Appeals court rejects Microsoft rehearing bid

In a terse, two-sentence statement, the U.S. Court of Appeals in Washington Thursday rejected Microsoft Corp.'s request for a rehearing on part of the antitrust case ruling issued by the panel in late June. Thursday's decision puts the case on track to be handed over to a lower court by next Friday for consideration of possible remedies against the software vendor.

According to a court official, the appeals court now has seven days to send the case to a U.S. District Court trial judge, who will be randomly assigned to the matter by a computer. That will occur unless Microsoft decides to appeal the actions taken by the appellate court to the U.S. Supreme Court and asks the appeals panel to stay its rulings in the case, the official said.

Microsoft, in a brief filed last month, sought a rehearing on a relatively narrow section in the June 28 decision issued by the appeals court finding that the so-called "commingling" of Internet Explorer and Windows code violated antitrust laws. The appeals court said, in part, that such commingling "has an anticompetitive effect" on rival Web browsers.

The software vendor claimed in its rehearing petition that the appeals court either "overlooked or misinterpreted" evidence on that issue. Microsoft said the decision could be read "to suggest that [PC makers] should be given the option of removing the software code in Windows 98 ... that is specific to Web browsing" -- a notion that it wanted to quash.

The appeals court didn't address the issues raised in Microsoft's brief in today's rejection of the rehearing request. It said simply that the company's petition was being denied and added: "Nothing in the court's opinion is intended to preclude the District Court's consideration of remedy issues."

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Patrick Thibodeau

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