Microsoft Requests Appellate Rehearing
Microsoft Corp. launched an uphill battle Wednesday to persuade a federal appeals court here to reconsider part of its unanimous June 28 ruling in the landmark antitrust case.
Saying the U.S. Court of Appeals for the District of Columbia Circuit “overlooked--or misinterpreted” critical evidence, the Redmond, Wash.-based company filed a motion asking judges to grant it a rehearing on whether the company illegally commingled the software code of its Windows operating systems with its Internet Explorer Web browser.
Microsoft said it feared that computer makers might use the ruling to justify removing certain parts of the software code included in its Windows products, such as code used to run Web browsers and other applications that consumers might find useful.
The question is also critical to Microsoft’s coming launch of Windows XP, an updated version of the operating system that is expected to be bundled with several applications, including instant messaging and a media player. The legality of such bundling has been put into question by the court’s ruling.
Legal experts said Microsoft’s request for a rehearing suggests that the company--which just three weeks ago characterized the court ruling as a major victory--is realizing that the 125-page decision poses problems for its long-term business strategy.
“They are beginning to appreciate and understand that the Court of Appeals ruling has significant implications for Microsoft’s ability in the future to hard-wire applications into Windows,” said Jeff Blattner, an antitrust attorney in Washington who worked in the Clinton administration.
Officials at the Justice Department criticized Microsoft’s motion.
“The issue that Microsoft is raising in its filing was litigated at the District Court and Court of Appeals, both courts ruling in favor of the department,” said department spokeswoman Gina Talamona.
Last week, government attorneys said they did not plan to request a rehearing or appeal on any part of the decision. The government also asked the appeals court to remand the case to a lower court as quickly as possible.
The appeals court decision upheld a lower-court ruling that Microsoft violated federal antitrust laws by monopolizing the market for personal computer operating systems and intimidating rivals. The court also threw out an order to break up the company and remanded the matter to a lower court to determine the proper remedy.
Experts said it is unlikely that the appeals court--which issued a 7-0 ruling--will agree to rehear the case. If it is turned down, Microsoft could appeal to the U.S. Supreme Court. “But this is not the kind of issue that would go to the Supreme Court,” said Andrew I. Gavil, an antitrust professor at Howard University.
Microsoft foes were quick to dismiss the filing, saying they believe the appeals court might dispense with it without even asking for a rebuttal.
“We will respond in a court filing if necessary,” said Bob Brammer, spokesman for state Atty. Gen. Tom Miller of Iowa, one of 18 states that joined in the antitrust lawsuit.
The attorneys general and Microsoft’s competitors said Microsoft is hoping to drag out the legal process and reduce the chances that the government would seek to block Windows XP from shipping in October.
“It looks fairly desperate to me,” said Mike Pettit of ProComp, an anti-Microsoft alliance in Washington. “It looks like an intention to delay things. They’re arguing things that the Court of Appeals clearly thought through. I don’t think they have a snowball’s chance.”
Microsoft spokesman Jim Desler, noting that the filing was made well ahead of the legal deadline, said the company does not intend to delay. He said no decision has been made on whether the company would appeal to the Supreme Court if the appeals court turns it down.
