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EFF, Apache Side With Microsoft In i4i Patent Case

Posted by Soulskill on from the of-pots-and-kettles dept.

msmoriarty writes "Looks like Microsoft has gained some unlikely allies in its ongoing (and losing) i4i XML patent dispute: the Electronic Frontier Foundation and the Apache Software Foundation. The reason? Microsoft has decided the strategy for its Supreme Court appeal will be to argue that the standards of proof in patent cases are too high — this from a company that has thousands of patents it regularly defends. The EFF explains in a blog post why it decided to file the 'friend of the court' brief on Microsoft's side."

1 of 83 comments (clear)

  1. Re:Fun times... by tinkerghost · · Score: 4, Informative

    Although if I were Microsoft at this moment, I'd be paying the lawyers overtime to find out why EFF thinks overturning this patent ruling is a good thing.

    Why pay the lawyers when you can just read the brief & they tell you? EFF thinks overturning the ruling because the ruling is based on "Clear and Convincing" evidence. In other words, a patent is given the same weight as a previous legal ruling - even though nobody is allowed to argue against the patent before it's issued.

    First off you don't come in on an equal footing - patents are assumed to be valid. Next, the level of proof required to set aside a patent is higher than in any other form of IP case. The only other time I can find "Clear and Convincing" as the standard is when the court is stripping someone of their parental rights.

    Between the 2 of them, it makes it almost impossible to invalidate a patent. When the standard was set, the Patent office was:

    • receiving 1/10th the number of patent application
    • Reviewing each patent by someone knowledgeable in the art.
    • reviewing patents involving physical products(items) & processes(chemical processes) not vague fragments of code & general abstraction (business processes)

    At that time, the standard made sense. Under the current process, where an intern with a chemistry degree is approving software patents, it no longer does. Currently, a patent clerk has less than 4 hours to determine if a patent application should be approved or not. Examine some of these patents -- many are upwards of 200 pages of legalese. Nobody can accurately determine the validity of a patent that complex in a few hours - and yet they are given the presumption of validity going in.