Holdout juror describes 'wonderful, difficult' experience in Novell-Microsoft trial

SALT LAKE CITY — But for one juror, Novell might be enjoying the spoils of victory over Microsoft.

The phrase "but for" came up a lot in Novell attorney Jeff Johnson's arguments before the seven-woman, five-man jury that ended up deadlocked Friday after two months of testimony and three days of deliberation in federal court.

Provo-based Novell sued Microsoft in 2004, alleging Microsoft pulled a "bait and switch" to give its software for Windows 95 an anti-competitive edge. It sought $1.3 billion in damages. Though U.S. District Judge J. Frederick Motz declared the trial over, both companies expect future court battles in the prolonged case.

Jurors had to determine whether a decision Microsoft co-founder Bill Gates made 17 years ago to withdraw support for a tiny piece of published computer code kept Novell from getting its word processing products on the market to coincide with the launch of Windows 95. Novell intended to use the code in its WordPerfect software for Windows.

But for that decision, Johnson told the jury in closing arguments, Novell's PerfectOffice suite would have been ready to go.

"WordPerfect would have been a game changer in the but-for world," he said.

Eleven of the 12 jurors apparently saw it that way. Corbyn Alvey did not. His holdout hung the jury.

"There was a lot of speculation in this but-for world, and we had some evidence. But it's hard to draw inferences to a but-for world with only so much evidence," said the 21-year security guard from Magna.

"The problem was there was so much differing in the understanding of the evidence and what could have happened in the but-for world and what happened in the real world."

Alvey, whose computer training consists of using word processing, spread sheets and presentations software, said he and his fellow jurors understood the case's technical complexities. Both legal teams, he said, made good arguments and presented their material — hundreds of emails, memos and corporate documents — clearly.

Jury foreman Carl Banks said he tried his hard to get a verdict. Ultimately, he handed the judge a note reading, "I am sorry, very sorry we cannot come to an accord. I've done the best I knew how."

After the trial, jurors and lawyers for both sides shook hands and some embraced. Several jurors were in tears.