Microsoft is asking the appeals court to delay a recent court order requiring it to distribute Sun's implementation of Java with Windows.

Sun does not face any "imminent irreparable harm" that could require Microsoft to include Java in its Windows operating system, Microsoft said in an emergency motion filed with the appeals court.

District Judge Frederick Motz, in December, ordered Microsoft to ship Sun's Java with Windows. Motz since gave Microsoft 120 days from February 4 to begin doing so. The date was set to give Microsoft time to appeal the decision.

In the emergency motion, Microsoft calls the lower court's order "extreme and unprecedented", and asks for it to be shelved pending appeal.

Sun asked the court to order Microsoft to distribute the Sun Java Virtual Machine as part of its multi-million dollar private antitrust lawsuit against Microsoft. Sun argued that Microsoft had used its monopoly power in the operating system market to flood the market with versions of Java that aren't compatible with Sun's Java.

The order is necessary, Sun lawyers have said, because Sun's Java is losing ground to Microsoft's competing .Net development framework.

Microsoft lawyers, in the emergency motion, say Sun's Java is currently the leader in the market for Internet-enabled distributed platforms and argue that future competition is no grounds for the order to include Sun's Java in Windows now. Immediate irreparable loss or damage must be proven, Microsoft said.

Without an additional stay from the appeals court, Microsoft will have to begin working on including Java in Windows on February 4. This would require "an enormous amount" of Microsoft's engineering resources, and would adversely affect the quality of the software and service the company offers, Microsoft lawyers say in the motion.