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Microsoft Petitions Appeals Court for Rehearing

Even as the government tries to hurry the antitrust case back into U.S. District Court, Microsoft Corp. moved to keep the action in the U.S. Court of Appeals for a little while longer.

This week, Microsoft filed for a rehearing on the issue of commingling from the Appeals Court's decision of June 28. In that decision, the Appeals Court found that Microsoft had abused its monopoly power, but sent the case back to the District Court for a new remedy.

The decision invalidated Judge Thomas Penfield Jackson's order to split the company into an operating system company and an applications company. The appeals court also ordered that a different judge preside over the remedy phase.

Microsoft wants a hearing on one of Jackson's earlier finding of fact, which the appellate court accepted, that Microsoft commingled Windows 98 and Internet Explorer code and that the commingling violated the Sherman Antitrust Act.

At issue are Internet Explorer and Windows 98.

Microsoft argues that the district court's definition of commingling would be mixing Web browsing code with other operating system code for no technical reason. The implication is that the reason would be to squelch competition.

Microsoft contends the evidence presented in court was insufficient to outweigh testimony from Microsoft Group Vice President Jim Allchin that there were technical reasons, such as operating system performance and development efficiency, that Internet Explorer and other parts of the operating system share code for similar functions.

Last week, the government asked the appeals court to put the case on a fast track in the District Court due to the rapid pace of the high-tech industry and the broad impact of the case.

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About the Author

Scott Bekker is editor in chief of Redmond Channel Partner magazine.

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