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Network World - The U.S. government itself has come out against Microsoft in a Supreme Court case that may decide the way patents are protected.
The U.S. solicitor general, which represents the federal government in the highest court, on Friday filed an amicus brief in support of i4i, saying that the U.S. Patent and Trademark Office should not be second-guessed by a jury.
Indeed, i4i, which won a $290 million patent judgment against Microsoft, has now accrued 22 amicus briefs in its corner, which represent more than 100 companies, organizations and individuals, including the U.S. government, individuals from the military, and venture capitalists. Compare that to Microsoft's 20 amicus briefs, which represent about 60 companies and individuals, including Google, Apple, Cisco, Intel, Red Hat, the Electronic Frontier Foundation and 37 law and economics professors.
STRANGE BEDFELLOWS: Red Hat defends Microsoft in i4i patent dispute
Additionally, IBM and five others have weighed in with opinions on the case via amicus briefs but have not offered support for either party in this case, offering opinions for the Supreme Court to consider before it rules. That ruling is expected in June, with oral arguments slated to begin on April 18.
The Microsoft vs. i4i patent case has become the new rallying point among those that want to see software patent reform, including open source advocates. The technology industry is generally lining up in favor of Microsoft (making for some strange bedfellows defending Microsoft, such as Red Hat). In i4i's corner are representatives from an impressive array of other fields particularly from science, university research, military and the government -- even the U.S. Patent and Trademark Office itself.
Ideally, it should be Congress that tackles the issue of a software patent system run amok, but session after session passes with no real fix. Those wanting software patent reform claim the USPTO frequently issues so-called "bad" patents for software, meaning patents for software "business processes" that don't meet the statutory standard for a patent. Because a software patent can cover a wide variety of how the business process is implemented, discovering all the appropriate existing patents when applying for new ones (known as "prior art") is difficult, expensive and inconclusive.
At issue in Microsoft v. i4i Limited Partnership, according to the Supreme Court blog, is how much proof someone must come up with to prove that a patent is invalid. "Someone charged with violating a patent can avoid liability by showing that the patent is invalid (meaning that the invention does not meet the statutory criteria for obtaining a patent). The question is whether that invalidity must be proven by clear and convincing evidence," the blog states.
Microsoft and its supporters are arguing that the "clear and convincing" standard inordinately raises the burden of proof to invalidate a "bad" patent. They are advocating a standard known as a "preponderance of the evidence" which could ask the jury to consider more heavily evidence of prior art that the USPTO did not consider when granting the original patent.