Government slams Microsoft motion

Following U.S. District Judge Thomas Penfield Jackson's landmark antitrust ruling last week, Microsoft filed its pro forma request that the judge stay restrictions on the company's business practices. The sweeping rules are set to go into effect in about 85 days--or 90 days from Jackson's ruling.

The government responded to Microsoft's two-paragraph request with three legal documents that slammed the software giant's request and asked the judge to not only deny it but hold back ruling on the request until Microsoft files its broader appeal.

The tactic baffled Microsoft lawyers, said company spokesman Mark Murray. "The clock is ticking down on the 90 days, and the government is looking to add several more weeks to the process," he said. "It's clear they are trying to delay the process."

Legal experts generally regarded Microsoft's stay motion as obligatory, with no expectation Jackson would accept it. But the government asked Jackson to withhold ruling on the motion until today so that it could draft its lengthy response, said sources close to the case.

"Microsoft's request to stay conduct remedies is more of a formality, with little chance Judge Jackson will accept," said George Washington University School of Law professor Bill Kovacic. As such, no real response would be warranted.

Rich Gray, an intellectual property attorney with Outside General Counsel Silicon Valley in Menlo Park, Calif., described the lengthy response as complete overkill.

"It's the proverbial killing the fly with the sledgehammer," he said. "Why would they do it? The only reason they would do that is to get as many of Microsoft's arguments on the table now so they can start writing their briefs for the appellate process."

In its filing, the government cited four reasons for rejecting a stay, arguing Microsoft made a perfunctory stab at two of them.

"Microsoft's two-paragraph motion asserts only two--the purported harm to itself and lack of harm to others to support its request for a stay--and does so without offering any evidentiary support," government lawyers wrote. "The filing does not even mention the likelihood of success or the evaluation of the public interest."

Jackson last week ordered that Microsoft be broken into separate operating systems and software applications companies, which he stayed pending the expected larger appeal. Microsoft has 60 days to file its notice of appeal. He determined Microsoft had violated two sections of the 1890 Sherman Act by illegally maintaining its operating system monopoly and trying to unlawfully extend that to Web browsers.

Redmond, Wash.-based Microsoft is expected eventually to file two appeals in the case: a preliminary appeal of the conduct restrictions--once Jackson denies the initial request--and an appeal of the broader case.

Once Microsoft files the larger appeal, the government plans to petition that the case be submitted directly to the Supreme Court, sidestepping the U.S. Court of Appeals for the District of Columbia Circuit. Legal experts handicapping the appeal say the local appellate court, which has sided with Microsoft twice before, is one place the government doesn't want to fight Microsoft.

In its filing today, the government offered a scheduling order for Jackson to sign, if he so chooses, that would reserve ruling on Microsoft's stay request until after the software giant files its notice of appeal; gave Microsoft until Wednesday to respond to today's brief; obligated the government to file its motion for direct appeal to the Supreme Court one business day after Microsoft submits its motion for appeal; and compelled Microsoft to file any objection no more than four business days later.

"What the government is worried about is (that) while they're maneuvering to get this to the Supreme Court, the stay request is going to go to the Court of Appeals," Gray said. "The timing of Microsoft's appeal is statutory and not merely subject to complaining by the government."

Gray added: "The rules are what they are, and as long as Microsoft is working within the rules, the fact that is causing the government some problem is tough luck."

It is uncertain how Jackson will respond, but Microsoft's Murray warned any delay that prevented Microsoft from getting its preliminary appeal heard by the appeals court would unfairly penalize the company. "We have a hard-and-fast deadline that is quickly approaching," he said of the 85 days remaining before conduct restrictions go into place.

University of Baltimore Law School professor Bob Lande expressed disgust at how the case had degenerated into squabbling legal briefs. "It just looks like both sides are playing these games, and I don't know who to root for," he said. "It's not like truth and justice, but lawyers playing their lawyer games."