Microsoft case heading for Supreme Court

Microsoft appears to have "won the battle but lost the war" in its

effort to keep the antitrust case from being reviewed by the US Supreme Court.

On one hand, the Appeals Court denied a government motion not to hear Microsoft’s

request for a stay of the restraining order. But the court also told Microsoft

that it would stop the Appeals process as soon as Federal Judge Thomas Penfield

Jackson refers the case to the Supreme Court, a move expected to be announced

within the next 48 hours.

Microsoft last week petitioned the Appeals Court to stay the temporary

restraining orders issued by Jackson as part of his antitrust verdict against

the company. The Appeals Court said it would hear Microsoft’s petition for as

long as the case is not being reviewed in the higher court. After Jackson refers

the case to the Supreme Court, only that body can stay the restraining order.

Microsoft’s only hope will be that the Supreme Court will refer the review of

Microsoft’s general appeal back to the Appeals Court.

While the Supreme Court is scheduled to close for a three-month recess at the

end of this month, legal experts said the court is likely to review the

Microsoft stay request before going on recess. A temporary stay can be, and is

likely, to be granted by even a single Supreme Court judge. Microsoft spokesman

Jim Cullinan said Microsoft is confident that the Supreme Court justices would

have ample opportunity to act on its stay request before the business

restrictions take effect in September. "We believe whichever court does

this, whether it is the appeals court or the Supreme Court, our stay motion will

be ruled on sooner than later."

Government lawyers were pleased despite the denial of their motion by the

Appeals Court. ''We're very pleased with the court's ruling that it would stay

further proceedings if the district court certifies the case for direct appeal

to the Supreme Court,'' said spokeswoman for the Justice Department Gina

Talamona. Microsoft on Monday also pleaded with Jackson not to send the case to

the Supreme Court, arguing that the company has a right to have the case go

through the regular legal process. "There is no justification for tendering

a complex case with voluminous records directly to the Supreme Court,''

Microsoft lawyers told Jackson.

Jackson is expected to ignore Microsoft’s pleas on the ground that he has

the right to refer the case and that the importance of the matter warrants an

immediate review at the highest judicial level.