Microsoft lawyers want to know more about the tech expert who may brief the antitrust appeals court -- particularly his work for Sun.
Both sides in the Microsoft antitrust case want a preview of the presentation which a technical expert may give to the appeals court now deciding the company's fate.
A US Circuit Court is considering a November 14th technology briefing by Michael Hites, from the Illinois Institute of Technology in Chicago, so that it can better understand some of the more geeky aspects of the case.
The court said the briefing would be "descriptive only" and would not go into the issues presented during the appeals process.
However, both sides of the case are urging the court to proceed cautiously.
For example, Microsoft questioned Hites' background, saying he seems to have more experience with server operating systems such as UNIX and Windows NT than with the desktop operating systems addressed at the trial.
"Consequently broad generalisations based on experience with those other operating systems could lead to erroneous conclusions," Microsoft attorneys wrote.
In addition, Microsoft attorneys requested more details about Hites' work in June on a project for Sun Microsystems, which they described as one of "Microsoft's fiercest competitors."
What's more, the company said it wants to make sure Hites understands some of the fundamental disagreements (between the company and the US Department of Justice) about the proper definition of a personal-computer operating system."
Microsoft has argued that the operating system includes features such as the browser, while the Department has maintained that the browser is a separate product and that Microsoft illegally leveraged its dominance in the OS market to move into the browser market.
For its part, the Department said Hites' presentation should be clearly limited to prevent the appearance that the court is widening the scope of the case. During the appeals process, higher courts usually consider only material already submitted during the trial.
The Department asked that both sides be restrained from interrupting the presentation or filing additional documents.
Government attorneys said much evidence already exits regarding the nature of operating systems and the applications that work with them. Therefore, they argued, the court should "prevent the review session from becoming an occasion for briefing and argument unconstrained by the appellate record." In other words, attorneys don't want Microsoft introducing new material into the case it won at the district level.
The appellate judges are in the process of gathering briefs from both sides and other interested parties. Oral arguments will follow in February.
The appeals court is the same court that chastised US District Judge Thomas Penfield Jackson, the judge who ruled against Microsoft in this case, for appointing Harvard Professor Lawrence Lessig as a special master in a separate but related case three years ago.
