(continued from previous page)

IV.

Section IV(E) arose from a 1993 complaint filed with the Directorate General IV of the European Union ("DG IV") (the principal competition authority in Europe). Novell, a rival software vendor, alleged that Microsoft was tying its MS-DOS operating system to the graphical user interface provided by Windows 3.11. Before the introduction of Win- dows 95, which integrated the two, Microsoft marketed the DOS component and the Windows component of the operat- ing system separately, and Windows 3.11 could be operated with other DOS products. But Novell, which marketed a

__________
the district court's findings as to the parties' intent are reviewed deferentially, i.e., reversed only for clear error. See, e.g., NRM Corp. v. Hercules, 758 F.2d 676, 682 (D.C. Cir. 1985). This court, however, has regularly engaged in de novo review of district court interpretations of concededly ambiguous provisions which the par- ties sought to clarify with evidence from outside the decree itself. See, e.g., United States v. Western Electric Co., 12 F.3d 225, 229, 231 (D.C. Cir. 1993) (announcing de novo review despite admitted ambiguity); United States v. Western Electric Co., 900 F.2d 283, 293, 296 (D.C. Cir. 1990) ("Triennial Review") (same); see also id. at 294 (characterizing issue as "pure question of law"). Nor does the Supreme Court's opinion in ITT, which relies on the presence of ambiguity to distinguish Armour, see ITT, 420 U.S. at 238 & n.11, give any indication of deference. Of course, de novo review of legal analysis is in principle compatible with deference to factual findings. See Triennial Review, 900 F.2d at 293-94 (explaining that "aside from fact-finding, we owe no deference to the district court's decisions"); North Shore Laboratories Corp. v. Cohen, 721 F.2d 514, 518-19 (5th Cir. 1983) (reviewing de novo while also noting deference to factual findings of parties' intent). This mixed ap- proach may be the correct one, although the centrality of intent would often make the deference swallow the de novo review, a result our cases do not seem to contemplate. But here it would amount to de novo review anyway, as the district court made no findings of fact as to intent to which we could defer.

competing DOS product, DR-DOS, complained that by means of specific marketing practices--particularly "per processor and per system licenses," J.A. 754--Microsoft was creating economic incentives for OEMs to preinstall MS-DOS as well as Windows 3.11, thereby using its power in the market for DOS-compatible graphical user interfaces (where it com- manded a near 100% market share) to affect OEM choice in the DOS market.8 J.A. 839-48.

During June 1994 negotiations with the Department, Mi- crosoft proposed the possibility of a joint settlement, and representatives of DG IV participated in meetings in Brussels and later in Washington, D.C. On July 15, 1994, the three sides reached agreement and Microsoft and the Department signed a stipulation agreeing to entry of the consent decree, including s IV(E). Both Microsoft and the Department char- acterize s IV(E) as an "anti-tying" provision.

Microsoft and the Department engage in a brief battle over the extent to which antitrust law may be relevant to this dispute. Without wasting time on the parties' somewhat exaggerated positions, we can simply say that Microsoft is clearly right that the decree does not embody either the entirety of the Sherman Act or even all "tying" law under the Act, and the Department is equally right to point out that the consent decree emerged from antitrust claims, unresolved though they were, so that we must keep procompetitive goals in mind in the interpretive task.

As Armour makes clear, however, an antitrust consent decree cannot be read as though its animating spirit were solely the antitrust laws. "[T]he decree itself cannot be said to have a purpose; rather the parties have purposes, general- ly opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties

__________
8 The indirect nature of the alleged tie may explain why s IV(E)(i) bars an agreement whose terms are "expressly or impli- edly conditioned upon ... the licensing of any other Covered Product."

have the bargaining power and skill to achieve." 402 U.S. at 681-82.