MS launches its final anti-DoJ salvo

Antitrust ball is now in Judge Jackson's court, as the Redmond giant files final response a day early, criticising the DoJ for only 'cosmetic' changes to breakup proposal
Written by Lisa M. Bowman, Contributor

In a document that opens the door for Judge Thomas Penfield Jackson to issue his final ruling in Microsoft's antitrust case, the company criticised the government for making only "cosmetic" changes to a breakup proposal it says is full of flaws.

In a harshly worded document, Microsoft called the government's position "extreme" and warned Jackson that the proposal would force the company to redesign its operating system and may cause employees to quit.

Microsoft had one last chance to make changes to a government proposal to split the software giant into an operating system company and a separate applications company.

Jackson could rule on the case as early as this week. At a hearing two weeks ago he invited the US Department of Justice and 17 state attorneys general to submit their breakup proposal to him in final form. In the weeks that followed, he's given each side two chances to propose edits to the document.

In the final filing of that paper battle, Microsoft attorneys complained Tuesday that the government ignored many of the changes they proposed -- a move they said could hurt both the company and others in the industry.

"Such flaws should be corrected even if one accepts -- which Microsoft decidedly does not, for reasons stated previously -- that relief of the sort requested by the government is either necessary or appropriate in this case," said the document, which was filed a day before the Wednesday deadline.

In its filing, Microsoft called the government's most recent proposal "so vague and ambiguous as to be unintelligible."

"In fact, the government's reply to Microsoft's comments makes the government's revised proposed final judgment worse than Microsoft initially thought," company attorneys wrote.

The company said the provisions would force Microsoft to redesign its operating system and open up its source code. What's more, the company said the proposal may force employees out the door because Microsoft workers, "many of whom are engineers accustomed to precision in the ascertainment of objectively verifiable facts," wouldn't be able to understand the new rules.

Predictably, the DoJ downplayed the Microsoft document. "The filing rehashes Microsoft’s old arguments, ignores existing violations found by the court, denies the need for serious relief and grossly distorts our [proposal]," DoJ spokeswoman Gina Talamona said. Nevertheless, she said, government attorneys would not ask Jackson for another chance to file a response -- as they did the last time Microsoft filed. Last week Jackson granted the government’s request for another round of filings, delaying his final decision in the case by at least a week.

Jackson is expected to issue a ruling shortly, and many legal experts say his request for the DoJ's breakup proposal at the hearing indicates he favours splitting the company into at least two parts.

Jackson already has ruled Microsoft a monopoly that used its dominance to illegally move into other markets. Microsoft has vowed to appeal, and any decision by Jackson probably would be set aside until that process is finished.

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