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."

Comments

Too big to fail doctrine

[Compaqt]

> 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.

Re:Too big to fail doctrine

[Raenex]

From what I can tell, "clear and convincing" means you have a damn good case, with something like 90% certainty, and "preponderance of the evidence" means you have greater than 50% certainty -- meaning just weight both sides equally and choose which one you believe has the better case.

If those are the kind of instructions given to the jury, then I'd expect them to apply them, for the most part. I think if the Supreme Court changed the balance it would make a big difference.

Re:Too big to fail doctrine

[mabhatter654]

To be blunt, I don't even know why this got to the Supreme Court. There's little "constitutional" merit to the case. Microsoft is used to companies they can buy our bully.. in this case i4i sold the product TO the patent office so the patent office was in a unique position to know much more about the invention than other ones. Previously, the Supreme Court has said that the Patent Office has the final say... lower Appeals courts have backed that up. This is consistent with the prior ruling on Copyright (from the same clause in the Constitution) that Congress is the one that sets those rules. If you don't like them, talk to Congress.

Back on the topic of Microsoft, they find themselves in the spot that Microsoft has NOTHING these guys want other than to watch Microsoft STOP SELLING something. So for all the games Microsoft plays, they've found themselves at the wrong end of the stick they've enjoyed berating "piracy" for decades. The courts are getting loath to keep allowing endless appeals in these patent cases... many of the lower courts and even other Supreme Court cases point to a trend that the courts want to wash their hands and tell folks to get Congress to fix the rules... also, Bush put into place a lot of "unitary executive" believers, and the Patent Office is an "Executive" department... so the current court is leaning highly toward "em's the Apples" and that's the Law as it stands.

So...

[bmo]

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

Re:So...

[Grond]

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?

Microsoft is a defendant in about 50 patent infringement suits at any given time. They are the target of far, far more patent infringement suits than they file. It's in their strategic interest to make it somewhat easier to invalidate patents.

This case also demonstrates the lengths to which Microsoft is willing to go to defend an infringement case. There was a full jury trial, a reexamination at the Patent Office, a (denied) request for a second reexamination, an appeal of the injunction to the Federal Circuit, an appeal of the case itself to the Federal Circuit, and now this appeal to the Supreme Court. If the Supreme Court agrees with Microsoft, the case will go back to the trial court for a new trial, with, potentially, another round of appeals if Microsoft loses again.

Re:So...

[gnasher719]

This case also demonstrates the lengths to which Microsoft is willing to go to defend an infringement case. There was a full jury trial, a reexamination at the Patent Office, a (denied) request for a second reexamination, an appeal of the injunction to the Federal Circuit, an appeal of the case itself to the Federal Circuit, and now this appeal to the Supreme Court. If the Supreme Court agrees with Microsoft, the case will go back to the trial court for a new trial, with, potentially, another round of appeals if Microsoft loses again.

If you have been fined $400 million or so, you can invest quite a few million into trying to reduce that number.

Re:So...

[Ronin Developer]

This also clearly demonstrates why the little guy can't ahead in this world. Large corporations with deep pockets will suck you dry and keep on infringing long after you have lost everything - even if you are right.

Patents were designed for ideas that can be constructed and touched - aka inventions - not just ideas.

Software patents should not be allowed. Period.

Re:It's just word!!

[countertrolling]

...both of which not only out perform Word but do a better job as a word processor.

Anything beyond a spell checker is excessive bloat.

The computerworld article is terrible

[Anonymous Coward]

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)

Re:It's just word!!

[r.stallman]

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.

I'm not sure if you're being serious, but recently I used Office to complete my PhD thesis in physics and it was amazing. I wrote a quick VBA in Excel to directly interface to my cold fusion power output detectors (resistance lowered when immersed to indicate increased temperature) and rather than have to use complex formulae a wizard suggested the best one automatically! The charts looked super smooth and slick, not like Open Office where frankly the results looked quite random.

But back onto word processors, Word is amazing too. I'd pretty much only just started writing the introduction when "It appears you are writing a thesis, would you like help?" appeared. After I clicked yes for every term I entered it automatically fetched Wikipedia results and referenced them, I was done in no time! Now that I'm a Doctor I'm also using MS Flight Simulator to learn to fly as soon I'll be able to afford my own private jet. Thanks again Microsoft!

Due dilligence

[currently_awake]

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.

Re:Wrong way round, surely

[Gadget_Guy]

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.

You are mixing up two separate arguments:

1. The patent holder has to show that the patent was infringed. If they can't do this, then it is game over.
2. If they can show infringement, then the defendant can argue that the patent should not exist in the first place due to being too obvious, or having prior art etc.

Changing the rules for the second part does not affect the first part.

Re:Cognitive dissonance

[Gadget_Guy]

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?

"It won't matter to juries" Juries still matter?

[jeko]

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.

Re:It's just word!!

[mabhatter654]

various versions of MICROSOFT Word don't have good formatting between them... how could anybody ELSE do better when the format's own creators can't seem to get it right.