Justice Department Asks Court for Quick Action on Microsoft

Government antitrust enforcers asked a U.S. appeals court Friday to put the Microsoft Corp. case on a fast track, a hint they may seek changes in the next version of the Windows operating system.

The public interest demands a “prompt” and “effective remedy” for the software giant’s illegal conduct, the Justice Department and 18 states said in a legal brief. The request may lead to a courtroom battle over whether the software giant can bundle new features into Windows XP, due on the market Oct. 25.

State officials have said they are concerned the world’s largest software maker will tighten its grip on the operating systems market by including a video and audio player, instant messaging, photo editing and other new software in Windows XP.

A court order to change the product before it’s released would be important to the government, said Ernest Gellhorn, an antitrust expert at George Mason University. After that, “the cat is out of the bag pretty quickly,” he said. “There are going to be a lot of copies out there.”

Friday’s brief asked the Washington-based appeals court that last month issued a split decision in the case to return the dispute immediately to a trial judge, as yet undesignated. Under the usual rules, the case wouldn’t return to the lower court level for more hearings until mid-August or later.

“Delay in imposing an effective remedy inflicts substantial and widespread consumer injury and needlessly prolongs uncertainty in the computer industry,” the government said. “Speed is of the essence in remedying the effects of unlawful exclusionary conduct designed to crush nascent competitive technologies.”

Microsoft said it’s studying the government’s request, declining to say whether it agreed with the proposed timetable. “We share the goal of trying to get the remaining issues in the case resolved as quickly as possible,” said spokesman Vivek Varma.

Microsoft will have until July 23 to respond to Friday’s motion by the government, according to the Web site of the U.S. Court of Appeals for the D.C. Circuit.

The court last month unanimously upheld a finding that Microsoft abused its Windows monopoly. The court also overturned a breakup order, instructing a lower court judge to reconsider the remedy in the case.

In addition, the appeals court removed U.S. District Judge Thomas Penfield Jackson from the case, saying comments he made to reporters were improper.

The government said in the latest filing it will not seek Supreme Court review. Antitrust enforcers also said that, if Microsoft were to appeal to the high court, the company wouldn’t have a basis to stop the trial judge from proceeding at the same time.

“The government wants to get it back to the district court and get things moving,” said Mark Schechter, a Washington antitrust attorney with Howrey & Simon. “I would guess Microsoft wants to slow things down and not have them get moving until after their release.”

The government will have to convince the court that expediting the case is important for a fair resolution and that Microsoft wouldn’t be prejudiced, legal experts say. Typically, appeals courts don’t return cases to lower courts for several weeks so parties can consider whether to ask for a new hearing or appeal to the Supreme Court.

The filing comes a day after New Mexico’s attorney general withdrew from the case, saying she would let other states take the lead in securing a final resolution.