work as well with Windows on personal computers as Microsoft\u2019s own server software.\u201cTrade secrets are not entitled to the degree of protection that Microsoft claims,\u201d Whelan said.Microsoft Wednesday said that in order to force a company to reveal its intellectual property, antitrust regulators must demonstrate that such a move is indispensable to the workings of the whole market. It argued that this isn\u2019t the case in the server software market because Linux-based server systems have succeeded in carving out a niche in the market, despite having no access to the Windows protocols the commission wants Microsoft to reveal.Whelan countered this argument by pointing out that the indispensability standard, set during earlier antitrust cases, does not need to prove that all competition in the market would be eliminated without the information being made public.\u201cNot the total elimination, but effective elimination of competition needs to be demonstrated. So niche players can exist, as they do in almost any market,\u201d he said. \u201cThe mighty Linux, or so you would be led to believe, my lords,\u201d cannot be cited as proof that the information isn\u2019t indispensable for effective competition to exist, he told the 13 judges hearing Microsoft\u2019s appeal.He also shot down Microsoft\u2019s claim that the information the commission wants it to reveal would allow competitors, like Sun Microsystems, to effectively start building Windows server systems, or clones of them.If this were the case, Whelan said, then Microsoft is itself guilty of encouraging the cloning of its own servers, because before it managed to build its own server software at the end of the 1990s, it allowed Sun\u2019s Solaris access to the same information it later chose to hold back.Reinforcing his argument, Whelan cited Steve Ballmer, Microsoft\u2019s chief executive, who said at the time of its antitrust settlement with Sun Microsystems in 2004 that the deal, which included granting Sun access to the necessary protocols, \u201cwouldn\u2019t lead to less innovation but to more innovation.\u201d\u201cIt appears that alarmist claims of cloning are for your benefit only, my lords,\u201d Whelan told the judges.Whelan\u2019s points were reinforced Thursday morning by its ally the European Committee for Interoperable Systems. Thomas Vinje said the cloning argument, which Whelan at one point jokingly referred to as \u201cthe attack of the clones,\u201d is groundless.\u201cThe only thing Microsoft is being told to disclose is interoperability information, which is a very small portion of the protocols in Windows server software. You can\u2019t clone Microsoft\u2019s server system just with the interoperability protocols,\u201d Vinje said.Later Thursday morning, the judges will question the two sides, which is likely to take up most of the day.-Paul Meller, IDG News ServiceFor related news coverage, read Microsoft Lashes Out at EU Server-Code Ruling and Microsoft Appeal Moves On \u2026 With a Bit of Agreement.Check out our CIO News Alerts and Tech Informer pages for more updated news coverage.