U.S. Government asks court to deny MS rehearing

Lawyers for the U.S. Department of Justice and the 18 state attorneys general opposing Microsoft Corp. in its antitrust case filed a brief with the U.S. Court of Appeals for the District of Columbia Thursday asking it to deny the software maker’s request for a rehearing.

The government said in a five-page filing that Microsoft went beyond the scope of what is allowed in this stage of the legal process, and covered areas not germane to the appellate court. The government also said that many of the issues raised in Microsoft’s filing for a rehearing have already been addressed by the court, and rejected.

Last week, Microsoft asked the Appeals Court to rehear part of the case that had to do with the “commingling” of its Internet Explorer Web browser code with its Windows operating system. Microsoft said in that the Appeals Court overlooked filing of critical evidence regarding the commingling of code.

The government Thursday shot back at that claim. “Microsoft’s argument … is clearly erroneous and provides no sound reason for the Court to revisit its contrary conclusion,” the filing stated.

The exchange of legal briefs continued as the Appeals Court prepares to act on the next step of the landmark antitrust case. The Department of Justice (DOJ) has already asked the court to speed the case to a trial court rather than waiting the typical 52 days the court has to hand it off. They argued that moving the case as quickly as possible is in the best interest of competition and the public.

Microsoft has told the court that it opposes a speedy trial.

Meanwhile, the company has already made one concession based on the Appeals Court decision to uphold of a lower court ruling that Microsoft illegally commingled its browser and operating system code.

The company said on July 11 it would allow PC manufacturers to have the option to remove the Internet Explorer icon from the Windows desktop in Windows XP and earlier versions of the software, and has included Internet Explorer in the add/remove menu in Windows XP.

PC makers can also now solicit other software makers to have their icons included in the Windows startup, a concession AOL Time Warner Inc. said it was pursuing, according to Kathy McKiernan, a spokeswoman for the company.

The government also argued Thursday in its filing that Microsoft’s request to rehear parts of the case at the appeals level does nothing to establish a basis that the Appeals Court erred, the plaintiffs argued.

“The Court left to the district court on remand the task of fashioning an appropriate decree to remedy the effects of Microsoft’s unlawful conduct and restore competition, to the extent possible,” the government response said. “It is time for that process to go forward.”

Microsoft, in Redmond, Wash., can be reached at http://www.microsoft.com. The DOJ is on the Web at http://www.usdoj.gov.

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