Posts Tagged: "microsoft v. i4i"

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.

If you are anti-patent then you are anti-innovation because those who innovate are not the behemoths of industry, but rather start-up companies that absolutely require patents in order to attract funding, expand and create jobs. Thus, given the hostility toward patents it is entirely accurate to characterize the Roberts Court as anti-innovation. The Roberts Court increasingly puts hurdles in the way of high-tech job growth. You see, it is easy for anyone to characterize the Supreme Court as “pro-business” because selecting a victor in a “business case” almost necessarily means that a business has been victorious. But what business? One that is likely to innovate, expand, create jobs and form new industry? Or one that once innovated and expanded, but now finds themselves stagnant and laying off employees?

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.

Earlier today the United States Supreme Court granted certiorari in Microsoft Corporation v. i4i Limited Partnership, with Chief Justice John Roberts taking no part in the decision or petition. This comes only days after the United States Patent and Trademark Office refused to grant reexamination of the patent in question. Given Microsoft doesn’t even have strong enough prior art to provoke a reexamination by the USPTO it seems absurd to think they could have been victorious even if the district court reviewed the patent claims de novo and without any presumption.