We often think of Microsoft as being the aggressor in patent lawsuits. Who can forget their efforts to patent smilies or, more recently and seriously, its anti-Android patent lawsuits. But, remember that Microsoft has often been found guilty of violating patents itself in such cases as against Uniloc. Now, Microsoft has made its last moves against i4i in the Supreme Court over its violation of I4I’s XML patents.
This is serious stuff. At one time, a U.S. District Court had ruled that Microsoft couldn’t sell any version of Microsoft Word or Office that could create .XML, .DOCX, or .DOCM files. Had that injunction been enforced immediately, there would have been a time during the fall of 2009 when you couldn’t have bought Office 2007 or 2010. That’s no longer in the cards because Microsoft removed the offending code in December 2009, but besides wanting its $200-million fine back, Microsoft wants, according to Thomas Hungar, of the Gibson, Dunn & Crutcher, who represented Microsoft before the Supremes. “Microsoft wants the patent system strengthened, and the patent playing field fair and balanced.”
What Microsoft and friends means by this is that the courts should use a lower burden-of-proof bar for patent violations. As it stands now, if you’ve been accused of violating a patent you must show “clear and convincing evidence” that the patent is invalid. Microsoft wants the burden of proof to be lowered to “a preponderance of the evidence.”
Specifically, Microsoft holds the position that i4i shouldn’t have been granted the patent because the technology had been used in a product before the U.S. Patent and Trademark Office (PTO) awarded the patent. Microsoft has a lot of friends who think this is a grand idea including Apple, Cisco and Facebook. Together, the chief counsels declared in a joint statement that “Allowing a bad patent to stand simply because it’s propped up by the wrong courtroom standard will in fact undermine the system.” And, “The use of this heightened standard in these circumstances creates courtroom conditions that protect bad patents and, in some cases, make it easy to game the system. Ultimately, the harm extends to our national climate for innovation, and the ability for great inventions to support great businesses.”
Excuse me if I snort in disbelief. I think all software patents are garbage, but Microsoft uses them like a bludgeon when they’re the one holding the attacking side of the club. Just ask Tom-Tom how they felt about being smacked into a patent licensing agreement by Microsoft.
So, what’s going to actually happen here? I asked some my intellectual property law buddies and this is what they told me.
