Microsoft pleads for appeals court hearing

The expected filing is the latest salvo in the Redmond, Wash.-based company's ongoing antitrust battle with the U.S. Justice Department.

In the filing, Microsoft argued that the case's complexity requires a thorough review by the lower court. "The benefits of comprehensive review by the Court of Appeals far outweigh whatever time, if any, might be saved by direct review in this court," Microsoft said in the filing. "The need for soundness in the result outweighs the need for speed in reaching it."

In June, U.S. District Judge Thomas Penfield Jackson ordered that Microsoft be broken into separate operating system and software applications companies after ruling that the company violated two sections of the 1890 Sherman Act.

The government later petitioned the Supreme Court to take the case directly, bypassing the U.S. Court of Appeals for the District of Columbia Circuit. The 1903 law allowing such an action, known as the Expediting Act, was revised in 1974 so that only cases of national importance could bypass the normal appeals process.

In its allotted 10 pages, Microsoft countered government arguments that its case is in many ways similar to the AT&T case and, because of its importance to the national economy, warrants direct review by the high court.

"We also respond to the (argument) if the Supreme Court doesn't take this case under the Expediting Act, what case would they. AT&T was such a case, but this case is quite different," Microsoft spokesman Jim Cullinan said.

Andy Gavil, a law professor at Howard University School of Law, disagrees.

"If not this case, then what case?" he asked. "If any case fits the criteria laid out by the Expediting Act, this is it."

Microsoft in its brief also addressed the government's contention that the issues in the case are quite simple and that Microsoft had created complexity where there is none.

This is potentially a pivotal issue in what the Supreme Court decides, say legal experts.

"Generally, the Supreme Court doesn't like to deal with lots of messy issues," said Bill Kovacic, an antitrust professor at George Washington University School of Law. "The court prefers cases with just one or two issues that are easily laid out."

Microsoft's case and its record of more than 30,000 pages, however, could be more than the high court would like to take on at this time, he said.

While Kovacic gives odds of about 50-50 as to whether the Supreme Court will take the case, other legal experts think the government will win this round.

"I am now convinced the Supreme Court will take this case at this time," said Bob Lande, an antitrust professor at University of Baltimore Law School. "Friend of Court" briefs filed by high-tech trade associations favoring the direct appeal persuaded "me this is what the Supreme Court will likely do," he added.

Kovacic said he is more convinced than other lawyers that the Supreme Court will take the case. About 100 people he queried who conduct Supreme Court practices said they don't believe the high court will take the case.

The Supreme Court is expected to rule on jurisdiction by early October. If the high court accepts the direct appeal, it will likely issue a ruling by next June. If the case goes back to the Court of Appeals, the government and Microsoft will make their arguments before a panel of seven judges, with a ruling expected in about 12 months.

In other legal matters, Microsoft scored two more victories in more than 130 private antitrust suits resulting from its larger legal woes. A Baltimore court is expected to rule later this year on the fate of 62 cases, which could cut the number of pending lawsuits nearly in half. Oral arguments in the matter are scheduled for Oct. 13.