Microsoft Asks Supreme Court To Look Into Patent Validity
from the watch-for-fireworks-on-this-one dept
Looks like the Supreme Court will have yet another chance to weigh in on patent issues, as it’s taken an active interest in the space for a few years now. Microsoft has appealed an appeals court ruling in a patent lawsuit to the Supreme Court. At issue is the standard courts need to use in assessing the validity of a patent. Patent system fans love to insist that the “assumption of validity” is a key component of patents, and any weakening of that assumption (even if it’s to get rid of bad patents) is a problem. In this case, Microsoft presented new prior art that it says shows an original patent (which it was being sued over) was invalid. The Patent Office hadn’t considered that prior art in originally awarding the patent, so Microsoft believes (reasonably so) that courts should take that into account and review whether or not the patent itself is valid. The courts, however (led by CAFC), have put in place a policy of saying that defendants need to show “clear and convincing evidence” in order to get them to reconsider the validity of the patent — which is a much higher barrier.
Microsoft, in its argument, cites the recent KSR v. Teleflex decision on patent obviousness, where the Supreme Court had noted that the entire presumption of validity is based on the idea that the USPTO has, “in its expertise” reviewed and approved the claims in the patent. From Microsoft’s perspective this would mean that if you present evidence that the USPTO did not consider it should call the presumption of validity into question, because it knocks out the very rationale for that presumption in the first place. You would think that, with the recent reports noting how often the Patent Office eventually rejects claims on review, the so-called “expertise” of the patent examiners should already be in question.