One strong point for the government is the test on pricing from [Massachusetts Institute of Technology economics professor] Franklin Fisher, who indicated Microsoft charges prices that are higher than they would be in a competitive market. That's the kind of thing the government wants on appeal.

One overall problem for the government is that after all the e-mail smoke clears, the government has to show where the consumer injury is. It can't just look like the competition has been hurt.

The old story in antitrust cases is that the government wins the battle and loses the war. The question is: What do you get in relief?