- The Washington Times - Wednesday, August 8, 2001

Microsoft Corp. appealed to the U.S. Supreme Court yesterday, asking the judges to overturn a ruling that the company is an illegal monopoly.
The Redmond, Wash., software developer's request for an appeal rests on the contentious issue of whether U.S. District Judge Thomas Penfield Jackson was biased against the company during the 76-day antitrust trial last year.
With its request for a high-court appeal, Microsoft is essentially seeking a review of what what has become a key issue in the lengthy trial the appearance of bias by Judge Jackson.
"We will continue to work to resolve the remaining issues in the case through settlement, but we are seeking Supreme Court review of this important issue," Microsoft spokesman Vivek Varma said.
Iowa Attorney General Tom Miller, who led 19 states and the District of Columbia in their fight against Microsoft, said he opposes a Supreme Court appeal of the case.
"The states will resist the appeal to the Supreme Court and motion for a stay. The computer industry continues to change very rapidly. We think it is best to get this case going forward again at the District Court, as the Court of Appeals ordered," Mr. Miller said.
U.S. Department of Justice spokeswoman Gina Talamona said Judge Jackson's conduct "was an issue addressed by the Court of Appeals."
Microsoft wants all of Judge Jackson's conclusions thrown out.
In an unanimous decision June 28, the U.S. Court of Appeals for the District of Columbia Circuit set aside Judge Jackson's order breaking Microsoft in two because he "made numerous offensive comments."
But the appeals court judges did agree Microsoft has operated as a monopoly in the market for operating systems, a move that illegally stifled competition. Microsoft said following that decision last month that it will change its operating system to address concerns raised by the federal court.
The appeals court also narrowed some of the findings of violations and decided it will send the case to a new trial judge, who must decide whether a breakup or some other penalty is warranted for Microsoft. The appeals court judges based their decision in part on statements by Judge Jackson, who was critical of Microsoft and co-founder Bill Gates.
Judge Jackson's comments about Microsoft included calling Mr. Gates "Napoleonic" and comparing the company to a drug-dealing street gang.
The appeals court said those comments "seriously tainted" the case, and it reprimanded the judge. But the seven judges they said he didn't show "actual bias."
Microsoft said yesterday it is seeking Supreme Court review because it disagrees with the appeals court's conclusion that Judge Jackson failed to demonstrate actual bias.
Microsoft also said Supreme Court review is necessary "to restore public confidence in the integrity of the judicial system," the company wrote in court documents filed late yesterday.
Microsoft made its request for appeal two days before the case was to be sent to a new judge to decide what penalty it would face. In a second filing yesterday, Microsoft asked the appeals court to hold off any action until the Supreme Court decides whether to take the case.
Legal experts said yesterday that they doubted the Supreme Court would take the case, and that Microsoft is playing for time.
Microsoft asked the appeals court July 18 to grant a rehearing on whether the company illegally bundled code for Web browsing software with that of its dominant Windows desktop operating system. The appeals court last week turned down Microsoft's request.
The Justice Department, 19 states and the District of Columbia sued Microsoft in May 1998, claiming the software developer tried to thwart competition. Microsoft appealed after Judge Jackson entered his final judgment June 7, 2000.
New Mexico reached a settlement with the company in July and dropped out of further litigation.
Microsoft plans to release the newest version of its Windows operating system this fall. Some state attorneys general fear the new XP software will extend Microsoft's monopoly.

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