Posted Monday, April 18, 2011.

Just a couple of updates this morning for topics on which I have previously written…

The United States Supreme Court is hearing oral arguments this morning in the Microsoft v i4i case. The issue in this case is whether the burden of proof to show patent invalidity from “clear and convincing evidence” to “preponderance of the evidence.” And if the burden should be lowered, in what cases should it be lowered? For example, should it be lowered when the defendant raises prior art which was not considered by the examiner?

The result of this case is important for all inventors, since it goes directly to the value of a patent. A patent which has a presumption of validity which can only be invalidated through clear and convincing evidence is a more valuable patent than one which could be invalidated through a lower standard of proof.

The second update for today regards the America Invents Act of 2011, which last week was approved by the House Judiciary Committee with all of the major provisions from the Senate act intact. First to File is still there, along with provisions permitting the PTO to keep all of the fees it collects rather than seeing some diverted for other government use. The bill now moves to the full House for further consideration.

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