APPEALS court denies Microsoft request for rehearing, considers Supreme Court bid

<br>WASHINGTON (AP) _ An appeals court reaffirmed on Thursday that Microsoft illegally mixed its Windows operating system with its Web browser. <br><br>The software giant is still considering a Supreme

Thursday, August 2nd 2001, 12:00 am

By: News On 6

WASHINGTON (AP) _ An appeals court reaffirmed on Thursday that Microsoft illegally mixed its Windows operating system with its Web browser.

The software giant is still considering a Supreme Court challenge in the four-year antitrust case. Legal experts, however, suggested that would be futile.

``You had a unanimous decision by a very conservative court of appeals that found them guilty eight times of monopolization,'' said University of Baltimore law professor Bob Lande. ``The Supreme Court isn't going to reverse that.''

The U.S. Court of Appeals for the District of Columbia denied Microsoft's request for a rehearing in a brief order, clearing the way for the case to be sent back to a lower court to decide Microsoft's penalty for being an illegal monopoly.

``Nothing in the court's opinion is intended to preclude the District Court's consideration of remedy issues,'' the appellate judges said.

In its June order, the appeals court decided that Microsoft illegally commingled software code for the two flagship products in an attempt to stunt competition and keep consumers from using one without the other. Microsoft asked the court to reconsider.

The appeals court also ruled that Microsoft had operated as an illegal monopoly and harmed consumers. At the same time, the court reversed Judge Thomas Penfield Jackson's order breaking up the company, narrowed the number of antitrust violations against Microsoft and said another lower court judge would decide the penalty.

The commingling issue was a central tenet of the Justice Department's antitrust case.

However, the jurists Thursday also denied the Justice Department's request to speed up the case. Their decision keeps the lower court from tackling the penalty decision for seven days.

During that time, Microsoft could make the Supreme Court bid.

In brief statements, representatives for both the Justice Department and the state attorneys general suing Microsoft said they were pleased with the appeals court's refusal to reconsider commingling, and looked forward to the next phase of the case.

Jim Desler, a Microsoft spokesman, said the company is also looking to the future. ``We remain committed to moving forward promptly in the legal process and continue to remain open to resolving any remaining issues in this case as quickly as possible.''

``We continue to review our options with regard to Supreme Court review,'' Desler added.

Microsoft's practice of incorporating multiple features in Windows has been a centerpiece in the antitrust case.

In October, Microsoft's new Windows XP operating system is scheduled to reach store shelves. Windows XP includes many more added features, and has been criticized by state attorneys general, Microsoft competitors and members of Congress.

Competitors argue Microsoft uses the operating system to dominate the market for other technology; Microsoft contends it simply is adding features users want.

Since the appeals court ruling only applies to previous versions of Windows, the states would have to prove that Microsoft is continuing the same anticompetitive practices with Windows XP.

Lande said that the states could argue that Microsoft is trying to monopolize a new market with Windows XP's new features _ like instant messaging or streaming media _ and that a judge should stop the product's release.

Legal observers said they were not surprised by Thursday's decision, and accused Microsoft of playing for time before Windows XP ships.

``I fully expected that they would deny the rehearing, because I didn't think the issues were substantial,'' said Howard University law professor Andy Gavil. ``I thought basically they had plowed that route.''

Added Lande: ``It was never anything more than a delaying tactic on Microsoft's part. They never had a prayer.''