Microsoft Loses Delay Appeal

cheesethegreat was the first to submit that Microsoft has lost their appeal to delay their case by requesting a review with the Supreme Court. We mentioned the appeal a few weeks ago. The link doesn't say much more than that the appeals court denied the delay.

Comments

Re:what do m$ spend all the pc tax $$$ on?

[Nurgster]

You can get the Microsoft research stuff here.

Yes, I'm a karma wh0re, before you ask.

Re:Another link

[jamescford]

CNN has a PDF of the court decision here

Not a surprise

[tadas]

This isn't exactly a surprise. The Supremes would really have to find something way wrong procedurally to override a *unanimous* Circuit Court opinion on a limited procedural question.

The common-law tradition is, in some strange way, like the open-source development process -- it tends to favor "working code". There is a strong bias in the system against mucking with what lower courts have done, and this is done only when the lower court does something that seems to be way out of line. You can see this in what the Circuit Court did to the trial decision -- it found that Judge Jackson was out of line in how he determined the remedy, but didn't throw out the findings of fact (and tossed it back to a different judge for the penalty phase).

I think that the fact that the Circuit Court's "en banc" decision was *unanimous* cut a lot of mustard with the Supreme Court.

PS - When I started this post, there were no posts. Since I tried to actually put some (admittedly not a huge amount) care into what I was saying, I guess this wont be a "First Post". I tried, though...

Better Article

[Hobobo]

Here is a better article on the New York Times.

the text of the ruling

[sethg]

Upon consideration of the motion to stay the mandate, the response thereto, and the reply, it is

ORDERED that the motion be denied. In order to obtain a stay of the mandate pending its petition for certiorari, Microsoft must show that the "petition would present a substantial question and that there is good cause for a stay." See Fed. R. App. P. 41(d)(2)(A); see also D.C. Cir. Rule 41(a)(2) (movant for stay of mandate must provide "facts showing good cause for the relief sought"). For the reasons stated in the appellees' response to the motion for stay, it appears that Microsoft has misconstrued our opinion, particularly with respect to what would have been required to justify vacating the district court's findings of fact and conclusions of law as a remedy for the violation of 28 U.S.C. 455(a). We need not decide, however, whether Microsoft's objections constitute a "substantial question" likely to lead to Supreme Court review, because Microsoft has failed to demonstrate any substantial harm that would result from the reactivation of proceedings in the district court during the limited pendency of the certiorari petition. See Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974); Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958).

The Clerk is directed to issue the mandate seven days from the date of this order. See Fed. R. App. P. 41(b).

(PDF here.)

Re:what do m$ spend all the pc tax $$$ on?

[agallagh42]

Microsoft spends more than $5.3 Billion on R&D per year. That is more than IBM spends on hardware/software R&D (5.1B) and more than 2X Sun/Oracle combined!