Supreme Court Will Review The Standard For Patent Infringement: Could Raise The Bar
from the preponderance-of-the-evidence dept
We’ve been following the Microsoft/i4i patent case for a while. If you don’t remember, i4i came up with a basic system for editing XML documents and patented it. Microsoft included similar technology in Word and got sued. A court, stunningly, decided that this rarely used feature was somehow worth $98, which seemed pretty extreme for a minor (and relatively easy to implement) feature. But, such is life in a world with software patents. The CAFC (appeals court) upheld the ruling, and Microsoft appealed to the Supreme Court. At the time, I didn’t think there was much of a chance of review, as I didn’t realize there was a bigger legal point that Microsoft was attacking here. However, it later came out that the focus of the appeal was the standard used in patent cases. As the EFF summarized in discussing the case:
In court, parties have to prove their case by some “standard of proof.” In almost all civil cases, the standard is “preponderance of the evidence” — meaning it is more likely than not that the facts are true. When the question is invalidating a patent, however, the U.S. Court of Appeals for the Federal Circuit decided that a defendant trying to prove a patent invalid must do so by a higher standard than normal civil cases, that of “clear and convincing” evidence. “Clear and convincing” means that the facts are “highly probable,” which is a much more difficult standard to meet when trying to invalidate a patent than just a preponderance.
That question apparently was intriguing enough to at least four Supreme Court Justices, as this is one case they have agreed to hear. For the past decade or so, the Supreme Court has been smacking CAFC around on a variety of patent issues, and if it was comfortable with how CAFC ruled here, it could have declined to hear the case. So just taking the case indicates concern among at least a core group of the Justices. This could mean that the standard for invalidating a patent could be lowered — which would be a pretty big win for those of us who worry about how often bad or obvious patents are allowed to remain standing in various innovation-hindering lawsuits.