Microsoft appeal now in the hands of Supreme Court

WASHINGTON - The judge who ordered Microsoft Corp. broken up delayed implementing business restrictions against the computer software maker and sent the landmark antitrust case directly to the Supreme Court, where the nine justices are just days from finishing their current term.

With his action, U.S. District Judge Thomas Penfield Jackson bypassed the federal appellate court where Microsoft wants the case to be considered first. The U.S. Court of Appeals for the District of Columbia circuit favored the company in a past, related case.

Immediate Supreme Court consideration was in the ''general public importance in the administration of justice,'' Jackson wrote in his widely expected order Tuesday.

But in a surprise twist, the judge delayed implementing various conduct restrictions he imposed in a June 7 decision that also ordered Microsoft to be split into two companies. While Jackson at that time had stayed the actual breakup until all appeals were exhausted, the business restraints he ordered would have gone into effect Sept. 5.

Both Microsoft and the Justice Department applauded Jackson's action, albeit for opposite reasons.

''This decision affirms the department's position that a quick and effective remedy is necessary to resolve this significant case,'' the department said in a written statement.

Microsoft spokesman Mark Murray said: ''We're obviously very pleased that the District Court rejected the government's arguments and stayed the entire judgment.''

It was uncertain just how quickly the case could be resolved. The Supreme Court is in the last two weeks of its 1999-2000 term, and it can either accept the case or send it to the appellate court for review.

Unless the high court justices expedite their handling of the case - an action government lawyers may seek - Microsoft will have until Aug. 14 to file an appeal of Jackson's ruling.

That appeal would ask the justices to send the case back down to the appeals court. The government then would have 30 days to respond and explain why the case should be decided directly by the nation's highest court.

Jackson ruled on April 3 that Microsoft engaged in anticompetitive conduct in violation of federal antitrust laws, and, as a remedy, he ordered the company's breakup and a number of business restrictions.

Among those restrictions, Jackson ordered Microsoft to divulge to outside developers technical information about the way Microsoft operating systems interact with its software. Those developers would be able to pick apart the computer code without cost to improve their understanding of it and make their own products.

Microsoft also would no longer control what icons are on the Windows operating screen when a user buys a computer. This means that consumers buying a computer from a distributor such as Dell or Gateway would see a desktop that looked nothing like the Windows desktop they're accustomed to.

The Justice Department and 19 states that successfully sued Microsoft had urged Jackson to skip the appellate court and turn the case over to the Supreme Court because of the high-profile nature of the case and the crucial role technology plays in the new American economy.

But Microsoft, one of the nation's most successful companies whose Windows software operates more than 90 percent of the world's personal computers, pushed to have the case heard in the appeals court.

The appellate court on Monday said it would step aside and suspend any action on the case in the event Jackson chose to send the matter to the Supreme Court under a rarely used fast-track process.

Although conduct restrictions no longer loom in the company's immediate future, Microsoft said it still would prefer the case go through the regular appellate process.

''We believe that the facts and the law are on our side regardless of which court reviews this case,'' Murray said. ''But given the numerous factual and procedural and legal errors we will be citing in our appeal, this is clearly a case that would benefit from the full appeals process.''

One antitrust expert said Jackson's decision to stay the restrictions on Microsoft's conduct may have increased the chance of the Supreme Court taking the case.

''I think Jackson made a very shrewd decision,'' said William Kovacic, antitrust expert with the George Washington University School of Law. ''If he wanted to frame the request to the Supreme Court in the most effective way for them to take the case, he had to do something like this.''

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On the Net:

Microsoft: http://www.microsoft.com/presspass/trial/default.asp

Justice Department: http://www.usdoj.gov/atr