Microsoft Aims Antitrust Rebuttal at Appeals Court

Microsoft Corp. is probably beyond the point of being able to change the mind of antitrust trial judge Thomas Penfield Jackson. So last week the company tried out the legal arguments it may use in future court appeals.

In new court papers filed in U.S. District Court here, Microsoft argued that it isn't a monopoly and that it didn't break any laws, illegally tie its browser to Windows or monopolize the PC operating system market.

"Having an extremely popular product does not make a company a monopolist," Microsoft said.

Jackson, in his findings of fact issued in November, saw it differently and is almost certain to decide that the software firm violated antitrust law.

Yee Wah Chin, an antitrust attorney at Squadron, Ellenoff, Plesent & Sheinfeld LLP in New York, said Microsoft is "setting the foundation for arguments" it will raise on appeal.

Small Victories

"I don't think Microsoft's most rabid legal supporter expects them to win everything on appeal," said Rich Gray, an antitrust lawyer at Outside General Counsel of Silicon Valley in Menlo Park, Calif. But Microsoft is trying to "set up sufficient arguments, so that on appeal any remedy that is imposed on them is something they can live with - that's a Microsoft victory," he added.

The two sides are involved in settlement talks with a mediator. They are due back in court Feb. 22 for more arguments. A verdict will follow.

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