U.S. Court Denies Microsoft Request
A federal appeals court refused Thursday to reverse part of its June 28 decision that Microsoft Corp. violated antitrust laws, setting the stage for a possible appeal next week to the Supreme Court.
The U.S. Court of Appeals for the District of Columbia Circuit also turned down the government’s request to send the 4-year-old case immediately back to a lower court so that a new judge could begin hearings on how Microsoft should be punished.
Legal experts found neither decision surprising. “The court seems to be saying they want to treat this case like any other,” said law professor Robert Lande of the University of Baltimore.
The decision starts the clock ticking for Microsoft, which said it would decide within seven days whether to appeal to the Supreme Court. The software company also suggested in a court filing recently that it would seek a court order to delay further proceedings until the Supreme Court decided whether to take the case.
“We were hopeful that the [appeals] court would clarify one piece of its prior ruling,” said Microsoft spokesman Vivek Varma. “We continue to review our options with regard to Supreme Court review.”
In its June 28 ruling, the appeals court, while throwing out the lower court’s breakup order for Microsoft, upheld several findings that the company acted illegally in monopolizing the market for computer operating systems.
In a July 18 request for rehearing, Microsoft argued that the appellate judges “overlooked or misinterpreted” key evidence in the case by concluding that Microsoft illegally commingled software code for its Windows operating system and its Internet Explorer Web browser.
Microsoft said it shared code for Windows and Internet Explorer to save computer space. Government attorneys argued that the only reason was to make it difficult for computer manufacturers and consumers to separate the two products.
“We’re pleased that the rehearing was denied,” said Justice Department spokeswoman Gina Talamona.
Microsoft worries that the commingling issue might arise again with its new Windows XP operating system, which comes bundled with several other products, including Web browsers, instant messaging and a player for music and video.
“They don’t want to have to re-engineer their code,” said Lars Liebler, an antitrust attorney in Washington who has supported Microsoft’s position in the case.
Unless Microsoft appeals to the Supreme Court, the landmark case could be back before a new lower court judge by mid-August. Judge Thomas Penfield Jackson, who presided over the previous trial, will be replaced because the appeals court found that he improperly discussed the case with reporters.
The Justice Department has said it will not appeal to the Supreme Court, and if Microsoft appeals, legal experts believe it is unlikely that the Supreme Court will hear the case.
“I don’t think the Supreme Court will take a petition from either the government or from Microsoft,” Robert Bork, a former appeals court judge who now represents a trade group opposed to Microsoft, said during a panel discussion on the case in Washington earlier this week. “The decision is sound on legal grounds.”
Andrew Gavil, a Howard University law professor, said it would be unusual for the Supreme Court to hear an appeal of a unanimous appeals court decision that did not conflict with a decision by another appeals court.
Gavil said Microsoft might argue that the entire case should be thrown out because of Jackson’s misconduct. More narrowly, the company could argue in its appeal that it did not illegally commingle software code, attorneys said.
Microsoft officials declined to discuss which issues they might appeal.
A settlement in the antitrust case also remains a possibility, although progress has been slow. The parties met last week but did not discuss substantive issues and have not met again, according to a source familiar with the talks.
