Score One For The Trolls: Supreme Court Says Congress Intended It To Be Very Difficult To Invalidate Patents
from the canada-celebrates dept
This isn’t a huge surprise, but in the Microsoft v. i4i case over what the standard for invalidating a patent should be (either the super high bar of “clear and convincing evidence” or the slightly lower bar of “the preponderance of the evidence,”) the Supreme Court has now decided that the higher bar is what Congress intended (pdf). This means that it’s that much more difficult to invalidate bad patents. The Court’s ruling is basically that the common law presumption of validity mostly (but not entirely) used this standard, and when Congress passed the 1952 Patent Act (really written by patent lawyers), it simply meant to codify what the common law had said on that issue. It was an 8-0 ruling (with Chief Justice Roberts not taking part due to Microsoft investments, I believe), though Justice Thomas had some reservations about the thinking, but not the final judgment. The opinion was written by Justice Sotomayor, who got a bit snarky at points:
“Squint as we may, we fail to see the qualifications that Microsoft purports to identify in our cases.”
I recognize the general reasoning of the Court in the case. Basically, it looks like, historically, a higher standard was frequently used, and since Congress didn’t specify a different standard, it seems to suggest they were fine with the standard. But I think to some extent that ignores reality. First of all, the 1952 Act was written by patent lawyers and it’s not clear Congress even understood all of it, so it seems a bit rich to suggest that it purposely was trying to codify that standard. On top of that, the use of the patent system has changed dramatically over the past few decades, and the entire presumption of validity is increasingly in question given the massive number of ridiculously bad patents approved by the Patent Office. As it currently stands, USPTO examiners rush through applications, spending an average of about 18 hours on each application. To grant patents with so little review and then presume they’re valid with a ridiculously high barrier to challenging that presumption seems economically stupid.
In what world does it make sense to grant innovation-limiting monopolies for nearly two decades based on 18 hours of review?
But, in the end, this is really Congress’ problem to fix — which means they won’t. Congress could fix this quite easily by clarifying a lower standard to invalidate patents. This makes tremendous sense. The only patents it would impact are bad patents. And no one — even patent supporters — should want bad patents. But you know who does like bad patents? Those who have them and those who profit from them — and those people are really loud in their support of not messing with the system that gives them so much in monopoly rents. So it seems highly unlikely that Congress will even bother to look at making this simple change to the patent system.