In a 28-page brief filed in federal appeals court, Microsoft said a 1913 law cited by news outlets seeking access to pre-trial depositions did not apply to its case, which is scheduled for a trial beginning September 23.

Last month US district judge Thomas P Jackson ordered the remaining depositions in the case to be opened to the press and public at the request of Reuters, The New York Times and several other media companies.

Jackson said he was compelled to open the testimony by the 1913 Publicity in Taking Evidence Act, which requires that ``depositions'' in federal antitrust cases be conducted in public ``as freely as are trials in open court.''

The appeals court, however, said depositions could continue behind closed doors while it considered Microsoft's appeal. Gates, who has alreadygiven two days of testimony under oath, was to answer questions for a third and probably final day on Wednesday.

A wide-ranging protective order has sealed virtually all evidence collected in the current discovery phase of the trial, resulting in an 89-page government brief filed on Tuesday that was riddled with blank pages and sections.

Microsoft argued that the term ``depositions'' in the 1913 law referred to something far different than the practice of current pre-trial civil procedure, which dates to the 1930s.

Instead, Microsoft argued, anti-trust cases in the early part of the century were decided solely on the basis of evidence, or ``depositions,'' collected by special examiners and then submitted to a court.

``The examiner was, in effect, a travelling court because all of the evidence was collected by the examiner and there was no subsequent evidential hearing,'' Microsoft said in the brief.

Modern pre-trial depositions, which are intended merely to provide a foundation for evidencepresented at trial, were created by the adoption of federal civil rules in 1937.

``These discovery devices were not intended to be governed by the 1913 statute,'' Microsoft said.