Microsoft’s persistence brings software patent fight to Supreme Court

The Supreme Court on Monday heard oral arguments on i4i’s patent lawsuit against Microsoft, and the software industry is holding out hope that a pro-Microsoft ruling will help bring sanity to a software patent system run amok.

Microsoft wants the high court to lower the standard of proof required to overturn a patent. But opposition to the change is also running high as the ruling would affect all patents, not just those for software, potentially making it easier to overturn any patent.

 

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Intellectual property experts and patent-owning corporations from multiple industries have piled on this case, filing more than 40 amicus briefs, with the software industry mostly on Microsoft’s side. Support from Microsoft even includes its typical rivals such as Red Hat and Google. In opposition stand such heavyweights as the U.S. government itself.

“The case raises a pivotal issue in patent law, and the standard that applies when the defendant challenges the validity of a patent,” Andy Culbert, associate general counsel at Microsoft, told Network World. “I don’t think this case is anything at all like the David versus Goliath case that i4i says it is. If you look at all amicus briefs that i4i solicited, many of them are from major pharmaceutical companies. I don’t think you could characterize pharmaceutical companies as ‘the little guy.'”

CASE UNFOLDS: History of i4i v. Microsoft

The legal issue revolves around a special rule, created by the Federal Circuit. It applies only to patent cases and not to other types of civil cases involving property rights, and it stacks the odds in favor of the patent holder, Culbert explained. A higher standard of proof is required to overturn a patent than the standard of proof required for other civil matters. For patent cases, the standard to overturn a patent is that there must be “clear and convincing” evidence that shows a patent should not have been issued in the first place, whereas in other civil cases the standard is a “preponderance of the evidence.”

That special rule originally included a punishment, too: The courts would issue an automatic injunction against selling the disputed product or service if the defendant was found to have infringed. In a case involving eBay (eBay v. MercExchange, 2006), the Supreme Court decided that injunctions should not be automatic. Microsoft is now arguing to eliminate the special rule that creates a higher standard of proof to overturn a patent, too.

“Microsoft wants the same burden of proof to apply to patents that applies to other civil cases,” Culbert said.

Steve Chang, a patent attorney from national law firm Banner & Witcoff, attended Monday’s hearing and characterized the discussion as lively, sprinkled with chuckles. While the justices didn’t tip their hand, there were some questions over i4i’s position.

“It’s kind of like reading tea leaves,” Chang told Network World. “The questions were not hostile to one side or other, but it was clear that some justices, like Justice Alito, were questioning what the statutory support would be for the ‘clear and convincing’ standard. Justices Ginsberg and Sotomayor asked if the Patent Act was passed in 1952, and the Federal Circuit was created in 1982 and the ‘clear and convincing’ standard came along after that, what happened in the first 30 years?”

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