The Microsoft antitrust trial took a dramatic turn late Tuesday when the U.S. District Court of Appeals suddenly announced that it would hear Microsoft's appeal of Judge Thomas Penfield Jackson's damning ruling against the company. In what can only be described as a stunning legal victory for Microsoft, the Appellate Court took this action before Jackson could even rule on a DOJ request to send the case directly to the Supreme Court, a move that would have bypassed the Court of Appeals entirely. Microsoft has had good look with the Court of Appeals as well; as recently as 1998, the court rescinded a Jackson ruling against the company. The DOJ didn't take the news kindly, asking Jackson to send the case to the Supreme Court immediately. For a story that was growing increasingly monotonous, things have finally gotten interesting.
It all began Monday with complaints by the DOJ that Microsoft, which had repeatedly threatened to appeal any ruling handed down by the judge, had never actually filed an appeal, though it had asked Jackson to stay his ruling until the appeals process was completed. The DOJ urged Jackson to reject the stay request until the company filed its appeal, a legal maneuver designed to call Microsoft's bluff. As expected, Jackson reserved judgment on Microsoft's stay request, asking the company to file its appeal first. That's when the first surprise came: Within hours, Microsoft filed an appeal and resubmitted its request to stay Jackson's final ruling in the antitrust case.
But the surprises weren't over yet. Behind the scenes, the Court of Appeals was working to do what it could to hear Microsoft's appeal. Before the company formally filed that appeal with Judge Jackson, who was preparing to send the case directly to the Supreme Court, the Appellate Court offered to take the case. It even offered a rare chance for the case to be heard by its entire panel of judges ("en banc"), which is almost unheard of, in an attempt to display its understanding of the case's importance. Though unhappy with the move, the DOJ moved to counter the Court of Appeals by asking Jackson to forward the case immediately to the Supreme Court. "Immediate Supreme Court review of this case is in the public interest because of its importance to the American economy," a DOJ statement reads. "If Judge Jackson grants our request, we will ask the Supreme Court to hear Microsoft’s appeal promptly." But even if Jackson does agree to send the case to the Supreme Court, there is always the chance that it will remand it back to the U.S. Court of Appeals anyway. So the topsy-turvy Microsoft trial is still far from over. But it's suddenly heating up again, and this time, it seems that the software giant can finally see a light at the end of the tunnel