MS/DOJ: Microsoft asks Supreme Court to decline case

The latest brief, filed with the US Supreme Court, is a formal reply to a brief filed with the court last week by the US Department of Justice (DOJ) and state officials. That brief - itself a rebuttal of a brief filed by Microsoft in July - argued that the antitrust suit against the company should not be heard by the US Court of Appeals for the District of Columbia.

The DOJ and the 19 US states that sued the company in May 1998 are seeking to have the case go directly before the nation's highest court when it reconvenes in October. The government has said that the case's national economic impact warrants circumventing the appellate court.

Microsoft maintains that there is no need to accelerate the case through the courts, and that the Supreme Court would benefit from an initial review by the Court of Appeals because of the complex nature of the company's appeal.

The company's reply filed on Tuesday denies the government's accusation that Microsoft wants to prolong the case.

"No one is more anxious than Microsoft to see this case brought to a prompt conclusion," Microsoft lawyers wrote. "But the benefits of comprehensive review by the court of appeals far outweigh whatever time, if any, might be saved by direct review in this court."

Among other arguments, the reply also rebuts government statements supporting its use of the Expediting Act, which provides for direct Supreme Court review of antitrust cases that are "of general public importance in the administration of justice." Microsoft says the government has relied on a "newfound reading" of the act and it says the Supreme Court's discretion to deny a direct appeal is "unqualified."

US District Court Judge Thomas Penfield Jackson ordered a breakup of Microsoft more than two years after the government filed the antitrust case when the company combined browser technology in the Windows operating system. The remedy ordered that Microsoft be split into an applications company and a company focused on operating systems. He also ruled that Microsoft is subject to a set of behavioral remedies. Those remedies have been put on hold until the appeals process is completed.

The Supreme Court will review the briefs in an upcoming conference. A decision on whether it will take the case could come as early as mid-September.

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