Microsoft's Appeal Notice Criticizes Lower Court

SAN FRANCISCO (06/13/2000) - Microsoft Corp. Tuesday filed notice of its intent to appeal last week's ruling by a federal judge ordering a breakup of the company. The software maker argued that the antitrust trial proceedings were marred by a litany of errors.

The vendor also asked the U.S. District Court of Appeals to stay the breakup order and all other remedies ordered by U.S. District Court Judge Thomas Penfield Jackson until the higher court has had a chance to hear the appeal and issue its decision.

Microsoft's appeal follows a ruling from Judge Jackson earlier today, in which he said he would not rule on the vendor's request to stay the remedies until the company had filed its appeals notice with the higher court. That ruling from Judge Jackson essentially agreed with a claim made Monday by the U.S. government that Microsoft had been stalling for time in the case.

In its 39-page brief filed with the U.S. Court of Appeals, Microsoft cites what it alleges to be "an array of serious substantive and procedural errors that infected virtually every aspect of the proceedings."

"These flaws culminated in the entry of unprecedented relief that extends far beyond the case that was presented, without affording Microsoft an evidentiary hearing," Microsoft argued in its filing.

The software maker will submit a more detailed appeal at a later date, but in the meantime offered the following examples of how it believes the district court erred in coming to its verdict. According to Microsoft, the District Court:

-- failed to address evidence submitted by Microsoft showing why the company did not charge consumers a separate fee when it added its Internet Explorer Web browser to its Windows operating system, a feature that Microsoft says clearly benefited developers and consumers;-- failed to address "unrefuted" evidence submitted by Microsoft that benefits of Windows with integrated support for the Internet can't be duplicated by combining a standalone operating system with a standalone browser like Netscape Navigator-- failed to address the fact that Navigator was distributed on 22 percent of shipments of new personal computers, and was thus not shut off from the OEM (original equipment manufacturer) distribution channel.

Microsoft urged the appeals court to handle its request quickly. Judge Jackson recommended that the breakup order not be enforced until the appeals process has run its course, but he did order that certain behavioral restrictions go into effect 90 days from his order, and required Microsoft to submit a plan for its breakup after four months.

"Many extreme provisions of the judgment start to take effect 90 days after its entry, and Microsoft must begin preparing immediately if it is to be in compliance with the judgment in 84 days. Microsoft therefore respectfully requests that the Court set an expedited briefing schedule on Microsoft's motion so that it can be resolved as soon as possible," Microsoft said in its filing.

The software giant also filed separate motions Tuesday seeking to expand the number of pages permitted in its stay motion, because of the "numerous issues" to be raised in its appeal.

Microsoft has posted the filings it submitted Tuesday on its Web site at http://www.microsoft.com/presspass/trial/default.asp/.

Microsoft, in Redmond, Washington, can be reached at +1-425-882-8080 or at http://www.microsoft.com/. The U.S. Department of Justice, in Washington, D.C., can be reached on the Internet at http://www.usdoj.gov/.

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