Posts Tagged: "i4i"

Amici Support i4i at Supreme Court in Microsoft Patent Case

What becomes clear in reading these briefs (and the excerpts below) is that despite what you might have heard to the contrary the Supreme Court has already previously addressed this issue and has done so in support of a standard appreciably higher than the mere preponderance supported by Microsoft. The argument of those in support of Microsoft has been that at least some Circuit Courts of Appeal had a lower presumption of validity prior to when the Federal Circuit announced the clear and convincing standard of proof and thereby settled patent law. While that may be true it seems abundantly clear that law setting a preponderance standard was directly in conflict with the clear and unambiguous Supreme Court precedent directly on point. In fact, there is even Supreme Court precedent directly on point saying that more than a mere preponderance is necessary even when the prior art has not been previously considered. So perhaps i4i and the amici, including the U.S. government by and through the Solicitor General and the USPTO General Counsel Bernie Knight can convince the Supreme Court not to overrule its own prior decisions and keep an appropriately high standard.

Supreme Court Patent Watch: i4i Files Brief in Microsoft Case

Microsoft would like to have the standard for invalidating a patent claim lowered to a mere preponderance of the evidence standard. They say that prior art not considered by the Patent Office should not be afforded the same level of deference. I say — why not? Truthfully the standard for invalidating patent claims in court should be the same as it is when a patent is denied. The standard shouldn’t even be as low as “clear and convincing,” rather it should be “abuse of discretion.”

A 1000 Page IDS? What’s At Stake in Microsoft v. i4i Case

It is impossible to know for sure, but it is reasonable to assume that the 1000+ page IDS Kappos referred to might be in response to what the Supreme Court will likely do. The Supreme Court doesn’t seem to like to apply changes in the law prospectively, even radical changes as this would be. So if they do lower the burden the changes will be applied retroactively and affect (and infect) issued patents and pending patent applications. With that in mind, those with patent applications pending might want to anticipate the worst and file “everything made by man under the sun” information disclosure statements. That way you will be protected if the Supreme Court says there is a reduced standard for invalidating patent claims when prior art was not submitted to the Patent Office.

Supreme Court to Hear Microsoft v. i4i Arugment April 18, 2011

Today it is quite difficult to demonstrate that a patent claim issued by the United States Patent and Trademark Office is invalid and should not have been issued. Microsoft, along with a great many others, is urging the Supreme Court to change that and make it easier for them to demonstrate that patent claims, and thereby the associated patent rights, are invalid and should not have been issued. A strange association of those who are large patent owners themselves are urging the Microsoft position because they are tired of getting sued on patents that they infringe and having to pay tens of millions or hundreds of millions of dollars because they have trampled on the rights of innovators. So in order to excuse their own infringement they are asking the Supreme Court to throw the entire patent system under the bus, which is sadly more likely to happen than not.

Microsoft Petitions PTO to Reverse Refusal to Grant Reexam in i4i Dispute, Could Moot Supreme Court Appeal

At the end of December, we learned that Microsoft had petitioned the PTO Director to order reexamination of the ‘449, and this morning that petition has been released to the public. It shows that Microsoft’s chances at the Patent Office are not so long after all, that Microsoft’s argument for reexamination are stronger than many thought. The concerns about the “clear and convincing” standard being abandoned by the Supreme Court may not be justified – there is a real prospect that the Microsoft-i4i dispute could be resolved in the reexamination, without the need for the Supreme Court to reassess the burden of proof standard for accused infringers.