The motion filed in the U.S. Court of Appeals on Tuesday would have no effect on possible new legal actions under consideration by the US Justice Department and state attorneys general. Such new actions under the Sherman antitrust act may be filed in a matter of days. The Sherman act is aimed at preventing monopolies from unfair competition practices.
Microsoft said it has a separate set of concerns because of the existing preliminary injunction, which was issued last December by U.S. District Judge Thomas Penfield Jackson. Microsoft appealed against that injunction on Dec. 16, asking the higher court to overturn it. Written and oral arguments ended last month but the appellate court has yet to issue its decision.
Microsoft said when it decided to appeal the decision it did not know when it might be releasing Windows 98 and so it made no arguments about the new product. But, the company argued, it will be giving computer makers Windows 98 on May 15 and sell to the general public on June 25 and that release could lead to new legal problems under the injunction.
The December injunction bars Microsoft from bundling its Internet Web browser with Windows. Microsoft noted in its argument that the judge's injunction, as written, "included Windows 98." And so the company asked the appellate court seeking to stay the preliminary injunction as it applies to Windows 98. "In order to comply with the preliminary injunction insofar as it relates to Windows 98, Microsoft would have to create a whole new operating system that did not provide support for Internet standards," the company said. It said that Web capability was so central to Windows 98 that removing it would result in a product that "would bear little, if any, resemblance to Windows 98."
A Justice Department spokesman said: "Our response will be filed promptly."
However, a Justice Department official noted that the judge's order last December was valid until further orders were given by the court. That, he said, was "essentially an invitation to come back and seek clarification in the District Court. Microsoft has avoided doing so and instead has contrived an 'emergency' where none needed to exist."
In its brief, Microsoft said the Justice Department had "refused to enter a definitive agreement immunising Windows 98" from being included under the preliminary injunction.
The Justice Department official said that kind of immunity was not up to the department.
He said the injunction "is a judicial order, not a contract. It is up to the judge to decide what his order means. The department has offered to join in an effort to obtain a determination by the District Court."