Microsoft is adamant that it wants to file long briefs and have five months for its appeal. But it did decide to accept the DoJ's challenge and file its scheduling reply in two days, rather than by 10 October as it was entitled to do.
Microsoft says that "if there is no threat of irreparable harm - and none has been shown" then the case should be conducted according to its proposed schedule. Luckily for Microsoft, the DoJ has no opportunity to point out a few home truths about this before the court of appeals decides on the schedule.
The company also promises to present "factual issues" covering "many complicated technologies," including Intel's native signal processing software effort, Apple's QuickTime, and RealNetworks' streaming media. So the message is it's going to be complicated, technical, and it ought to take a long time, right?
The court may however find itself more sympathetic to Microsoft's argument that it would bring up comments made by Judge Jackson outside the courtroom, as well as his conduct of the case. Judge Stanley Sporkin fell foul of the same court in an earlier phase of the case, and the result was a feeble and ineffective consent decree which he refused to sign, because it was not in the public interest.
Microsoft itself blames the DoJ for three months delay in trying to ensure that the case was heard directly by the supreme court.
It will be interesting to see whether the court will effectively allow Microsoft a mini retrial, or be influenced by the DoJ proposal. On past form, its reply should come very quickly. ®