The uncertainty arose after the chief judge of the seven-judge appeals panel, which sat in Washington DC to hear arguments about whether the decision to break up Microsoft was flawed, attacked the basic premise of the US government’s case.
Chief Judge Harry Edwards questioned whether the former Netscape Communications, which offered a competing browser to Microsoft’s Internet Explorer, truly posed a competitive threat to Microsoft.
Edwards also said he saw no reason to “defer to the findings of fact”, in reference to Jackson’s ruling that the company violated several aspects of anti-trust law and had to be broken up. He described them as “merely conclusionary”, adding: “I find no support for them.”
The latest instalment, in a case that has lasted for more than four years, came almost nine months after Jackson ruled the company had violated anti-trust laws and ordered it to be split in two.
Microsoft appealed against the order to divide the company for two reasons — the first being its belief that “neither the facts nor the law” justified the company’s break-up; and secondly, it claimed Judge Jackson was biased against it.
The software giant had argued that comments Jackson made to members of the press in relation to the case showed he was prejudiced.
In an interview for The New Yorker magazine, Jackson called Microsoft founder and chairman Bill Gates arrogant and compared him to Napoleon. Microsoft initially appeared to be winning the argument that a break-up of the company would be a drastic measure that might impair the balance of competitiveness in the software industry.
Later in the day, the government rallied when the company seemed to be convincing the judges that Windows and Internet Explorer were two separate products.
The second of the two-day timetable of discussions looked at whether a break-up of the software giant was the appropriate action and whether Jackson’s comments to reporters criticising the company demonstrated bias.
The discussions were dominated by Jackson’s handling of the initial hearing, with Edwards particularly critical of some of his findings.
He questioned whether Jackson’s findings of fact sufficiently defined what he called “the browser and platform market”, before adding that his findings were “absolutely unclear”, accusing Jackson of “sleight of hand”.
Government lawyers were even forced to concede that certain rulings on one point in the argument against the software giant could lead to the whole case being sent back down to a trial judge for rehearing.
Any such move would be unlikely to involve Judge Jackson, as his comments in the aftermath of the original ruling have had the effect of undermining the government’s victory, as legal experts predicted they would at the time. The appeals court is not expected to rule before the arrival of summer.