NEW YORK (CNNfn) - As the U.S. Government limbers up for what promises to be an epic mud-slinging match with Microsoft Corp., it will be following in a long line of antitrust battles past -- battles more often lost than won.
And not since President Theodore Roosevelt wielded the cudgel of the Sherman Anti-Trust Act in 1911 to dismember Standard Oil, forever changing America's business landscape, have the stakes been so high, analysts say.
For John D. Rockefeller Sr. then, as for Bill Gates now, the issue was essentially whether the federal government had a legal right to set limits on the commercial power one corporate helmsman could accumulate. For both men, the answer was resoundingly no.
Eighty-seven years later, Roosevelt's signal triumph over Standard Oil resonates so forcefully for the simple reason that the government has been at such pains to duplicate the feat ever since.
In the last big anti trust case, in 1982, President Ronald Reagan broke up the AT&T telephone monopoly, spawning a fiber-optic constellation of seven smaller Baby Bells.
Nearly a decade earlier, in a lesser known showdown, a federal court ruling in a case entitled the United States v. Otter Tail Power yielded a decision that effectively set a precedent compelling electric power and telephone companies to provide access to competitors.
In 1975, the Federal Trade Commission prevailed over Xerox Corp. in a case that ultimately allowed competitors to license Xerox's products. And in another highly-touted case, IBM survived an anti-trust suit in the 1980s only to be flung headlong into grueling battle with a galaxy of new and nimble competitors.
But the government's victory parade ends there.
Count the successes on one hand
"You can count on one hand the big monopolization success stories; you can count on more than one hand the failures," said William Kovacic, a professor at George Mason University Law School. Kovacic gave the government a "less than 50-50" chance of prevailing in its current antitrust suit against Microsoft - yet only if it moves with haste.
"In the modern era, these cases have been very hard to win and the government's track record is very mixed," Kovacic warned.
Other antitrust observers contend that the current round of government trust-busting differs in significant ways from anything that preceded it, and this may complicate the outcome.
"This is the first time in 20 some years that the government has filed a major monopolization case," said Spencer Waller, an associate dean at Brooklyn Law School who specializes in antitrust.
With IBM, AT&T, or even Standard Oil, Waller noted, the government was seeking the same thing: a fundamental change in the structure of the targeted companies' businesses. That objective was achieved when the Supreme Court forcibly splintered Standard Oil - a huge trust that dominated oil, railroads and sugar - into 30 smaller companies.
In their face-off with Bill Gates, Waller argued, antitrust regulators are seeking a wholesale shift in the software firm's behavior. This may make the case less aggressive in nature, he continued, yet it also makes it more complicated, since behavior is a highly subjective notion that is subject to change on a moment's notice.
More suits to come?
John Gardner, an antitrust analyst with Schwab Washington Research Group predicted that the government lawsuit "will take years to finally resolve."
The government's current suit focuses primarily on Microsoft's Internet Browser, a proprietary program that enables users to navigate the World Wide Web. The government's suit accuses Microsoft of using its dominance in the operating software market to unfairly maintain a monopoly and crowd out potential competitors.
But Gardner foresees other lawsuits against Microsoft in the future as new technologies -- say for speech recognition -- emerge, triggering complaints from rivals who feel excluded.
In the face of the government onslaught, Microsoft has fought back with forceful oratory, asserting that the government's suit amounted to nothing new under the sun.
"In many ways, the lawsuit is really just a repeat of the lawsuit the government filed last October," William Neukom, Microsoft's senior vice president for legal affairs, said Monday afternoon.
"We believe that the government was wrong to attack innovation last year; we think that the government is wrong to attack innovation today."
Microsoft's showdown with Washington extends beyond simply trying to stake out the moral high ground. The firm's proponents point to the recent upswell of mergers and acquisitions across the world to bolster their contention that Microsoft has been unfairly singled out for excoriation.
Mergers have multiplied almost exponentially since the early 1990s. Last year, more than 10,700 merger deals were announced in the United States alone, with a total value of $919 billion, according to Securities Data Company. Four of the top 10 deals in history have been announced in the past 12 months.
The trend has spawned a return to active trustbusting by the government, and, along with it, a more spirited fighting stance in the ranks of government regulators.
Tyler Baker, a partner with Carrington, Coleman, Sloman & Blumenthal, who worked as an antitrust lawyer in the Reagan administration, predicted it is "not going to be very difficult" for the government to prove that Microsoft is a monopoly. The case could hinge on the assertion that Microsoft controls 90 percent of the operating software market.
And that, Baker said, "is probably going to lead pretty directly to the conclusion that they (Microsoft) have that kind of power."
So, case closed? Hardly. "Microsoft will inject the notion that even if it has monopoly power, it has used that power in a fair way that benefits consumers."
Or, as Gates himself put it Monday: Microsoft is "hard at work making computers more affordable, easier to use, and accessible to more people."
--By staff writer Douglas Herbert