Microsoft will ask the US supreme court today to let a lower tribunal first hear the company's appeal of antitrust violations, a strategy aimed at avoiding a verdict on splitting the software giant.
The high court will be dealing with a novel situation - the first time it has settled a squabble over whether to take a direct appeal under a special law covering government-initiated antitrust cases.
"If this case doesn't qualify then the statute's a dead letter," said Mr Don Falk, a lawyer with Mayer, Brown & Platt, which represents such Microsoft adversaries as Oracle. But Yale law professor Mr George Priest thought the supreme court was "overwhelmingly likely" to let an appeals court handle the case first.
District Judge Thomas Penfield Jackson found in June that Microsoft had used illegal and unfair tactics against rivals to sustain monopoly power for its Windows operating system and ordered the company to break up.
Microsoft wants the appeal to go first to an intermediate court, which ruled for it in 1998 on a related matter.
"We believe the supreme court would benefit from an initial review by the court of appeals because of the wide array of procedural and factual issues that will be raised in our appeal," a Microsoft spokesman said.
That is at odds with the views of solicitor general Seth Waxman, the government's chief advocate before the supreme court. At his request, Judge Jackson certified the case to the high court.
"It's very important to get a final ruling before the US supreme court," justice antitrust chief Joel Klein said last month.
A special law says government-initiated antitrust cases of "general public importance" in "the administration of justice" should get direct consideration by the supreme court.
"Under that standard, certification is not appropriate here," Microsoft has argued in court.
Microsoft recently hired Carter Phillips of Sidley & Austin in Washington, who regularly argues before the supreme court, to handle its appeal. Microsoft will not talk about Phillips 30-page brief due today, but experts say earlier filings offer a window on the company's thinking.
Microsoft argues the supreme court should focus on cases that deal with legal questions rather than factual questions.
Microsoft says it will challenge many of the judge's factual findings. But legal scholars say the law gives deference to findings of fact and they will be tough to challenge.
The company also argues that while the supreme court likes to consider one or two issues, the firm will need to raise many.
University of Iowa College of Law professor Herbert Hoven kamp, who has done some work for the plaintiff states, says Judge Jackson made a clean ruling that swept away the underbrush and left a big issue - whether Microsoft violated the Sherman Act by using monopoly power to muscle others out of competing.
The government will reply on August 15th and Microsoft may file a further reply on August 22nd.
