Microsoft's lawyers sent a letter to the US Court of Appeals yesterday, pointing to a precedent for removing a judge who had commented publicly on a pending court case.
The move is part of Microsoft's ongoing attempt to have Judge Thomas Penfield Jackson - who ruled in its antitrust case - removed.
In April of last year, Judge Jackson determined that Microsoft had broken US antitrust law. He ordered it to be broken into two companies and restricted its business practices. He stayed his orders pending Microsoft's appeal. Before the Court of Appeals hearing, two days of oral arguments take place from February 26.
Earlier this week, the Court of Appeals said it would dedicate 30 minutes of the oral arguments to reviewing Judge Jackson's conduct.
Microsoft's disquiet concerns the granting by Judge Jackson of interviews to a handful of journalists during the antitrust trial. His comments have subsequently appeared in articles published since his verdict was issued.
The letter can be read here.
Under the Federal Rules of Appellate Procedure, parties in a case are allowed to bring to the court's attention cases that may be related to some of their substantive arguments - if the outcome of those cases appeared after the final filing of briefs. Microsoft filed its last appellate brief on January 29.