MICROSOFT says Supreme Court should take antitrust case because of judge's alleged bias

Wednesday, August 8th 2001, 12:00 am

By: News On 6

WASHINGTON (AP) _ Saying the trial judge should have been thrown off the case because of derogatory comments he made about the company, Microsoft Corp. asked the Supreme Court to overturn rulings that it violated antitrust laws.

The software giant argued that U.S. District Judge Thomas Penfield Jackson should have been dismissed before he ruled that Microsoft acted as an illegal software monopoly.

``The threat that the judge's misconduct poses to the public's perception of judges and the process of judging is palpable,'' Microsoft wrote.

Microsoft petitioned the nation's highest court two days before an appeals court was due to send the case to a new judge to decide what penalty the Redmond, Wash., company should face.

The company is set to release the newest version of its Windows operating system this fall _ a product that several state attorneys general and other critics fear will extend Microsoft's monopoly in the software market.

The Justice Department and the states that brought the original antitrust charges against Microsoft must decide whether to attempt to block the release of Windows XP even as the two sides explore possible settlements in the current case.

The Justice Department said the issues raised by Microsoft's latest appeal were old.

``This was an issue addressed by the Court of Appeals,'' Justice Department spokeswoman Gina Talamona said. ``We will respond promptly to their filing.''

``The states will resist Microsoft's appeal to the Supreme Court and its motion to stay,'' Connecticut Attorney General Richard Blumenthal said Tuesday. ``We think the public is best served by moving forward again in the District Court.''

Some legal experts questioned whether Microsoft's petition to the high court was designed to buy the company time until its new operating system gets to the market.

``The Supreme Court is not going to reverse the Court of Appeals, Microsoft is not going to walk free, so its a delaying tactic,'' University of Baltimore law professor Bob Lande said. ``They have no realistic chance of getting this overturned.''

Windows XP is scheduled to be delivered to computer manufacturers at the end of this month and to be on store shelves in October.

Microsoft simultaneously asked the federal appeals court to delay sending the case to a new lower court judge until the Supreme Court decides whether it will take the appeal.

Company spokesman Vivek Varma said Tuesday's request does not rule out settlement talks, which are in a preliminary stage. Microsoft chairman Bill Gates, who was speaking at a conference on artificial intelligence in Seattle, did not take questions on the case.

Congress and several state attorneys general have asked Microsoft to change Windows XP, saying that it would repeat many of the same business practices already found to be illegal and would force consumers to use more Microsoft products.

Microsoft maintains that it is only providing the features consumers want, and that its customers will benefit from Windows XP.

The federal appeals court earlier this summer threw out Jackson's ruling breaking Microsoft into two companies, removed the judge from the case and harshly criticized his comments to news media in which he compared Gates to Napoleon and the company to a drug-dealing street gang. Through a spokeswoman, Jackson declined comment Tuesday.

The appeals court upheld some of the judge's findings that the company acted as an illegal software monopoly, improperly hurting competition. It is that ruling that Microsoft wants the Supreme Court to review.

Microsoft said in its appeal to the nine justices that Jackson should have been disqualified from the case when he gave his first interview. If that had happened, Jackson's entire final verdict would have been thrown out.

The federal appeals court dismissed that argument in its June ruling.

Microsoft also told the Supreme Court that it may want to overturn a judgment against the company's exclusive licenses with computer manufacturers, a decision that the company sought to protect its operating system monopoly, and other rulings.

This is the second time the antitrust case has reached the Supreme Court. After the company appealed Jackson's ruling last year, the Justice Department wanted a fast track straight to the Supreme Court, bypassing the appeals court. Microsoft objected, and the justices denied the government's request.

Microsoft's stock closed Tuesday at $66.35, up 22 cents in trading on the Nasdaq Stock Exchange. In after-hours trading, it dropped to $66.27.