Article 40 of 352
High court gives Gates a pass Supreme Court declines to
review government's case againstMicrosoft
San Francisco Examiner
Somewhere near Seattle, Bill Gates is smiling.The Supreme
Court said Tuesd ay it would pass on the chance to hear the
government's antitrust suit against M icrosoft. As a result,
Gates and company are now headed back to the familiar U.S .
Circuit Court of Appeals for the District of Columbia.
Twice before, this very court overturned rulings from
lesser courts regarding antitrust charges against Microsoft.
Gates is hoping to go three for three.
That court "has a generally non-interventionist policy,"
said Nicholas Economides , a professor of economics at
New York University's Leonard N. Stern School of Business.
"That's because the Washington court of appeals has in the
past ruled that Microsoft could include in their operating
system any functionality it wanted."
Of course, the government is hoping the third time is the
charm. Since 1998, the Department of Justice has been working
overtime to prove Microsoft has abused its dominant market
position by bundling products into its Windows operating
system and forcing computer makers to exclude competitors.
Joined by 19 state attorneys general, the Justice
won a major victory earlier this year when U.S. District
Judge Thomas Penfield Jackson ordered Microsoft to split
itself into two companies because it had violated antitrust
Now, the government's victory hangs in the balance.
Microsoft CEO Steve Ballmer appeared on TV within minutes
of the announcement Tuesday to express his delight about the
higher court's action.
"We're glad to have a chance to present (our position) to
the appellate court," Ballmer said.
Justice Department spokeswoman Gina Talamona was less
jubilant, saying, "We look forward to presenting our case to
the court of appeals as expeditiously as possible."
According to the experts, there's little chance that
anything will be decided expeditiously. Most observers feel
the appellate process could delay the case another year, or
Economides expects the appeals court to overturn
Jackson's ruling and send the case back to the federal judge
with instructions to hold hearings on possible remedies to the
"Judge Jackson's remedy did not have enough procedure,"
Economides said. "He made up his
mind in one day. It's the biggest weakness in his ruling.
He just took the DOJ suggestion for a remedy and imposed it.
This is not the way things work."
"In complicated business matters, there needs to be more
discussion," Economides said. "They will send it back
to Jackson and ask him to do a more in-depth analysis of the
There's also the possibility the case will be affected by
the upcoming presidential elections, Economides said. A
newly elected president, especially a Republican, would change
the makeup of the Justice Department and push for a
If no settlement is reached, one thing is certain: another
round of appeals. Ironically, whichever way the appeals court
rules, the other side is bound to ask the Supreme Court to
take up the case again.
Microsoft's supporters are confident the software giant
will fare well in any court other than Jackson's.
"I think that Microsoft is well prepared to argue their
case before the Supreme Court or the appellate court," said
Jonathon Zuck, president of the Association for Competitive
Technology, a pro- Microsoft trade association representing
over 9,000 information
technology companies. "Either one of the courts will
recognize the huge majority of this case has been rendered
moot by advancement in technology."