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Microsoft accuses government of trying to short-circuit its appeal

The software giant files a legal response that accuses the government of trying to "short-circuit the appellate process."

WASHINGTON--Microsoft filed a legal response today that accuses the government of trying to "short-circuit the appellate process."

Microsoft was responding to a government brief filed Tuesday that faulted the software maker's proposed schedule for hearing its antitrust appeal.

The gulf between the two schedules is a wide one, and Microsoft gave the government no ground at all.

"The briefing schedule proposed by Microsoft readily permits 'prompt disposition' of this appeal," Microsoft's attorneys wrote. "At the same time, that schedule is adequate to enable counsel to lay out issues and analyze them in a professional manner so as to discharge their responsibilities to their clients and the Court."

The U.S. Court of Appeals for the District of Columbia Circuit is officiating the appeal and is expected to reach a decision on the schedule by next week.

On Monday, Microsoft asked that each side be given 60 days to prepare primary briefs and 30 days for supplemental briefs. This would be followed by oral arguments, under Microsoft's plan, of 90 minutes for each side.

But based on Microsoft's schedule the appeals court could not begin deliberating the case for at least six months.

The government wants Microsoft to file its primary brief by Nov. 1, with the government filing its main document by Dec. 8. Additional briefs would be due by Dec. 22, essentially ending the bulk of legal filings by Christmas.

"That would mean oral arguments around February," said Bill Kovacic, an antitrust professor at George Washington University School of Law. A ruling would come "in April or early May," he said.

In today's brief, Microsoft slammed the government's request for trying to complete the briefing portion of the schedule this year, arguing the Justice Department and 19 states had already delayed the process.

"Were it not for the three-month delay engendered by appellees' strenuous effort to avoid this Court's review, briefing would have been completed in November of this year under Microsoft's proposed schedule," Microsoft's brief states.

The government had asked the Supreme Court to take the case in what many legal experts say was a maneuver to bypass the Court of Appeals.

"There is little question the government wanted to avoid the Court of Appeals nearly at all costs," said Bob Lande, an antitrust professor with the University of Baltimore Law School.

Had the Supreme Special coverage: Breakup Court accepted the appeal, it would have accelerated the conclusion of case. But the high court rejected the request in late September.

In its brief filed Tuesday, the government accused Microsoft of trying to drag out the appeals process.

Today, Microsoft shot back. "It is truly remarkable that appellees now seek to shift to Microsoft the blame for, and the burden of, the delay that resulted from their tactical decision to seek direct review in the Supreme Court," Microsoft's lawyers wrote.

Still, Andy Gavil, an antitrust professor with Howard University Law School, said the appeals court is more likely to accept the government's proposal because it is more in line with the "federal rules of appellate procedure."

Microsoft also balked at the government's proposal for the length of the legal briefs. Microsoft had asked for 56,000 words on primary briefs--four times the normal length--and 28,000 words on supplemental briefs.

The government had suggested 24,000 words on the main brief and the normal 7,000 words on the additional documents.

At issue is U.S. District Judge Thomas Penfield Jackson's order that Microsoft be broken into two separate companies: one for operating systems and another for software applications. Earlier, he ruled that Microsoft had violated antitrust laws.