The Microsoft antitrust trial drama continued Wednesday with furious posturing on both sides. While Microsoft prepares a filing it will issue Monday asking the Supreme Court to let the U.S. District Court of Appeals to hear its case, the U.S. Department of Justice (DOJ) has already filed a brief with the appellate court asking it not to begin working on the Microsoft case until the Supreme Court decides whether to hear it. At issue, of course, is the venue for the Microsoft appeals process. Microsoft wants the Court of Appeals to hear the case, because it has ruled favorably for the company in the past, including a 1998 ruling that OK'd the bundling of Windows 98 with Internet Explorer. But the DOJ wants the case to go directly to the Supreme Court, which will eventually hear the case anyway: Both sides have vowed to appeal to the higher court if the Appellate Court rules against them.
Wednesday's maneuvering comes just a day after a flurry of legal activity, where Microsoft suddenly filed its appeal and the U.S. District Court, which was previously silent on the issue, just as suddenly filed to hear the case. In fact, the appellate court offer was actually filed before Microsoft's appeal, showing the court's eagerness. And in a bid to ensure that it would hear the case, the appellate court took the unusual step of offering up all of its qualified judges, rather than the usual randomly chosen three judge committee, to hear the case. Three of the appellate court judges are disqualified from hearing Microsoft's appeal because of conflicts of interest. This offer caught the DOJ off guard: the agency had been wrangling to have Judge Jackson assign the case directly to the Supreme Court, but it immediately moved to counter the appellate court.
"It makes little sense for the \[appellate\] court to rush" into accepting the Microsoft request for appeal "before ascertaining whether it will have jurisdiction over the case," the DOJ filing reads. "Certification would immediately divest this court of jurisdiction over the appeal and jurisdiction would be restored only if the Supreme Court chooses at some future time to cede the case back to this court and restore its jurisdiction."
Microsoft seems to be prepared for the outcome, whatever that might be. "Microsoft does not believe that the government should try to evade the Court of Appeals, but we are confident of our appeal regardless of which court hears the case," the company said in a statement issued Wednesday