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Network World - Microsoft didn't just lose its Supreme Court appeal to overturn its long-running i4i patent infringement case, it was trounced. The Justices voted unanimously in favor of i4i, once again kicking court-based software patent reform in the gut. And yet, there is still a glimmer of hope that the ruling will make it easier to invalidate bad patents.
"This case raised an important issue of law which the Supreme Court itself had questioned in an earlier decision and which we believed needed resolution," a Microsoft spokesperson told Network World via an e-mail exchange. "While the outcome is not what we had hoped for, we will continue to advocate for changes to the law that will prevent abuse of the patent system and protect inventors who hold patents representing true innovation."
Microsoft wanted the high court to lower the standard of proof required to overturn a patent. The change would have made it easier to overturn so called "bad" patents, an abundance of which plague the software industry. But it also potentially would have made it easier to overturn any patent.
While the court didn't buy it, some of the opinion issued by individual Justices on Thursday could still make it easier to overturn patents, says David Long, a patent attorney at Dow Lohnes PLLC. "The Supreme Court decision in general is no surprise, but it will have some huge ripples. The Supreme Court increased the jury's role to weigh what the Patent Office did and did not consider in granting the patent. And Justice Breyer's concurrence goes further as to the detail of the jury verdict and may make it easier to invalidate patents."
Justice Breyer wrote, "Courts can help to keep the application of today's 'clear and convincing' standard within its proper legal bounds by separating factual and legal aspects of an invalidity claim say, by using instructions based on case-specific circumstances that help the jury make the distinction ... By preventing the 'clear and convincing' standard from roaming outside its fact-related reservation, courts can increase the likelihood that discoveries or inventions will not receive legal protection where none is due."
Microsoft's case rested on a couple of ideas. It argued that i4i sold the technology prior to submitting it for a patent and that the validity of the patent should also be questioned because i4i "never gave the source code for the product and didn't have it available at trial making for "a compelling case why it doesn't make sense to give this deference to the patent office ... they never had the source code," Andy Culbert, associate general counsel at Microsoft, previously told Network World. I4i chairman, Loudon Owen, called Microsoft's argument "utter nonsense" adding, "It is incorrect and it is another unsubstantiated Microsoft allegation/declaration to say i4i sold their product and did not patent the invention within the one-year time limit. This is wrong."