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Court decision seen favoring Microsoft

Today's decision by the Supreme Court scores a point for Microsoft in its long-running antitrust contest against government opponents, even though the game is a long way from being over, according to legal experts.

    Today's decision by the Supreme Court scores a point for Microsoft in its long-running antitrust contest against government opponents, even though the game is a long way from being over, according to legal experts.

    In deciding not to bypass the normal appeals process, as requested by the plaintiffs, the high court chose a course of action that many see as favorable to the software giant.

    The move is "certainly a victory for Microsoft," said Bob Lande, an antitrust attorney at the University of Baltimore Law School.

    Both sides now will have to argue the case before judges at the appellate level. "Ultimately, it's still to be decided by the appeals court. But taking this a round at a time, this round goes to Microsoft," Lande said

    The plaintiffs--the Justice Department and 19 states--had asked that the court take the case directly from the district court in which Judge Thomas Penfield Jackson in June had ordered Microsoft broken into two companies.

    The government based its request for the extraordinary action on what it described as the significance of the case to the national economy

    Microsoft had argued for the case to proceed to U.S. Appeals Court for the District of Columbia. Appellate judges on two other occasions have overturned rulings against Microsoft.

    "The government wanted to avoid the D.C. Court of Appeals at all costs," said Hillard Sterling, an antitrust attorney with Chicago-based Gordon & Glickson. "Almost certainly this case will be reversed to some degree. It's possible Microsoft might secure an outright reversal across the board."

    Bill Kovacic, an antitrust professor at George Washington University School of Law, also predicts at least part of the case will go back to Jackson.

    "After a stellar performance, he (Jackson) stumbled at the end on the remedy portion of the case," Kovacic said. "I think there's a good chance that portion of the case will be sent back to the District Court."

    A good part of the government's case rests on the idea of Microsoft exploiting its dominance as a software maker to put the squeeze on the PC industry and undercut the competitive environment. Today's decision suggests that the Supreme Court may not have seen the situation as dire enough to warrant drastic action.

    "The court's decision implies some skepticism about the government's theory that imminent review is necessary to preserve competition," said Sterling. "The court seemed comfortable with the normal appellate process, notwithstanding the government's claim of competitive harm."

    The government may not be alone in feeling a sting from the Supreme Court's decision.

    "For the competitive software industry, it?s a major defeat," said Glenn Manishin, an antitrust attorney with Patton Boggs in McLean, Va.

    The problem, he said, is that Jackson stayed all remedies against Microsoft--the breakup order and restrictions on the company's business practices. Manishin also disagreed with Sterling's assessment of the issue of competitive harm.

    "Right now there are no remedies in place, and there will be no remedies in place, unless and until the process is concluded," Manishin said.

    Even as legal experts warned not to read too much into today's Supreme Court's decision, it feeds into the heated debate over the case's ultimate outcome.

    "This isn't supposed to be suggestion about the merits of the case," Sterling said. "This is a procedural issue. But the implications are undeniable."