Now there is a headline you don't see everyday. How often does the Electronic Frontier Foundation and the Apache Foundation join such strange bedfellows as Apple, Google, Intel and Dell in (get this) support of a case that Microsoft is trying to put before the Supreme Court. The petition seeks to lower the bar to proving a software patent invalid.
The case involves Microsoft's defense of a patent infringement suit brought by i4i, Ltd.. Microsoft lost the case and on appeal, the appeals court affirmed the decision saying that in order to invalidate the patent, Microsoft would have the burden of proving the patent wrong by “clear and convincing” evidence. Microsoft then filed this Petition For A Writ Of Certiorari asking the Supreme Court to rule that "clear and convincing" burden was too high.
Apple, Google, Intel, HP, Dell, the EFF and the Apache Foundation have all filed briefs in support of Microsoft's petition. The reason is they all believe the burden should not be so high to overturn a bad patent.
I will tell you that in lawsuits it is all about burdens of proof. Most of you are probably familiar with the criminal burden of proof "beyond a reasonable doubt". That is generally considered to say that it is over 95% likely that someone is guilty. In most non-criminal or civil cases in order to prevail, the winning party has to prove their case by a "preponderance of the evidence". That is generally over 50%. Obviously a much lower standard.
In patent cases the way the law evolved, the "clear and convincing" standard was applied to overturning a patent. This is in between preponderance and beyond reasonable doubt. Lets call it 75% sure it is wrong. While not at the level of criminal burdens of proof, it is well above most civil cases burdens of proof.
The reason for this is the courts felt that a patent is not issued by the US PTO until after a lengthy investigative process. Therefore, before overturning the decision of the PTO a higher burden should be required. According to the EFF, in a case 3 years ago the Supreme Court ruled "that this high standard of proof should not apply where the prior art involved was not considered by the Patent Office before it issued the patent." Prior art means that the subject matter of the patent was already in use prior to the patent being applied for.
Ok, enough of the legal jargon. The fact is that in today's fast paced and technologically advanced patent landscape, the US PTO is not in position to adequately understand the nuances of every patent application coming through the door and does not have the time and resources to do an exhaustive search for prior art. So why do we even bother issuing software patents? That is a good question we can address in a later post.
Why does this matter to the open source community? Let me quote from the EFF blog on it:
If successful, this challenge should help in the fight against bad patents by lowering the standard required to prove that the patent is invalid to the same one required to prove infringement. It should especially help the free and open source community.
The EFF further states:
EFF argues in its brief that the Federal Circuit’s requirement that an accused infringer prove patent invalidity by “clear and convincing” evidence unfairly burdens patent defendants, especially in the free and open source software context. The standard undermines the traditional patent bargain between private patent owners and the public and threatens to impede innovation and the dissemination of knowledge. EFF is of course concerned with the effect illegitimate patents have on innovation.
So lets keep an eye and see if the US Supreme Court grants Microsoft's petition to hear this case. But be warned, they generally don't on this type of stuff.
One thing for sure is we need a better system for software patents in this country. Some other countries don't recognize them at all. What do you think?
As co-founder and Managing Partner at The CISO Group, Alan Shimel is responsible for driving the vision and mission of the company. The CISO Group offers security consulting and PCI compliance management for the payment card industry. Prior to The CISO Group, Alan was the Chief Strategy Officer at StillSecure. Shimel was the public persona of StillSecure as it grew from start up to helping defend some of the largest and most sensitive networks in the world.
Shimel is an often-cited personality in the technology community and is a sought-after speaker at industry and government conferences and events. His commentary about the state of security, open source and life is followed closely by many industry insiders via his blog and podcast, "Ashimmy, After All These Years" (www.ashimmy.com). Alan is now also a regular contributor to The CISO Group’s security.exe blog and podcast. Follow him on Google.
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