By D. IAN HOPPER
WASHINGTON – Microsoft, attempting again to preserve its corporate structure, asked a federal appeals court today to find that a lower court erred in deciding the software giant was an unfair monopoly and to overrule a breakup order.
The brief, submitted to the U.S. Court of Appeals for the District of Columbia, blasts the lower court of U.S. District Judge Thomas Penfield Jackson for perceived mistakes in handling the effort by the Justice Department and several state attorneys general to split the company in two.
“The case went awry from the outset, and our appeal provides a comprehensive picture of why Microsoft should win this case,” said Microsoft spokesman Vivek Varma, after the papers were filed here.
Responding, Justice Department spokeswoman Gina Talamona said, “The judgment (of the lower court) is well supported by the evidence offered during a 78-day trial, including thousands of pages of Microsoft’s own documents. We are confident in our case and look forward to presenting it to the Court of Appeals.”
The brief states that Microsoft did not engage in anti-competitive conduct, and that consumers like Microsoft products.
“Revealing a profound misunderstanding of the antitrust laws, the District Court condemned Microsoft’s competitive response to the growth of the Internet and Netscape’s emergence as a platform competitor, conduct that produced enormous consumer benefits,” the company said in its legal filing.
“The District Court branded Microsoft’s conduct anti-competitive, even though it recognized that Microsoft did not foreclose Netscape from the marketplace,” it said.
Netscape Corp.’s Navigator software was the standard Internet browser until Microsoft’s Internet Explorer took over. The government has maintained that when Microsoft integrated its Windows operating system with Internet Explorer, it pushed competitors like Netscape out of the market.
On Jan. 12, the government is due to file its brief with the appeals court. Microsoft will have a chance to reply by the end of January, and oral arguments in the landmark antitrust case are set for late February. Jackson’s ruling came in early June.
The Justice Department had wanted the case passed directly to the Supreme Court, citing a long-standing law that allows such high-profile cases special consideration, but the high court turned that plea aside.
The brief filed today attacked Jackson for his comments outside the courtroom.
“By repeatedly commenting on the merits of the case in the press,” the brief said, “the district judge has cast himself in the public’s eye as a participant in the controversy, thereby compromising the appearance of impartiality, if not demonstrating actual bias against Microsoft.”
If the appeals court calls for a new trial, Microsoft said, it wants a judge other than Jackson to preside.
Also today, one “friend of the court” brief was filed in favor of Microsoft, by the Association for Competitive Technology. ACT, founded in 1998 at the time the federal government’s effort against Microsoft was escalating, has been a frequent defender of the Redmond, Wash.-based firm.
ACT argues in its brief that Microsoft improved its products by fusing them together, rather than bundling its operating system and Internet browser together to shut out competitors, as the court concluded.
The group also said that splitting the company into two – one with the Windows operating system and another comprising everything else the company controls – would hurt the market by eroding the industry standard. Windows runs on over 90 percent of the world’s personal computers.
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