Gov't reply to MS rehearing request due by Aug. 3

ITworld.com –

The U.S. Department of Justice (DOJ) and 18 state attorneys general who are plaintiffs in the Microsoft Corp. antitrust case have until Friday, Aug. 3, to respond to a petition Microsoft filed Wednesday asking an appeals court to reconsider whether the company illegally "commingled" software code.

The U.S. Court of Appeals for the District of Columbia Circuit issued the deadline Thursday. Microsoft will not be permitted to reply to the plaintiffs' response, said the court order establishing the deadline.

Microsoft has asked the Appeals Court to rehear the commingling issue, arguing in the court document Wednesday that "critical evidence was overlooked -- or misinterpreted -- on the technical question of whether Microsoft 'commingled' software code specific to Web browsing with software code used for other purposes in certain files in Windows 98."

The Appeals Court last month accepted as part of a ruling in the case a conclusion from U.S. District Court Judge Thomas Penfield Jackson that Microsoft "commingled" its Internet Explorer browser software with its Windows operating system code in violation of the Sherman Antitrust Act.

The government filed suit against the software maker more than three years ago. Jackson ruled last year that Microsoft is a monopoly and has illegally used that power in operating systems to, among other things, stymie competition. He ordered that the company be split into two separate entities -- one overseeing operating systems and the other applications. Microsoft appealed.

In its ruling last month, the Appeals Court accepted in total Jackson's ruling regarding Microsoft's monopoly status and its illegal use of that power, but sent back to the District Court the issue of "tying" Windows to IE. The appellate judges also found that Jackson behaved improperly, violating the judicial ethics canon, in speaking to reporters about the case and talking about it publicly before he issued his order that the company be broken up. Because of that, the Appeals Court returned the matter of remedies back to the District Court where a judge other than Jackson will rehear that issue.

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