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Appellate court will hear MS whinge

'The trial sucked, and we're about innovation...'

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MS on Trial Tuesday was an incredibly busy day in Washington for Microsoft and the US Department of Justice (DoJ). First, US District Judge Thomas Penfield Jackson accommodated the DoJ, as expected, by withholding judgment on a stay of his remedies which had been requested by Microsoft, until after the company filed its long-promised notice of appeal.

This, of course, surprised no one, as the DoJ, which favours suing the appeal directly before the US Supreme Court, could not file its motion to expedite until Microsoft filed its notice of appeal, a situation which clearly worked to the company's advantage. Jackson favours the expedited appeal too; and has shown some evidence lately of taking personal pleasure in pissing off the Redmond brass.

So on Tuesday it came down. "Consideration of a stay pending appeal is premature in that no notice of appeal has yet been filed," Jackson wrote in a terse statement, as if anyone needed to be told.

Microsoft has been playing for time against further action, while simultaneously mounting a colossal PR campaign appealing to pity over its shocking deprivation of due process. Judge Jackson's decision, which keeps the clock running on his 90-day buffer before remedies commence, was clearly meant to force Microsoft to put up or shut up.

And put up it did. Microsoft filed not only notice, but a full brief, with the US Court of Appeals Tuesday afternoon, citing "an array of serious substantive and procedural errors that infected virtually every aspect of the proceedings" in Judge Jackson's courtroom.

Almost immediately after receiving the brief, the full appellate court agreed to hear the case "in view of its exceptional importance."

In normal circumstances, an appeal would be heard by a three-judge panel, then move up to the full court. Thus the appellate court is exhibiting its eagerness to 'expedite' the case in its own way, most likely to keep the Supreme Court at bay so it gets the chance to put its own mark on one of the most popular trials in recent history.

The court's first order of business will be ruling on Microsoft's request for a stay delaying the implementation of Judge Jackson's unthinkable remedies.

Meanwhile, the DoJ, having finally got what it needs, filed its motion Tuesday evening under the Expediting Act to bring the case directly to the Supreme Court. Judge Jackson must first certify the request, and few imagine he will decline.

By filing its notice of appeal, Microsoft left the door open for the DoJ to apply directly to the Supreme Court, which can upstage the appellate court if it so chooses. Whether it will do so is another question. The Court has shown considerable reluctance to interrupt the normal flow of judicial process, an observation upon which Microsoft is no doubt banking.

The DoJ has cried foul. Microsoft's filing with the appellate court was "an ill-conceived attempt to end-run the Expediting Act," the DoJ whinged on Tuesday evening, perhaps forgetting that their own plans were contingent on MS taking the plunge and filing.

But when it comes to whingeing, MS earns the laurel wreath. "Microsoft's stay motion has been pending for nearly a week, and the district court has failed to afford the relief requested," the company's brief alleged.

Of course MS relied, for extra time to buff its appeals brief and pursue its PR onslaught, upon the fact that Judge Jackson wouldn't grant a stay until or unless the company filed it -- a nice example of MS crying over something they used to their own advantage.

We expect to see a good deal more of the same as the appeals process commences, and fervently hope the courtroom will be stocked with an adequate supply of tissues. ®

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