Updated from 2:24 p.m. EDT
Seeking an audience with the federal appeals court that ruled in its favor once before,
U.S. Supreme Court
Wednesday to decline to hear its appeal of a court-ordered breakup and instead to send the case to the lower court.
Arguing that "full and fair consideration" of its appeal would pose an unwieldy burden on the Supreme Court, Microsoft plainly stated that it hopes to winnow the number of violations included in the case in the lower court.
"If any issues remain after the court of appeals' decision that merit the Supreme Court's attention, the Supreme Court could review them on certiorari," the software company wrote in its brief.
The filing is the first in a series that the Supreme Court scheduled to consider Microsoft's appeal. A federal district judge ruled that the Redmond, Wash.-based company illegally used its monopoly position to compete unfairly and ordered it split in two.
Investor reaction was negligible. Microsoft closed Wednesday regular trading down 1 3/16, or 1.7%, at 67 13/16.
Microsoft is trying to steer its appeal to the
U.S. Circuit Court of Appeals for the District of Columbia
, while federal prosecutors intend to use an obscure law known as the
to send the company's appeal directly to the Supreme Court. A three-judge panel of the court of appeals, in a related case, issued an important ruling in Microsoft's favor two years ago.
Calling federal prosecutors "afraid" of the standard judicial process, Microsoft on June 19
asked Thomas Penfield Jackson, the district judge who ruled against the company in the antitrust case, to deny a prosecution motion to send the company's appeal of his decision directly to the U.S. Supreme Court.
At the time, the company presented a three-fold argument: That the consolidated federal-state case did not meet the Expediting Act's narrowly defined statutory application; that the case's general importance was insufficient grounds to warrant use of the Expediting Act; and that using the act would actually slow the appeals process because the Supreme Court would eventually end its session, possibly sending appeals back down and further convoluting the whole matter.
The whole move was doomed, as Jackson had already clearly stated his intention to certify the appeal directly to the nation's highest court. But it set the stage for Wednesday's narrower protestations, including Microsoft's most forceful argument -- rephrased and repeated throughout the document -- that the case is extraordinarily complicated.
After discussing the "numerous complicated factual issues," the "complexity of the technologies at issue" and the "wide range of substantive and procedural issues," the company concluded that "the sheer number of issues raised by Microsoft's appeals makes this case completely unsuitable for direct appeal."
Microsoft also criticized Judge Jackson for granting interviews to various news organizations during the trial and said his remarks indicated he had failed to provide a fair hearing of the case.
"The district court's blunt comments to the press raise serious questions about its impartiality and betray a misguided belief that appellees were entitled to the remedy of their choice, no matter how extreme, simply because they had prevailed on liability," the company wrote.
The Justice Department, which led the antitrust case, had a muted response to Microsoft's latest argument. "The appeal is pending before the Supreme Court, and the department will respond in its filing," said Gina Talamona, spokeswoman for the department.
Federal prosecutors and 17 state attorneys general must file a formal response by Aug. 15. On June 7, Jackson
ordered that tMicrosoft be split in two and placed restrictions on its business practices to remedy antitrust violations. He subsequently stayed both remedies.
The appeals court on June 13 volunteered to hear any
appeal as a full panel, rather than as a three-judge panel, "in view of the exceptional importance" of the case.
The breakup ordered by Jackson would place the Windows operating system in one company and create a second business for everything else, including software applications, the Internet Explorer Web browser and the Microsoft Network Internet service provider and network of Web sites.