Patent attorneys and inventors of all types are closely watching a Microsoft case that the US Supreme Court will start to consider on today.
The case, which centers on a technology patent assigned to i4i that almost forced Microsoft to stop selling its flagship Word software, could have broad implications in the way patents are awarded and upheld.
Currently, when a patent holder accuses someone of infringing a patent, the burden is on the infringer to prove with “clear and convincing evidence” that the patent is invalid, said Sarah Columbia, head of the intellectual-property litigation practice group at McDermott Will & Emery LLP.
While arguing against the validity of the i4i patent, Microsoft presented new evidence that had not been considered by the US Patent & Trademark Office when it granted the patent. Microsoft argues that with the new evidence, the burden of proof should be lowered to “a preponderance of the evidence,” rather than the stricter clear and convincing evidence, Columbia said.
She envisions three possible outcomes from the Supreme Court. At one extreme, it could lower the standard of proof for patents so that accused infringers have only to prove by a preponderance of the evidence that a patent is invalid.
Alternatively, the court could lower the standard of proof only in situations where an infringer presents new evidence that the patent office has not already considered, as Microsoft has done.
A third option is to leave the current required standard of proof unchanged.
If the court does lower the standard, it would become easier to invalidate patents, Columbia said. “Over time, if the burden of proof is lowered to prove invalidity, you’ll find more cases where patents are found to be invalid,” she said.
I4i paints a more dire picture. “The implications are gargantuan,” said Loudon Owen, chairman of i4i. “The whole system for innovation in this country is predicated on the patent system. If patent rights are eroded to where there’s no point in having a patent because you can’t enforce it, that will disrupt policy and the practice of disclosure.”
The resulting uncertainty could cause some inventors to decide against patenting their technology, which would mean others couldn’t license the technology to build on top of, he said.
Microsoft countered that “questionable patents that should never have been issued” stifle innovation.
“Responding in litigation to these bad patents imposes a tax on all innovative companies and ultimately on the consuming public,” Andy Culbert, Microsoft associate general counsel, said in an e-mailed statement.
The case dates back to 2007, when i4i sued Microsoft for allegedly infringing a patent covering a technology that lets users manipulate the architecture and content of a document. It said Microsoft infringed the patent by allowing Word users to create custom XML documents. In 2009, the US District Court for the Eastern District of Texas found in i4i’s favor and ordered Microsoft to stop selling Word products in the US in their current form. Microsoft eventually removed the feature in order to continue selling the product.
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