Microsoft Corp asked the US Supreme Court to overturn a ruling that the company illegally protected its Windows operating system monopoly, saying a judge's discussions with reporters infected the entire case.
The world's largest software maker also asked a federal appeals court to halt remedy proceedings while the nation's highest court considers the appeal. The justices may decide by early October whether to take the case.
"Microsoft is entitled to a factfinder who both appears and in fact is impartial," the appeal said. The filing comes as Microsoft prepares to release the next version of Windows, XP, on Oct. 25.
Microsoft asked the Supreme Court to address only the misconduct by US District Judge Thomas Penfield Jackson, whose order to split the company was overturned by the appeals court.
The company said it might seek high court review later on other issues, including whether it unlawfully squashed competition.
"The Supreme Court might, in their judgment, be willing to get into an issue that has nothing to do with the antitrust complexities of the case," said Mark I. Levy, an appellate specialist with Howrey & Simon in Washington.
The US Court of Appeals for the [Washington] DC Circuit in June upheld the bulk of the monopoly-maintenance case filed against Microsoft by the Justice Department and a group of states. Although the 7-0 court disqualified Jackson from further participation, it stopped short of saying his off-the-bench comments invalidated his factual findings and legal conclusions.
News of the filing came after trading closed for the day.
Earlier, Microsoft shares rose US$0.22 to US$66.35.
"They're absolutely pushing forward on every possible front, including settlement talks," said Steven Appledorn, a fund manager at Birmingham, Michigan's Munder Capital Management, which holds about 5 million shares of Microsoft in its US$45 billion portfolio. "There were a couple of things they just had to take to the next level." Justice Department spokeswoman Gina Talamona said the government "will respond promptly" to the latest Microsoft filing.
The government probably will "accuse Microsoft of trying to delay this," Levy said. Critics have accused Microsoft of maneuvering to prevent any remedies from being imposed at least until after XP is released.
The company nonetheless moved with unusual speed in filing the appeal. Under the Supreme Court's rules, Microsoft could have waited to file its papers until the end of October.
Several state attorneys general have suggested they may seek changes to Windows XP, the latest version of an operating system that runs about 90 percent of the world's computers.
Windows XP rolls a media player, Internet telephone capacity, online identification software and other programs into the operating system.
Jackson drew fire for interviews he gave during and after he ruled in the case. Author Ken Auletta said he interviewed Jackson, on tape, for more than 10 hours and was allowed to see notes the judge took during the 78-day trial.
Jackson was quoted in Auletta's book, World War 3.0: Microsoft and Its Enemies, as comparing Microsoft's attitude in court to members of a drug gang.
The Washington-based appeals court said the comments "convey the impression of a judge posturing for posterity, trying to please the reporters with colorful analogies and observations bound to wind up in stories they write." The appeals court nonetheless said it "discerned no evidence of actual bias" and wouldn't order the entire case retried.
"That the appeals court didn't find actual bias will be an obstacle that Microsoft will have to overcome," said William G. Ross, an expert on legal ethics who teaches at Samford University in Birmingham, Alabama.
Microsoft says the appeals court applied the wrong legal standard. The fact that Jackson appeared to be predisposed against Microsoft should be enough to warrant a new trial, the Redmond, Washington-based company said.
"The threat that the judge's misconduct poses to the public's perception of judges and the process of judging is palpable," Microsoft argued.
"It's possible the Supreme Court could be very interested in that issue as the ultimate and highest court in the land and the court responsible for setting standards for all federal judges," said Harvey Saferstein, an antitrust lawyer in Los Angeles with Mintz Levin.
Microsoft's appeal marks the second trip to the Supreme Court for the three-year-old case. The high court last year rebuffed a Justice Department request to bypass the appeals court level and review Jackson's order directly.
Even if the high court ultimately rejects the appeal, Microsoft in the meantime might gain leverage in arguing for a delay in remedy proceeding, some experts said.
"They have nothing to lose and everything to gain," Levy said.
The appeals court as early as Friday is scheduled to issue its "mandate" to the lower court, formally returning the case for more proceedings. Microsoft today asked the appeals court to postpone issuance of the mandate until the Supreme Court acts.
The Justice Department and 18 states want to press ahead with a remedy hearing before a new trial judge.
"The computer industry continues to change very rapidly," Iowa Attorney General Tom Miller said in a statement. "It is best to get this case going forward again at the district court, as the court of appeals ordered." Microsoft's critics say the company is incorporating the new features as a means of buttressing the dominance of Windows.
Microsoft says it is simply adding useful new functions for computer users.
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