Appeals Court Mulls Special Tech Hearing

Judges seek help on technology basics in government vs. Microsoft antitrust case

Washington

The U.S. Court of Appeals judges who will consider Microsoft Corp.'s appeal of the order to break up the company are looking at holding a special, if not unusual, hearing designed to give the panel a basic education on computers before it tackles the technical issues raised by the landmark antitrust case.

The appeals court last week issued an order notifying Microsoft and the U.S. Department of Justice (DOJ) that it wants to bring in Michael Hites, chief technology officer at the Illinois Institute of Technology in Chicago, to conduct "a review session on the fundamentals of automation."

Mark Langer, a clerk at the appeals court, said the intent of the hearing would be to review technologies such as "RAM, hard drive, wide-area networks - basic, basic stuff." But an agenda for the proposed hearing hasn't been set yet, and Langer said the session may well be closed to the public.

'Descriptive' Hearing

In last week's order, the Court of Appeals - which began its proceedings in the antitrust case last month after the U.S. Supreme Court decided not to directly hear Microsoft's appeal - said the hearing with Hites would be "descriptive only," focusing strictly on basic concepts.

The review session "would not address any of the issues presented in [Microsoft's] appeals," the court added.

In an e-mail exchange last week, Hites referred most questions about the proposed hearing to the appeals court. But Hites, who earned a Ph.D. in mechanical and aerospace engineering at the Illinois Institute of Technology and has worked there since 1996, noted that the hearing's focus would be on basic computing issues.

"I have been asked . . . to provide a straightforward review of the fundamentals of automation," Hites said.

Neither the appeals court nor Hites would explain how he was chosen.

The order proposing the technology review said two representatives from each side in the antitrust case will be allowed to attend the review session. But the entire matter may have caught Microsoft and the DOJ by surprise.

Microsoft spokesman Jim Cullinan said company executives aren't sure exactly what the order from the appeals court means and that the company "will find that out and respond to the court appropriately."

Meanwhile, the DOJ, which brought the case against Microsoft along with 19 states, declined to comment on the proposed hearing.

"The characterization of what the technology does and how it functions involves substantive judgments that are relevant to the case," said William Kovacic, a visiting professor of antitrust law at George Washington University here. "I'll be intrigued to see how the court goes about reigning in the temptation of the parties to use Nov. 14 as the beginning of the oral arguments [over Microsoft's appeal]."

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