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The proposed class-action suit, filed in April, alleges that the promotions were deceptive because, in many cases, the PCs in question were only able to run Windows Vista Home Basic -- without the Media Center interface, Flip 3D window-switching and other heavily touted Vista features. The complaint also challenges the Windows Vista Express Upgrade program, for similar reasons, because in many cases the upgrades for XP buyers were to Windows Vista Home Basic, not to the more advanced versions of the operating system.

At the federal courthouse in Seattle this afternoon, U.S. District Judge Marsha Pechman will hear arguments on Microsoft's motion to dismiss the case. I'm planning to be there, and I'll be posting about it afterward.

Here's a copy of Microsoft's motion for dismissal: PDF, 32 pages. In the filing, Microsoft cites a number of legal issues, saying that the 'Vista Capable' labels didn't meet the legal definition of written warranty and that marketing activities don't qualify as a contractual offer. More fundamentally, the company says the lead plaintiff, Dianne Kelley of Camano Island, did not suffer any harm to support her Consumer Protection Act claims. From the motion:

"Ms. Kelley does not allege that Microsoft's conduct deceived her into buying a PC that she would not otherwise have purchased, or that she received anything other than what she expected to receive -- a low-end PC with the 'Windows Vista Capable' sticker, which was in fact 'capable' of running Windows Vista Home Basic. She does not allege that the sticker played any part in her decision to purchase that PC, or that she had any expectation that she would be able to run something more than Windows Vista Home Basic. ... "

The motion cites efforts by retailers, computer makers and Microsoft to distinguish between, and educate the public about, the different Windows Vista editions.

Here's a copy of the plaintiff's response to Microsoft's motion: PDF, 33 pages. Among other things, the filing contends that there was an enforceable contract, because of the end user license agreement (EULA) that came with the Windows XP machine that Kelley originally purchased.

As outlined in the response, here's the gist of the allegations:

"... Microsoft, through its 'Windows Vista Capable' and 'Express Upgrade' programs, promoted the sales of computers with Microsoft XP installed on them on the pretense that they had the capability to run Microsoft's new Vista operating system, when in fact, they cannot run the 'real Vista' that provides the 'core Windows Vista experience.' ... Through its misleading acts, Microsoft benefited by selling more XP licenses and additional upgrades than it would have without the 'Windows Vista Capable' and 'Express Upgrade' programs."