Microsoft v. i4i, U.S. Supreme Court - What's at Stake?

Posted Friday, February 25, 2011.

On April 18, 2011, the United States Supreme Court will hear arguments in the Microsoft v. i4i case. The outcome of the case may be that the Supreme Court makes it easier for patent infringers to contest the validity of the patent in question, if the Court finds for Microsoft. On a go-forward basis, the rule would be that the burden of proof for a finding of patent invalidity would be the lower “preponderance of the evidence” standard, rather than the “clear and convincing evidence” standard in use today.

The principal issue in the case being argued is what it takes to invalidate a patent. When a patent owner believes another party has infringed on the patent owner’s patent, that owner will bring a patent infringement suit as the plaintiff. The alleged infringer, now the defendant in the case, may argue that there is no infringement because the patent is invalid and should never have been issued.

The question for the Court is what burden of proof is used to find a patent is invalid. Currently, a patent is presumed valid, and the burden of proof needed to invalidate it is called “clear and convincing evidence.”

That is a phrase that is less familiar to most individuals than other burdens of proof we commonly read about in the news or see on TV. Most of us are familiar with the concept of burden of proof from criminal law: a defendant must be found liable “beyond a reasonable doubt” to be guilty. In a civil trial, the burden of proof is a lower threshold, called “preponderance of the evidence.”

The most common example contrasting these two burdens of proof is that of O.J. Simpson, who was found not guilty of murder in the criminal trial brought by the government because the jury was unable to reach a verdict of guilty beyond a reasonable doubt. He was later found liable in the civil suit brought by the families of the victims, where the burden of proof was the lower preponderance of the evidence standard.

The clear and convincing evidence standard is used in civil trials, like a patent infringement suit. It is a higher burden of proof than preponderance of the evidence. It is not as high of a burden as beyond a reasonable doubt. But for a court to hold that a patent is invalid, the finding must be borne out by clear and convincing evidence. That means it is harder to get a patent invalidated than most common matters brought before a court in a civil suit.

Microsoft is arguing that in some instances, the threshold should be lowered to “preponderance of the evidence.” Is that a good thing? That is probably a post for another day.

EDIT (6/9/11): The decision has been handed down and the Court left the standard at clear and convincing evidence.

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