WASHINGTON (AP) — Stopping just short of accusing Microsoft of stalling, the Justice Department asked an appeals court to deny the companys request to re-examine whether the software maker illegally mixed software code for two products.
Microsofts challenge is clearly erroneous, repeating the same arguments it made in its principal brief on appeal, the Justice Department told the court Thursday. Microsoft also treats its petition for rehearing as an occasion to expound upon a variety of topics, most of them irrelevant to the issue at hand.
The U.S. Court of Appeals for the District of Columbia ruled in June that Microsoft had operated as an illegal monopoly and lessened consumer choice. But it also reversed the trial judges order breaking up the company and said a different judge must decide a new penalty.
The judges had said Microsoft illegally commingled software code for its Web browsing program and its dominant Windows operating system in an attempt to harm competition. Microsoft wants the court to reconsider, but the Justice Department wants to move on.
It is time for that process to go forward, the government wrote.
Microsoft Chief Executive Steve Ballmer did not directly reference the Justice Departments filing in a speech to financial analysts Thursday, but he vigorously defended the company, and especially the forthcoming version of its operating system, Windows XP.
Were very open and interested in settling this thing and getting it behind us, he said of the antitrust case. The companys behaved with the highest integrity and trust for the thing that is most important: the interests of our customers and the interests of our partners.
Microsofts practice of incorporating multiple features in Windows has been a centerpiece in the antitrust case, and the new system is already coming under fire although it is not due out until October.
While Microsoft contends it simply is adding features that users want, competitors say the company uses its muscle with the operating system to dominate the markets for other technology.
In response to the appeals courts ruling, Microsoft changed its contracts with computer manufacturers to let them remove icons for its Web browser, and let consumers remove the program altogether. During the antitrust trial, Microsoft claimed that couldnt be done.
Earlier this week, Sen. Charles Schumer, D-N.Y., called on Microsoft to do the same thing with many other programs in Windows XP. Those programs include a new instant messaging system, digital photo support and streaming media software.
Schumer wants some of the 18 state attorneys general who have sued the software giant to go to court to stop Windows XP from hitting store shelves in October unless the Redmond, Wash., company complies.
Ballmer said he was shocked and dismayed by the criticism of the product and the attempts to delay its release.
Bill Gates, Microsoft chairman and chief software architect, accused Microsofts competitors of trying to limit consumer choice so their companies can thrive.
I think people will figure out whats going on, Gates said.
Legal experts have said that Microsofts strategy so far seems to be clock management, buying enough time for Windows XPs release, which is essential to the companys overall Internet strategy.
Kevin Sullivan, a former Justice Department lawyer now in private practice, said the chance of the appeals court granting a rehearing is very small because the judges unanimous opinion was very concise and complete.
That was one of the best-written opinions Ive seen in a number of years, no matter what you think of the merits, said Sullivan, who helped write a brief in favor of Microsoft. Its an opinion I think will have a long-standing utility across the antitrust spectrum.
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