In several places in her ruling, Pechman said the plaintiffs' expert witness, University of Washington economist Keith Leffler, did not, or was unable to, come up with any data to support the price inflation theory. In earlier testimony, Leffler had pegged the possible damages to Microsoft at US$8.5 billion.
"Dr. Leffler did not attempt any regression analysis, much less an econometric analysis of the impact of 'Vista Capable' on demand," Pechman said. "It is ... critical to Plaintiffs' theory of proof to isolate Microsoft's purportedly deceptive efforts to increase demand from promotions OEMs had in the run up to the holiday season."
In Pechman's view, Leffler failed to do so. "It does not appear as if Dr. Leffler tested this assumption against any real pricing data for PCs, nor did he survey consumers of non-Premium Ready PCs," she said.
Wednesday's rulings did not all go Microsoft's way, however, as Pechman rejected Microsoft's second motion, which was a request for summary judgment on whether the Home Basic edition can fairly be called "Vista."
The idea that Home Basic was not, in fact, a "true" version of Vista has been a key all along to the plaintiffs' case. The original lawsuit, filed in April 2007, accused Microsoft of deceiving consumers by letting PC makers slap the "Vista Capable" sticker on PCs when many of those machines could run only Home Basic. The plaintiffs argued that because Home Basic lacked many of the flashy features Microsoft had promoted in Vista -- most importantly, the Aero graphical user interface -- it was not really Vista.
Microsoft claimed it had repeatedly told users and the press that not all editions of the operating system were alike, and cited the similarities between Home Basic and the other versions.
Pechman rejected Microsoft's reasoning. "Simply put, Microsoft's argument misses the issue. The question is not whether Basic can be called 'Vista' based on computer code similarity or whether Microsoft as a software developer has the right to offer multiple permutations of its product; it is whether Microsoft's use of the 'Vista Capable' designation had the capacity to deceive," she said.
"In this sense, Microsoft's internal communications raise a serious question about whether customers were likely to be deceived by the Windows Vista Capable campaign," she added, referring to insider e-mails that were revealed during the case's discovery process.