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Microsoft plans to refocus its appeal on the facts of the antitrust case and away from anti-Microsoft comments made outside the courtroom by the trial judge who ordered the software maker’s breakup. Both the company and the Justice Department faced a deadline of today from the U.S. Court of Appeals for the District of Columbia Circuit to develop a schedule of topics for oral arguments Feb. 26 and 27. The schedule, which the court will develop itself if the two sides fail to agree, could provide “important insights into the court’s own thinking about what issues are the most unsettled in the case,” said Howard University law professor Andy Gavil. In its written appeal, Microsoft called U.S. District Judge Thomas Penfield Jackson’s statements to reporters after the case “indefensible,” and they “demonstrate an animus toward Microsoft so strong that it inevitably infected his rulings.” But Thursday, Microsoft spokesman Jim Cullinan said in an interview that unless the appeals court brings up Jackson’s behavior, the company does not plan to talk about him. “We believe that the briefs speak for themselves,” Cullinan said, noting that Microsoft raised the trial judge’s statements the last time they faced the appeals court. Instead, Cullinan said Microsoft wants to focus its oral arguments on the central issues of the case: whether the company could bundle its Microsoft Windows operating system and Internet Explorer browser software, and whether it used anti-competitive practices to maintain a monopoly. “This decision will have implications on a number of things moving ahead,” Cullinan said. “We want to make sure we’re clear about this issue, and what the standard is moving forward with our business.” Cullinan said Microsoft’s lawyers were working with their Justice Department counterparts Thursday in hopes of agreeing on a combined topic list for arguments, but he was pessimistic about a deal. Justice spokeswoman Gina Talamona said she had no information about the government’s plans for the two days of arguments. Jackson ordered Microsoft broken into two parts in a June 7 decision that rocked the Redmond, Wash., firm and the industry. Even if Jackson isn’t mentioned during oral arguments, his comments to reporters and to the authors of two recent books on the antitrust suit may have done their damage already. In Ken Auletta’s book “World War 3.0: Microsoft and Its Enemies,” Jackson called the appeals court judges “supercilious” and lacking practical trial experience. He said they “embellish law with unnecessary and, in many cases, superficial scholarship.” He also explained one reason he took the unusual step of issuing separate findings of fact and conclusions of law. “What I want to do is confront the court of appeals with an established factual record which is a fait accompli,” Jackson said. “And part of the inspiration for doing that is that I take mild offense at their reversal of my preliminary injunction in the consent-decree case, where they went ahead and made up about 90 percent of the facts on their own.” William Kovacic, a George Washington University law professor who has followed the antitrust case, said Jackson’s comments may make the appeals court question whether his decision was based on the merits of the case. “In simple terms, Jackson will not receive the benefit of the doubt that he might have gained if he had chosen to let his formal opinions in the case do the talking,” Kovacic said. Jackson’s frequent and sometimes explosive statements — such as when he said Microsoft executives behave like children and compared chairman Bill Gates to Emperor Napoleon — have continued to baffle trial watchers. “Why he decided to say things that could endanger his formal rulings in the case, especially knowing that nothing good could come from his criticism of the appellate judges who ultimately might review his work, remains one of the greatest puzzles in the case,” Kovacic said. Copyright 2001 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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