As expected, Microsoft petitions high court

Microsoft has requested that the U.S. Supreme Court not fast track its antirust appeal and instead allow the Court of Appeals to review the case before handing it over to the highest court in the land. In its filing, Microsoft argues "that a 'full and fair consideration' of those appeals would impose an 'extraordinary' burden on the Supreme Court given the extensive trial record that would have to be reviewed, and the large number of issues that would have to be considered." And Microsoft may have raised some valid points: Though Judge Jackson had requested that the Supreme Court review the case under a never-used 1974 Expediting Act, Microsoft correctly points out that the resolution of factual challenges is best served by the Court of Appeals, as the Supreme Court is "not a court for correction of errors in fact finding." The company says that the sheer number of issues raised by the appeal makes it unsuitable for direct review by the Supreme Court.

As stated in the Microsoft filing, the central question here is "whether \[the Supreme\] Court should exercise its discretion to decide Microsoft's appeal in the action brought by the United States or deny the direct appeal and remand the case to the United States Court of Appeals for the D.C. Circuit." In the event that the Supreme Court does take the case, the company has presented eight questions for the Court which it thinks are at the heart of the case:

1. Did the district court err when it ruled that the integration of Windows 98 and Internet Explorer was a product tie-in violation of the Sherman Antitrust Act?

2. Did the district court err when it ruled that Microsoft has a monopoly in "PC operating systems"?

3. Did the district court err when it ruled that Microsoft attempted to monopolize the market for Web browsers?

4. Did the district make a number of reversible errors in its conduct of this case? Microsoft says that it was denied time for additional discovery and trial preparation, that the U.S. government was permitted to expand the scope of its trial dramatically, and that large amounts of hearsay were admitted into evidence.

5. Did the district court err when it entered a sweeping permanent injunction against the company, using hearsay as the rationale, and without conducting a hearing to go over the evidence?

6. Did the district court err when it entered "extreme and punitive relief," including the "unprecedented" breakup of the company, that Microsoft feels was unrelated to the violations found by the court?

7. Did the district court err when it dismissed Microsoft's counterclaims when it was forced to license altered versions of its copyright Windows operating system?

8. Should the judge be remanded for his "extrajudicial communications with members of the press" and should that behavior cause his judgement to be overturned? If the case is sent back to the district court level for this reason, Microsoft would like another judge to be assigned to the case.

"The importance of these cases will not lie in how quickly they are resolved but in their long-term effects on consumers and this nation's economy,'' lawyers for the company said Wednesday. The government has until August 15th to file its reply, and then Microsoft can issue a final reply of its own by the 22nd. The Supreme Court will begin its new session on August 2nd, so it could rule on the appeal at any time. Legal experts expect the higher court to rule in early September, however. "We believe our brief makes a compelling case for having the Supreme Court remand this case to the Court of Appeals for an initial review," a Microsoft spokesperson said. "The Supreme Court will benefit from having the Court of Appeals provide an initial review of the large and complex record in this case, in order to clear the factual underbrush of this appeal.