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An appeals court today refused to reconsider its decision that Microsoft illegally mingled its Windows operating system and Internet browser, handing the software giant a setback in its four-year antitrust battle with the government. The U.S. Court of Appeals for the D.C. Circuit denied Microsoft’s request in a brief order, clearing the way for the case to be sent back to a lower court to decide Microsoft’s penalty for being an illegal monopoly. “Nothing in the court’s opinion is intended to preclude the District Court’s consideration of remedy issues,” the appellate judges said. In its June order, the appeals court decided that Microsoft illegally commingled software code for the two flagship products in an attempt to stunt competition and keep consumers from using one without the other. Microsoft asked the court to reconsider. The commingling issue was a central tenet of the Justice Department’s antitrust case. However, the jurists today also denied the Justice Department’s request to speed up the case. Their decision keeps the lower court from tackling the penalty decision until mid-August. Andy Gavil, a Howard University law professor following the case, said he wasn’t surprised by Microsoft’s loss but didn’t understand why the appeals court didn’t relinquish control of the case immediately. “I didn’t think the (rehearing) issues were substantial. I thought basically they had plowed that route,” Gavil said. “There’s no particular reason for delay at this point.” Connecticut Attorney General Richard Blumenthal, representing one of the states suing Microsoft, said he was pleased by the court’s decision. He said a rehearing “would have been both unnecessary and time-consuming, and we look forward to proceeding expeditiously before the District Court.” Jim Desler, a Microsoft spokesman, said the company is looking forward to the next step. “We remain committed to moving forward promptly in the legal process and continue to remain open to resolving any remaining issues in this case as quickly as possible.” The Justice Department did not have any immediate comment. Rob Enderle, a research fellow with Giga Information Systems, said Microsoft is no worse off for the ruling. “If they won, it provided one more barrier between them and an injunction stopping Windows XP from shipping, and if they lost they were no worse off than they were with the initial judgment in place,” he told KIRO radio in Seattle. In its rehearing request, Microsoft said the appeals court didn’t fully address the commingling issue in its ruling. “The court’s ruling with regard to ‘commingling’ of software code is important because it might be read to suggest that (computer manufacturers) should be given the option of removing the software code in Windows 98 (if any) that is specific to Web browsing,” the company argued. The appeals court ruled that Microsoft had operated as an illegal monopoly and harmed consumers. At the same time, the court reversed Judge Thomas Penfield Jackson’s order breaking up the company, narrowed the number of antitrust violations against Microsoft and said another lower court judge would decide the penalty. This decision clears the way for a lower court judge to be picked — unless Microsoft decides to appeal to the Supreme Court. Microsoft’s practice of incorporating multiple features in Windows has been a centerpiece in the antitrust case. In October, Microsoft’s new Windows XP operating system is scheduled to reach store shelves. Windows XP includes many more added features, and has brought criticism from state attorneys general, Microsoft competitors and members of Congress. Competitors argue Microsoft uses the operating system to dominate the market for other technology; Microsoft contends it simply is adding features users want. Copyright 2001 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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