Microsoft Continues to Appeal Java Order

Microsoft Wednesday filed a brief with the U.S. Court of Appeals for the Fourth Circuit asking it to set aside an injunction ordering Microsoft to offer Sun Microsystems' Java Runtime Environment with Windows XP and some versions of Internet Explorer.

That injunction was granted on December 23, 2002 but was halted earlier this month by the appeals court pending a review of the case.

The 83-page brief filed by Microsoft is the first action in that review. Sun will file its opposition brief on March 7 and Microsoft will file its reply brief on March 18.

In the introduction to the brief, Microsoft vigorously attacks the earlier decision to grant an injunction.

"The mandatory preliminary injunction from which Microsoft appeals is unprecedented in the history of our [U.S.] antitrust laws," Microsoft wrote. "The district court intervened in what it called a 'new market' .... despite the fact that Microsoft is the new entrant in, and Sun now dominates, the alleged 'new market'."

Against the Injunction

Microsoft added that the injunction was interfering with market forces in an area completely separate from that in which it had engaged in "alleged wrongful conduct."

The brief argues that Sun has not made the required clear showing of immediate and irreparable harm required for entry of a preliminary injunction, Microsoft said.

The district court, in granting the initial injunction, had accepted a Sun "theory" that if Microsoft did not ship Java with Windows, Sun would be at a disadvantage in competing against Microsoft's .Net technology in a "new market" for general-purpose Internet-enabled distributed computing platforms, Microsoft said.

"Neither Sun nor the District Court ever defined this alleged second market but all agree that Java now dominates it and that Microsoft has just entered it with .Net," Microsoft wrote in the brief.