In the brief, Microsoft (msft) played off one of the strongest points of its antitrust appeal, addressing the government's claim that the company illegally bundled its Internet Explorer Web browser with the Windows 95 and 98 operating systems.
In an earlier case, the same court hearing the appeal ruled that Microsoft's tying the products together was not an illegal act. In his ruling, U.S. District Judge Thomas Penfield Jackson used a different standard--one laid down by the Supreme Court--to determine that the tying of the products violated antitrust law.
"Plaintiffs continue to retreat from their tying claim," the brief states. "Although they pay lip service to the notion that Windows and IE are 'separate products,' plaintiffs make no effort to satisfy this Court’s test."
Many legal experts believe the Court of Appeals will apply its standard to the tying claim, throwing out one of the pillars of the government's case.
The Court of Appeals is overseeing the case. At issue is U.S. District Judge Thomas Penfield Jackson's June 2000 order that Microsoft be broken into separate operating system and software application companies. In April of last year, Jackson determined that Microsoft had violated two sections of the 1890 Sherman Act.
The Justice Department and 19 states brought the case in May 1998, alleging that Microsoft had illegally maintained a monopoly in operating systems for Intel-based PCs and had attempted to unlawfully extend that monopoly into Web browsers.
"Our reply brief focuses on the significant concessions in the DOJ's brief," said Microsoft spokesman Jim Cullinan. "We especially focus on the concession that IE software should not be removed from Windows because it provides consumer benefits, an admission we believe meets the technological tying standard of the Court of Appeals."