Microsoft Argues for Appeal in Lower Court

To give Microsoft's appeal "full and fair consideration," the Supreme Court would have to review the extensive trial record, something that would place an "undue burden" on the higher court, Microsoft argued.

"These appeals are not confined to one or two legal issues of the sort (the Supreme Court) normally considers on certiorari. They instead involve a wide range of substantive and procedural issues more appropriately resolved by the court of appeals," Microsoft's lawyers wrote.

The arguments were made in a filing known as a Jurisdictional Statement and respond to a request by the U.S. government and 19 states prosecuting the case that Microsoft's appeal be fast-tracked directly to the Supreme Court.

The government has argued that the case should go directly to the Supreme Court because it is of national economic importance and must be resolved quickly. Microsoft has argued that the government is afraid to let the case go to the lower court because that same court -- the U.S. Court of Appeals in the District of Columbia -- has issued at least one ruling favorable to Microsoft earlier in the case.

Dana Hayter, an attorney with Palo Alto, California-based law firm Fenwick & West LLP, said he believes the Supreme Court will deny the DOJ's request.

"I'd be surprised if the Supreme Court took the case away from the DC circuit now," said Hayter, who was formerly with the DOJ's antitrust division.

The appeals court has shown a willingness to move forward quickly on the case, Hayter said. The appeals court also has said all of its judges will hear the appeal, as opposed to the three-judge panel that ruled in favor of Microsoft in a previous appeal.

Hayter also noted that the appeals court has been very aggressive about taking jurisdiction of the appeal.

"It seems like the circuit is very interested in weighing in," he said. "So the Supreme Court would be reluctant to take (the case) given that signal."

In its brief today, Microsoft reiterated many criticisms that it has already made of the lower court proceedings. It was sharply critical of the District Court in which its case was tried, saying the court had "largely suspended the Federal rules of evidence" by admitting "numerous newspaper and magazine articles and other rank hearsay."

In its effort to move the trial along quickly, the District Court also denied Microsoft adequate time for discovery and prepare for trial, the company said.

"The severity of the remedy imposed and the significance of the case to the Nation's economy make it more important -- not less -- that these appeals proceed through intermediate appellate review in the normal course," the company said.

DOJ officials and the states involved are expected to reply to Microsoft's brief on Aug. 15. Microsoft could reply to that brief by Aug. 22.

Microsoft has posted links to today's filings, along with a statement for the press, on its Web site at http://www.microsoft.com/presspass/.

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James Niccolai

PC World
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