Supreme Court Will Review The Standard For Patent Infringement: Could Raise The Bar

from the preponderance-of-the-evidence dept

Tue, Nov 30th 2010 5:11am — Mike Masnick

We've been following the Microsoft/i4i patent case for a while. If you don't remember, i4i came up with a basic system for editing XML documents and patented it. Microsoft included similar technology in Word and got sued. A court, stunningly, decided that this rarely used feature was somehow worth $98, which seemed pretty extreme for a minor (and relatively easy to implement) feature. But, such is life in a world with software patents. The CAFC (appeals court) upheld the ruling, and Microsoft appealed to the Supreme Court. At the time, I didn't think there was much of a chance of review, as I didn't realize there was a bigger legal point that Microsoft was attacking here. However, it later came out that the focus of the appeal was the standard used in patent cases. As the EFF summarized in discussing the case:

In court, parties have to prove their case by some "standard of proof." In almost all civil cases, the standard is "preponderance of the evidence" -- meaning it is more likely than not that the facts are true. When the question is invalidating a patent, however, the U.S. Court of Appeals for the Federal Circuit decided that a defendant trying to prove a patent invalid must do so by a higher standard than normal civil cases, that of "clear and convincing" evidence. "Clear and convincing" means that the facts are "highly probable," which is a much more difficult standard to meet when trying to invalidate a patent than just a preponderance.

That question apparently was intriguing enough to at least four Supreme Court Justices, as this is one case they have agreed to hear. For the past decade or so, the Supreme Court has been smacking CAFC around on a variety of patent issues, and if it was comfortable with how CAFC ruled here, it could have declined to hear the case. So just taking the case indicates concern among at least a core group of the Justices. This could mean that the standard for invalidating a patent could be lowered -- which would be a pretty big win for those of us who worry about how often bad or obvious patents are allowed to remain standing in various innovation-hindering lawsuits.

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Filed Under: patents, standard, supreme court
Companies: i4i, microsoft

10 Comments

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Anonymous Coward, 30 Nov 2010 @ 6:05am

This will come back and bite Microsoft and tons of other companies in the ass.
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- Anonymous Coward, 30 Nov 2010 @ 6:51am
  
  Re:
  the entire patent system is already biting them in the ass hard. they cant really make the situation worse for themselves.
  
  when you hit bottom, the only place to go is up.
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  - Sean T Henry (profile), 30 Nov 2010 @ 7:13am
    
    Re: Re:
    "when you hit bottom, the only place to go is up."
    
    Or you can pick up a shovel and start digging.
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Anonymous Coward, 30 Nov 2010 @ 7:03am

when you hit bottom, the only place to go is up

At the bottom you can go up but only if you stop digging
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- Anonymous Coward, 30 Nov 2010 @ 7:23am
  
  Re:
  And if you stop digging how will you ever get to China?
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  - Chargone (profile), 30 Nov 2010 @ 12:07pm
    
    Re: Re:
    because we totally want to be on the Inside of that great firewall now, don't we ... :S
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Vic, 30 Nov 2010 @ 12:50pm

Gosh, it's good to be a big wealthy M$ when it comes to convincing the Supreme Court to review your case!...
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Anonymous Coward, 30 Nov 2010 @ 8:28pm

Perfectly Simple Fix
The whole idea of patent infringement is dumb. Patents should be there to be used "to promote the progress". Use of them should be encouraged, not forbidden with legal threats. A twenty-year-old patent is almost useless as a source of information in any fast-moving field. Patents presently spend 17 to 20 years being effectively useless to anybody but lawyers, then the infringement period finally runs out. Only then does the patent get to be useful, maybe, to the general economy. What a waste.

Get rid of infringement. Repeal that part of the law. Make patents usable from day one.
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- Anonymous Coward, 1 Dec 2010 @ 11:47am
  
  Re: Perfectly Simple Fix
  I thought after 19.9 years, if the patent is still 'useful' to the company (for suing other companies if nothing else), the filed a slight update (don't recall the specific term) to 're-patent' it so they could continue to sue for another 20 years.
  
  So if the patent was for a method of 'doting I's with a smiley face', at 19.9 years they would file an update for 'doting I's with a winking smiley face'....
  
  Hopefully I'm mistaken
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- Jose_X, 2 Dec 2010 @ 12:21pm
  
  Re: Perfectly Simple Fix
  Patents are broad and stifling. They don't work at least where they overlap with copyright, and if you don't like copyright even there, just imagine. They stifle too many in the field of software; they don't recognize independent invention; and it's extremely expensive to prove innocence even when you have prior art available, never mind when you can't find a needle in the haystack. [How many billions of lines of software source code have been written over the years?] http://opensource.com/law/10/11/software-too-abstract-be-patented#comment
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