With Windows 98 due to ship to PC makers this week, Microsoft Corp. last week asked an appellate court to stay a lower court's Dec. 11, 1997, preliminary injunction while the court clarifies whether the ruling applies to Windows 98 or just to Windows 95.
The U.S Department of Justice immediately filed a 24-page response to Microsoft's motion, opposing the stay of preliminary injunction on legal procedural grounds and arguing that Microsoft should have asked for clarification sooner.
"Microsoft has engaged in delaying tactics that are inequitable," stated the Justice Deparment motion, filed last week with the U.S. Court of Appeals for the District of Columbia Circuit.
At the heart of the latest tussle in the eight-month-long legal battle is a Dec. 11 preliminary injunction issued by District Judge Thomas Penfield Jackson that bars Microsoft from licensing its Windows 95 operating systems to PC makers in conjunction with its Internet Explorer browser software.
Microsoft has appealed the injunction and oral arguments were heard by the appeals court last month.
Microsoft now wants the federal appeals court to clarify whether the preliminary injunction applies to Windows 98, which is due to ship to PC makers on May 15 for inclusion into their latest PCs.
Asked why Microsoft decided not to ask for clarification sooner, Microsoft corporate spokesman Jim Cullinan said the company couldn't have asked "five months in advance."
Asked to clarify his statement and whether Microsoft was not aware of the specific language of the injunction last December, Cullinan said: "We decided to ask for a stay now."
Judge Jackson's Dec. 11 ruling states: "Microsoft ... shall cease and desist ... from the practice of licensing the use of any Microsoft personal operating system software (including Windows 95 or any successor version thereof) on the condition, express or implied, that the licensee also license and preinstall any Microsoft Internet browser software . . ."
In its response to the Microsoft request, the Justice Department said the company recognized that the preliminary injunction "prima facie" covers Windows 98 and that the company nonetheless completed its plans for Windows 98 without requesting a determination whether or how the injunction applies to Windows 98.
The Justice Department filing also argues that by asking the appeals court for clarification instead of the district court that issued the ruling, Microsoft is bypassing the district court, a move that should "not be condoned; accordingly Microsoft's [stay] Motion should be denied."
Furthermore, the Justice Department calls Microsoft's latest motion an attempt to gain a tactical advantage by giving the court only a few days to rule prior to the May 15 ship date under a "self-generated claim of hardship."
The Justice Department also contends that in late March it offered to join Microsoft in asking the district judge to clarify Windows 98's status under the injunction.
"Nonetheless, Microsoft waited until this late date to seek a stay," the filing said.
