The Justice Department wanted the Supreme Court to take the appeal directly under the Expediting Act in which cases of national importance are allowed to circumvent the appellate process to be heard directly by the Supreme Court..
According to the Justice Department, running the case through a lower court would delay a final ruling by at least a year and ultimately the Supreme Court will be asked to hear the case again anyway.
Government lawyers said a long appeals process, "could irreparably harm competition in a vital and rapidly evolving sector of the national economy."
C/Net News quoted Glenn Manashin, an antitrust attorney with Patton Boggs in McLean, Va.:
"I think the court of appeals will be hard pressed to make good on its promise in the en banc order to hear the case promptly and with dispatch...For the competitive software industry, its a major defeat. Right now there are no remedies in place, and there will be no remedies in place, unless and until the process is concluded. I felt having stayed the remedies he removed any barrier to Supreme Court review."