Court Grants Microsoft Request Company Will Get Quick Review Of Decision In Browser Battle
A federal appeals court granted Microsoft Corp.’s request for quick consideration of its appeal of a judge’s order forcing the company to change the way it sells its Windows 95 system to personal computer makers.
The Washington-based court Tuesday set up a schedule that requires all briefs to be filed by March 9 in the antitrust fight. The court didn’t set a hearing date.
A quick appeals court decision, particularly if it agrees with Microsoft and reverses the judge’s order, could eliminate some of the legal uncertainty surrounding Microsoft’s next operating system, Windows 98, which is slated for release in May.
“We are very pleased because we think it is important for consumers and for the entire software industry to resolve these issues,” Microsoft spokesman Mark Murray said.
Justice Department spokesman Michael Gordon said the decision “comes as no surprise.” The Justice Department opposed the request for an accelerated schedule.
Microsoft is appealing a temporary injunction, issued Dec. 11 by U.S. District Judge Thomas Penfield Jackson, that barred the company from requiring computer makers to offer its Internet Explorer browser if they want to license Windows 95. Until the appeals court rules, Jackson’s order stands. The judge is now considering a government motion to have Microsoft held in contempt of court for not complying with that order. Microsoft responded to the order by giving computer makers two new options, both of which hobble software programs.
The appeals court probably will issue a ruling within two months after it receives the last brief in the case, said Joe Sims, a Washington antitrust lawyer and former Justice Department official. He said he wasn’t surprised by Tuesday’s scheduling decision.
“When you have a preliminary injunction outstanding, it’s not that unusual to have a relatively expedited briefing schedule,” Sims said.
Separately, the two sides met Tuesday in a closed-door session with Harvard Law Professor Lawrence Lessig, who was appointed as a special court official to review the case. Lessig will make a recommendation to Jackson before the judge issues a final decision in the case. That review will continue while the appeals court considers the case.
The decision on the quick review came from two court judges assigned to consider motions for the appeals court. Those judges won’t necessarily be on the separate, three-judge panel that will hear arguments in the case, probably in March or April.
The appeals court ruling probably will come before Jackson issues a final ruling.
A higher-court decision favoring Microsoft on the temporary injunction could make it harder for the Justice Department to win its bid for a permanent order restricting the company’s marketing practices.