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Supreme Court To Hear Microsoft-i4i Case Monday
CWmike writes "Patent attorneys and inventors of all types are closely watching a Microsoft case that the US Supreme Court will start to consider on Monday. 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, experts said. 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. In hearing this case, the Supreme Court could decide to lower that standard of proof, she said."
They're all invalid. Every last one should have to go through it again... and again.. until they get it right.
For justice, we must go to Don Corleone
> 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. In hearing this case, the Supreme Court could decide to lower that standard of proof, she said."
AKA, the court usually finds a way to shoehorn something that's highly important to the status quo into some or another legal theory.
I'm not a lawyer, but I play one on the Internet. Blog
Now I don't fully understand this case, but if the "flagship" product word is in trouble, does it really matter? There are MUCH better office solutions out there and there free. Microsoft office is a great product if you want to waste money and get a bulky program. When I need an office program it's time for Open Office or Libre Office, both of which not only out perform Word but do a better job as a word processor.
You know, that made sense?...
For justice, we must go to Don Corleone
If Microsoft wins this case, its purported 235 patents that Linux supposedly infringes upon (they have yet to list them after all these years because they are likely piss-weak) are further weakened?
I'm all for it.
Go Microsoft!
--
BMO
Lowering of standards has been pretty common of late. I would expect them to do this.
---- Booth was a patriot ----
I think amanfrommars made his way here.
http://www.cnet.com/profile/amanfromMars/
He can be spotted from time to time on the Reg
http://forums.channelregister.co.uk/user/5578/
--
BMO
From the article (above) "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". Surely the burden must be on the patent holder to prove that their patent has been infringed. What happened to 'Innocent until proven guilty'?
Smivs on the intertubes!
Never interrupt your enemy when he's in the process of shooting himself in the foot.
--
BMO
I am a patent attorney. I write and prosecute patents. I don't do litigation. Nevertheless, I've been keeping an eye on the i4i case. The Computerworld article grossly oversimplifies the issues in this case. There are different types of prior art that can be used to invalidate a patent. The prior art at issue in the i4i case is not a printed publication or any type of publicly-available reference the Examiner could have reasonably been expected to find. The prior art at issue is prior art known only to the inventor.
While the Supreme Court could lower the standard across the board for all types of prior art, it's more likely the Court will lower the standard only for prior art not available to the Examiner through printed publications or other publicly-available sources.
For an excellent analysis, see this blog post: http://www.reexamlink.com/category/patent-litigation/
(You have to scroll down to get to the i4i blog entries)
I've bumped into similar posts in other parts..a breath of fresh air they are...
For justice, we must go to Don Corleone
I would think the (US) patent office has a legal requirement to properly investigate patents before approval. If it can be shown they don't- then that should (morally should, I don't know about legally) reverse the process and require patent holders to prove the patent valid before they can enforce it. I believe in lawsuits they normally follow the most likely answer (preponderance of evidence) instead of proven beyond reasonable doubt. I suggest they keep that standard for patent validity.
Then support both sides so they destroy each other.
This is a tricky one, but not for the reasons you say. I can't stand patent trolls, but then I don't consider i4i to be one. Sure they have patents, but they also sell a product which uses those patents. For me, a patent troll is a company who sits on a portfolio of patents, produces nothing with them (ie. doesn't sell any products) and then just sues everyone else for coming up with the same ideas.
That said, this patent is complete rubbish. It is not a novel idea. It sits on top of XML, which is an extensible system that can handle custom XML tags. They then have the idea to have a user interface to use that facility. Where is the originality in that? What problem did they need to overcome to produce this feature? They didn't make a Word Processor and they didn't make the extensible file format so why can they control the way these things are linked together?
This just shows that a company that falls outside my personal idea of a patent troll can still come up with lousy patents anyway. The problem is not theirs though, it sits firmly with the patent office. This should never have been approved.
Finally (and more controversially), I also don't consider Microsoft to be evil. Seriously, what evil have they done to you lately?
Not likely to have especially broad implications. The factual question is whether the current standard of deference given to a patent should be maintained in the face of art submitted by a defendant, if that art was never considered by the patent office. Of course, 97% of patent cases never reach a jury, and relatively few of the remaining 3% turn on an invalidity analysis (as opposed to simple infringement/non-infringement).
There's a good analysis of the likely impact of any Microsoft-favoring ruling over at Patently-O.
I suspect that many of the large LFOSS/GPL... foundations vet all their source code much better than the proprietary-pirates of pseudo-capitalist US, EU, RU, CN... economies.
Ask your legal staff if http://www.libreoffice.org/ and other LFOSS/GPL... products are less problematic legally. I am not a lawyer, but I suspect (if the lawyers are technology aware) the answer is YES!
Unaccountable leaders are masters, and unrepresented people are slaves. How do US and EU fare?
# You're too shy shy, hush hush ... /#
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
You make an excellent point that juries won't care about the distinction between "preponderance" and "convincing," and you're right, they wouldn't.
Unfortunately, the power of the jury has been under attack for some time. Have you done jury duty lately? The juror's oath used to be that you would apply the law without prejudice and in good conscience. Today the oath has been changed to include "following the judge's instruction."
There are no boundary limits put on the judge's instruction.
We used to have hung juries all the time. Hanging the jury used to be an acknowledged right of any jury member. It was considered a safeguard of justice. "If twelve can't agree, then it stops." Today, judges simply remove "problem" jurors in the interest of expediency.
Juries today are well on their way to becoming very little more than rubber stamps for the judge's decision.
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
> Previously, the Supreme Court has said that the Patent Office has the final say...
What? When, and on what? What can't you appeal from the patent office, except for a few minor procedural issues?
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
The real problem is we should have different--lower standards for challengers--for patents in areas that are only tenuously patentable.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
> the definition of "prior art" to the PTO is published academic documents, certain trade publications, and US registered Patents.... it's > not really "ever used anywhere" and the Patent office and courts have routinely said "tough luck" to those not filing a patent to
> protect their invention when somebody else did first.
No. That is not the definition of prior art. Review the MPEP. Read the cases. It is broader.
Also, routinely perhaps, but that does not always mean unfairly. For example, they will say tough luck to people who keep things as trade secrets and then try to patent their inventions only when someone else patents it. Why? Because the whole idea of a patent is you disclose the invention to the public in order to get the benefit of a monopoly for a limited time. If you kept it secret, you generally have shown you were unwilling to make that deal when you invented the thing. So if someone else patents your trade secret, you don't get to claim the patent.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
So you want to turn it over to a single judge who couldn't even cut it in private practice?
Jesus was all right but his disciples were thick and ordinary. -John Lennon
In a patent case, yep.
Snowing hayseed jurors, specifically in Eastern Texas, is a time-honored practice of patent plaintiffs.
Every judge I've ever met would agree with you. No judge thinks any twelve random people can come to a better decision than they can.
The problem is that every single one of those judges is wrong, and juries were given power for exactly that reason. If juries can't be trusted to decide mere business issues, then they certainly shouldn't be trusted with matters of life and death. The awesome power of the jury was given to twelve random changing people because to do anything else would create a dangerous, inevitably corrupted ruling class. Judges aren't as wise as juries because the institutional arrogance that comes with the job inures them to the reality they're dealing with. Given enough time, every judge becomes Roy Bean. We counter that tendency by placing them in service to twelve random people. By placing the judge in their proper place as mere referee to the lawyers and advisor to the jury, we can keep the court grounded and properly humble before the awesome responsibility they carry.
Given their job, no judge should ever sleep well.
Unfortunately though, you're right. Our juries today are made up of people who can't hold gainful employment, people "not smart enough to get out of jury duty." Every place I've ever worked has made it very clear that if you get chosen for jury duty, you should spend your nights spreading resumes. The very people we most want serving on a jury are exactly the people who would lose their houses if they had to forgo their income for a six-month trial.
We can fix this problem with a few changes. Each juror should be paid the same hourly wage as the highest paid lawyer in the room. No juror can ever be found in contempt of court. No juror can be removed exept for clearly proven misconduct such as bribery. A jury will be declared "hung" when more than six jurors declare it to be.
To compensate for the inevitable bozos, each attorney will be given twice the number of peremptory challenges. Voir dire will get a little longer, but if you make these changes, you'll find juries of a quality worth arguing cases in front of.
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
This particular patent was Especially Invalid. It is basically a patent for using XML in a particular way to store a word processing document. XML is a generalized specification for storing any sort of data in a human readable manner. The patent was the equivalent of taking a general purpose automobile and patenting its ability to drive on 2-lane mountain roads. That you couldn't drive your car on 2-lane mountain roads without a license from (and payment to) the patent holder. No one would have ever accepted that, and this patent should have been thrown out of court the moment it arrived, long before any ignorant jury verdict. The SCOTUS should put a spike through the heart of this thing once and forever!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Not really, no. I can see where you might think that based on a few slashdot articles, though.
The courts are responsible for adjudicating disputes. If someone asks them to enforce a patent, that is definitely their problem.
Patent disputes are only a small part of the work load of most District Courts. The Federal Circuit, on the other hand, handles lots of patent cases. They are in some ways the most rule-bound Circuit Court of Appeals in the country. They like patent cases. They dislike bad practice in patent cases, but they get to shape much of the law in the way they want to. Nobody is really getting tired of enforcing "sloppy patents"--patents have to be pretty technically specific and definite about what they cover.
You may be thinking about abstractions, algorithms, and obvious things that we might think the USPTO should never have granted. If you were looking at just some of the banner cases, you would see the cases where the Supreme Court steps in, which are rare. The Supreme Court has raised the bar for patentability somewhat in recent years, which I think is a good thing, although it makes getting patents on genuinely legitimate new Patentable subject matter harder. But they are only addressing one or two patent cases a year, and they are definitely not doing it because they are tired of enforcing sloppy patents. They don't enforce patents. They try to figure out what the law should be on issues that enough justices (four Supreme Court Justices) agree are important cases to hear. They tend to look at whether there is a split between the circuits (which is less relevant in patent cases because they all go to the federal circuit), whether the case below was decided wrongly, how important it is to establish more clearly what the law is in a given area, and whether the particular case before them is a good case on which to decide the issue they feel is important.
Patent law is written by Congress, but they have not changed it in quite a while. There are new changes put forth every year, but they haven't made it through Congress since 1999. (Although one patent bill passed the Senate this year.)
The USPTO is not granting anywhere near as many patents as possible--I believe their grant rate is lower than 50%, and the examiners take their jobs seriously and try to figure out whether each patent should be rejected or not under the MPEP (their guide, which is mostly the law, but organized with guidance for them).
The patent office is... mmm... interesting. You are right, they are sort of using them as a piggy bank--or more accurately, a tax on invention and government backed monopoly. They are taking about 5% of the fees collected by the USPTO this year for the general federal budget. That is definitely not the only use or interest in them that Congress or the Administration have. (Or even the biggest interest. They are only looking to get $100 million that way. There are lots of individual patents out there worth much more than that, although most are worth much less.)
The Courts cannot [usually] throw things back to Congress, although they can decide which way to rule based on a feeling that Congress is better capable of acting than they are. (e.g. "You made a good argument for a new rule, but a legislative body that is making social policy decisions and that can engage in extensive factfinding is better suited to change the law in that way; we lack the institutional competence or authority to do so.")
Courts also don't tell companies to use their lobby money for particular things. They decide cases. They may, as I said, say that legislative action would be necessary for the company to get the result it wants--but it usually says that to the side that loses. And it usually does not result in congressional action. Sometimes it does--although to be fair, companies lobby to overturn court decisions by legislative action regardless of whether the court accepted an institutional competence argument.
It is also not an unfunded mandate on th
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
well, the E.D. Tex. is chosen by plaintiffs least as much for the speed at which litigation is resolved (which is nominally a good thing and a function of judges) as for the jury pool. Additionally while E.D. Tex. has very knowledgeable judges on patent issues, if you are a senior user it is very open to debate whether you want E.D. Tex.'s particular variety of knowledgeable judge.
Be happy everybody, if Microsoft WINS by buying the court... then there is no need for ANYONE to respect or care about Microsoft Patents, and therefore WE'LL HAVE THE RIGHT TO INFRINGE MICROSOFT PATENTS IN EVERY WAY WE WANT... as we will have LEGAL GROUND to do so...