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Microsoft asks Supreme Court to take case

In a widely anticipated move, Microsoft asks the Supreme Court to take its antitrust appeal.

WASHINGTON--In a move that was widely anticipated, Microsoft on Tuesday asked the Supreme Court to take its antitrust appeal.

The action could make it more difficult for the Justice Department and 18 states to seek an injunction against Windows XP. The upgrade to Microsoft's ubiquitous operating system is scheduled to be released in late October.

Andy Gavil, an antitrust professor with Howard University School of Law, said "a request for (certification) before the Supreme Court" would have little chance of success given that "the Court of Appeals delivered a unanimous verdict on monopoly maintenance."

In late June, the U.S. Court of Appeals for the District of Columbia Circuit upheld eight separate antitrust violations against Microsoft.

"We will continue to work to resolve the remaining issues in the case through settlement, but we are seeking Supreme Court review of this important issue," Microsoft spokesman Vivek Varma said.

Once again, Microsoft focused its attack in part on U.S. District Judge Thomas Penfield Jackson. Jackson, who originally found Microsoft guilty of violating the Sherman Antitrust Act and ordered the company broken in two, drew fire from Microsoft for out-of-court comments made to the media during and after the trial. The Court of Appeals later removed Jackson from any future hearings.

Two documents made up the bulk of Jackson's decision: the findings of fact, issued in November 1999, and the conclusions of law, released in April 2000. Microsoft says Jackson should have removed himself after he first spoke to the media.

"Microsoft respectfully submits that the district judge should have been disqualified as of September 1999, the date of his earliest known violation" of codes governing the conduct of federal judges, the legal brief states. "Such disqualification would require (vacating) the district court's findings of fact and conclusions of law."

"This was an issue addressed by the Court of Appeals," Justice Department spokeswoman Gina Talamona said. "We will respond promptly to their filing."

Microsoft's victory special coverage Emmett Stanton, an antitrust attorney with Fenwick & West in Palo Alto, Calif., said the Jackson issue is unlikely to grab the high court's attention.

"This is something that was presented to the D.C. Circuit (Court); they agreed (Jackson) was out of line, but his conduct was not sufficient for overturning the findings of fact and conclusions of law," he said. "Is there any reason for the nine judges of the Supreme Court to weigh into that? No."

Microsoft also asked the Court of Appeals to stay the order that would return the case to the trial court for further proceedings later this month. If the appeals court grants the request, it could make it more difficult for the government to get an injunction against XP.

While the Court of Appeals is likely to grant the request, it is under no compulsion to do so, Stanton said. One reason for it to deny the motion "could be an emergency request for injunction against XP," he said. "The Supreme Court is not equipped to handle something like that, and neither is the Court of Appeals, for that matter."

Still, the appeals court will likely grant the stay, making Microsoft's request "an effective, but not a very long-lasting, stalling tactic," Stanton said.

But Bob Lande, an antitrust professor with University of Baltimore School of Law, doesn't believe the Court of Appeals will stay the mandate. One reason: "The Supreme Court is very unlikely to take the case," he said.

Lande said there are no rules on how long the Supreme Court could take deciding what to do with Microsoft's request. "They could take up to six months, which is another reason the Court of Appeals might not stay the mandate," he added.

For now, Microsoft's request effectively takes the case another step away from returning to the trial court, where a new judge would be randomly selected and new proceedings in the case commence. Among those: rehearing whether Microsoft illegally tied--or integrated--Internet Explorer with Windows 95 and 98, and crafting a new remedy.

But the government is expected to quickly file briefs opposing the Supreme Court appeal and stay of mandate.

"The states will resist the appeal to the Supreme Court and motion for a stay," said Iowa Attorney General Tom Miller. "The computer industry continues to change very rapidly. "We think it is best to get this case going forward again at the district court, as the Court of Appeals ordered."

If the government is at least successful in preventing the stay, proceedings could resume before the new judge as soon as this month. That would be quick enough "for the states to go after XP, if they are really serious about it," Lande said.

But as the clock ticks down on Windows XP's launch, "the longer the government waits, the more difficult it will be to stop" the new operating system's release, Gavil said. "It's pretty tough to put the genie back in the bottle once it's out."

While Microsoft won't officially launch Windows XP until October, PC makers will be able to ship computers with the new operating system starting next month. That makes possibly seeking an injunction an even more pressing issue for the government.

Whether the software maker is successful in its Supreme Court request or not, the nearly singular attack on Jackson is foreboding, say legal experts.

"The fact that Microsoft didn't appeal the substance of the Court of Appeals decision, that's an implicit recognition on their part that it would not be overturned if appealed," Lande said.