DOJ asks appeals court to hurry Microsoft case

The U.S. Department of Justice on Friday asked an appeals court to speed up the process for sending the government's antitrust case against software maker Microsoft Corp. back to the trial court.

The Department of Justice (DOJ) and 18 state attorneys general who are plaintiffs in the case argue in the court filing that the case should be expedited because "delay in imposing an effective remedy inflicts substantial and widespread consumer injury and needlessly prolongs uncertainty in the computer industry."

Moving "as quickly as possible" is in the public interest, the government said in the document. Microsoft's operating system is used in about 90 percent of the world's PCs and so the antitrust case has direct bearing on businesses and industries and therefore should be resolved quickly, the government said.

Microsoft has 10 days to submit its response to the DOJ's request.

"We're still reviewing this but in general we share the goal of trying to get the remaining issues resolved," said Jim Desler, a Microsoft spokesman. "We continue to review the long and complex appeals court ruling."

The U.S. Appeals Court for the District of Columbia ruled late last month that Microsoft has illegally used its monopoly power in the market for desktop operating systems. But the court overturned an earlier ruling to break Microsoft in two and ordered that the case be returned to the District Court where it was first tried. A new judge is to reconsider the "remedy" that will be imposed on Microsoft.

The Appeals Court ruling said the case would go back to the trial court in mid-August, allowing time for either side of the case to ask for a rehearing. The motion filed Friday by the DOJ said that the government won't ask for a rehearing and further does not intend to ask the U.S. Supreme Court to hear the case.

A source close to Microsoft said the company has yet to make its decision about whether to ask the Appeals Court for a rehearing.

"Typically someone like Microsoft wants to take its time to figure out if it wants to go to the Supreme Court," said Marc Schildkraut, a partner with Washington, D.C., law firm Howrey Simon Arnold & White LLP. "I think there are good reasons for them to do that."

The government's filing comes on the heals of a settlement between New Mexico's attorney general and Microsoft. The state dropped out of the case after negotiating a deal that gives New Mexico the benefit of any settlement negotiated with the Department of Justice and any remaining states -- what some observers are calling "favored nations status."

New Mexico's settlement came two days after Microsoft announced a concession that will allow PC makers to remove the icon for the Internet Explorer browser from Windows PCs, as well as to include a program that allows users to remove the browser altogether, and to allow software from Microsoft rivals to show up on the Windows start-up screen.

Microsoft is expected to release Windows XP, the next version of its operating system on Oct. 25. Some legal experts who have followed the case have said the government is likely to seek an injunction to stop that from happening.

"It's going to be interesting to see how Microsoft responds," said Mark Schechter, a former official in the U.S. DOJ antitrust division and a partner with the law firm Howrey Simon Arnold & White LLP. "It wouldn't have surprised me if Microsoft would take an appeal to the Supreme Court if for no other reason than to delay the case past the (Windows XP) launch date."

(Additional reporting by Douglas F. Gray in San Francisco.)

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