During more than three hours of questioning, the six judges lobbed pointed questions at Microsoft. But they appeared most skeptical of claims that the lower court's decision did not adequately protect consumers from future anticompetitive actions by the world's largest software maker.
"Don't we owe some deference to the Department of Justice?" asked Judge David Tatel, referring to the Bush administration's decision to settle the antitrust suit against Microsoft.
The panel of judges is considering two related cases. Massachusetts' attorney general claims that U.S. District Judge Colleen Kollar-Kotelly didn't go far enough in the final decision from November 2002 in the lawsuit brought by state attorneys general. And two trade associations representing Microsoft's archrivals are seeking to overturn a separate settlement reached by the Justice Department and Microsoft that Kollar-Kotelly also approved.
Robert Bork, a former judge who is being paid by Microsoft's competitors to overturn the settlement, argued that it was vague and "ambiguous" and that a technical expert should be appointed to collect complaints and publicise alleged violations in the future.
Judge David Sentelle suggested that the consent decree, which Microsoft is already following, was no more ambiguous than any similar document. "Some find ambiguity in a 'No smoking' sign," Sentelle said.
This is the third or fourth time, depending on how you count it, that the U.S. Court of Appeals for the DC Circuit has considered Microsoft's antitrust woes. Earlier decisions have been favourable to the company: The court tossed out an order that Microsoft be broken up, and it dismissed U.S. District Judge Thomas Penfield Jackson, a harsh Microsoft critic, from future proceedings in the case.
