Appeals court looking for help on technology basics in Microsoft 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 yesterday issued an order notifying Microsoft and the U.S. Department of Justice that it wants to bring in Michael Hites, chief technology officer at the Illinois Institute of Technology (IIT) in Chicago, to conduct "a review session on the fundamentals of automation." The judges proposed a Nov. 14 date for the hearing and gave the two sides in the case until next Wednesday to respond to the idea.

Mark Langer, the appeals court's clerk, today 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.

In yesterday'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 (see story) -- said the hearing with Hites would be "descriptive only, focusing strictly on basic concepts underlying the fundamentals of automation." The review session "would not address any of the issues presented in [Microsoft's] appeals," the court added.

Microsoft is seeking to overturn a June decision by U.S. District Court Judge Thomas Penfield Jackson, who ruled that Microsoft violated antitrust law by engaging in anticompetitive business practices. Jackson ordered that the company be split into two separate entities -- one for its operating systems, the other for the rest of its products. But the judge stayed the execution of his order pending the company's appeal.

In an e-mail exchange today, 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 IIT and has worked there since 1996, noted that the hearing's focus would be on "basic concepts" of technology.

"I have been asked . . . to provide a straightforward review of the fundamentals of automation," Hites said in an e-mail message. "In other words, I have been asked to focus on basic concepts. The details of my presentation will be tailored to meet the needs of the court, as defined by [Chief Judge Harry T. Edwards]."

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 today said company executives aren't sure exactly what the order from the appeals court means, "but we 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.

Technology issues have been at the heart of the Microsoft case, and even definitions of what constitutes a "browser" and an "application" were sometimes in dispute during the trial before Jackson.

"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 in Washington. "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]."

But Kovacic said the court's attempt to gain a deeper understanding of technology basics is worthwhile. "The effort to develop a common [technology] vocabulary and a common understanding . . . makes all the sense in the world and strikes me as a thoroughly responsible way to prepare for the ultimate decision," he said.

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