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Microsoft Appeals Antitrust Case Cites Judge’s Bias; Case Will Now Go To Supreme Court

By Jonathan Krim

Microsoft Corp. on Tuesday appealed its long-running antitrust case to the U.S. Supreme Court, arguing the federal judge who ruled the company illegally abused its monopoly power was so biased that the whole case should have been thrown out and sent back for a new trial.

In asking the Supreme Court to review the case, Microsoft attorneys said the federal court of appeals in Washington should not have upheld Judge Thomas Penfield Jackson’s findings a year ago, particularly when the appeals court itself excoriated Jackson for making inappropriate comments to the media.

Microsoft’s petition comes as the appeals court is preparing to return the case to the district court for new hearings before a new judge, who would determine what penalties would be imposed on the company. The company asked the appeals court to postpone that move until the Supreme Court decides if it will take the case.

State and federal prosecutors said they would oppose both moves, saying the appeals court had already reviewed Jackson’s conduct. Some worry that Microsoft is drawing out the case as it plans to sell the latest versions of its operating system, Windows XP, in late October.

“This was an issue addressed by the Court of Appeals,” Justice Department spokeswoman Gina Talamona said in a statement. “We will respond promptly to their filing.”

Windows XP has run into intense scrutiny from rivals and government officials who are concerned that Microsoft is bundling various software products into XP, just as it did with its Internet browser in previous versions of Windows, the initial spark for the antitrust case against it.

“Today’s news is no surprise and is further indication of Microsoft’s delaying tactics,” said Penny Bruce, spokeswoman for Sun Microsystems Inc. in Palo Alto, Ca.

“Microsoft is petrified that this case will get to District Court,” said Ed Black, chairman of the Computer & Communications Industry Association, a technology trade group made up of Microsoft opponents.

Microsoft spokesman Vivek Varma responded that “we remain committed to resolving the issues in the case as quickly as possible. And at the same time, we’re seeking review of a critical issue.”

Jackson, through a spokeswoman, declined comment.

While upholding Jackson’s findings of illegal behavior in its June 28 ruling, the appeals court also rejected his order that Microsoft be broken in two and sent parts of the case back for new hearings.

In doing so, the appeals court walked a careful line, which forms the basis of Microsoft’s challenge. In voluminous detail, the court lambasted Jackson for ethical violations that it called “deliberate, repeated, egregious and flagrant,” for talking to reporters from various publications with agreements that the interviews would not be published until after he ruled.

The court ultimately determined that the bias partly influenced Jackson’s order to break up the company, but not his basic findings of fact and of law that formed the heart of his decision. That decision found that Microsoft had engaged in numerous anticompetitive activities to protect and extend its virtual monopoly of the operating system for personal computers.

In its appeal to the Supreme Court, Microsoft said the appeals court erred in not overturning those findings as well, and that such obvious bias could not possibly have been limited to the penalty question.