Microsoft and EFF: ‘The enemy of my enemy ...’

Open source advocate and Redmond on same side of patent case

The incongruity of the idea that the Electronic Frontier Foundation (EFF), long an advocate of open source software, would join Microsoft in fighting a patent case brings to mind the Bill Murray world gone topsy-turvy warning from “Ghostbusters” about “mass hysteria ... dogs and cats living together.”

In fact, dogs and cats -- in their little dog pinstripe suits, clutching their little cat briefcases -- are working together on a case that may be heard by the U.S. Supreme Court on lowering the burden of proof for invalidating a patent already granted by the U.S. Patent and Trademark Office (USPTO). This week, the EFF, along with the group Public Knowledge, the Computer & Communications Industry Association and the Apache Software Foundation, filed a friend-of-the-court brief asking the Supreme Court to hear Microsoft’s case against i4i Ltd., which successfully sued Microsoft for infringement of its patent covering editing documents containing markup languages like XML. A previous version of Microsoft Word had XML editing capabilities, EFF explained.

At issue is the standard of proof required in patent cases. In most civil cases, the standard is the “preponderance of the evidence,” meaning more evidence proves the case than disproves it. But on the issue of invalidating a patent, the U.S. Court of Appeals for the Federal Circuit ruled that a defendant trying to invalidate a patent they’re accused of infringing must meet a higher standard of “clear and convincing” evidence. Microsoft is asking the Supreme Court to rule whether that higher standard is fair as it argues that prior art, which i4i claimed as its invention, had actually been embodied in a software product sold in the U.S. a year before i4i filed for its patent. The USPTO, though, failed to consider it.

EFF and the other groups are siding with Microsoft in this case because they believe dubious patent claims will inhibit innovation, particularly from within the open source community.

“The [clear and convincing] standard undermines the traditional patent bargain between private patent owners and the public and threatens to impede innovation and the dissemination of knowledge,” wrote Michael Barclay, an EFF Fellow, in a blog post.

Keep in mind that Microsoft, with its new court friends, is the same Microsoft that previously considered Linux a “cancer,” but then was born again to the notion that “we love open source.” Earlier this year, Microsoft like a repentant spouse, promised an open source gathering in San Francisco that, "it's really changing."

Observers, like Network World open source blogger Alan Shimel, note that Microsoft -- even with EFF, Apache and tech notables such as Apple, Dell, Google and Intel behind it -- is unlikely to get the Supreme Court to take this case.

And i4i, looking at this line of combatants arrayed against it, is officially undaunted.

"We are confident we will continue to prevail,” said Loudon Owen, chairman of i4i, in a prepared statement delivered to me today.

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