Microsoft Asks for More Room in Appeals Brief

Limits on the length of appeals briefs proposed by the U.S. Department of Justice in its antitrust lawsuit against Microsoft Corp. would place "unfair limitations" on the software maker, which further argued in a court document filed Thursday that a longer period of time for filing briefs is needed because of the importance of the case.

Microsoft on Monday proposed a schedule for filing briefs along with recommendations for how long those briefs should be, to which the DOJ responded on Tuesday -- two days before its deadline. Microsoft's return salvo filed Thursday hadn't been due until Tuesday of next week.

The scheduling briefs are part of the routine series of volleys in the appeals case, but what hadn't been expected was that the sides would file early. Thus far, both the DOJ, which along with 19 states successfully sued Microsoft in federal court, and the software maker usually have filed court briefs at the last minute.

Microsoft wants to be allowed to file a principal brief in the appeal of 56,000 words. The DOJ argues that is too long and the company should be held to no more than 24,000 words. The government would follow the same length limit for federal issues, with states allowed to address their concerns in a 7,000 word brief.

The dueling documents are being filed with the U.S. Court of Appeals for the District of Columbia Circuit, which will hear the appeal. The government and U.S. District Judge Thomas Penfield Jackson, the trial judge in the case, wanted the U.S. Supreme Court to hear the appeal directly, bypassing the intermediary appellate court. They argued that the case is sufficiently important to the public interest to warrant being on the appeals "fast track." The Supreme Court declined to hear the case directly.

"It is truly remarkable that appellees now seek to shift to Microsoft the blame for, and the burden of, the delay that resulted from their tactical decision to seek direct review in the Supreme Court," Microsoft said in the brief filed Thursday.

The DOJ argued in its document on Tuesday that the appeals briefs should be filed by the end of this calendar year because of the importance of the case. The briefs would in fact have been filed by November had the government not chosen to seek direct Supreme Court review, Microsoft contends.

Microsoft has requested that principal briefs from both sides be filed within 60 days of the appellate court setting the brief schedule, after which the company would have 30 days to file a response to the government's principal brief.

The DOJ countered that Microsoft doesn't need that length of time because the District Court's final order was filed June 7, while other crucial rulings in the case were made nearly 11 months ago and in April of this year.

Public interest would be better served "in a proper disposition of the case, not in one reached in haste," Microsoft argued in the document filed Thursday. This was the last expected brief related to the appeals schedule, which the court is expected to issue soon.

Microsoft, in Redmond, Washington, can be reached at +1-425-882-8080 or The DOJ, in Washington, D.C., can be reached at

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