Microsoft Patent Case in the Supreme Court's Hands

Microsoft Patent Case in the Supreme Court's Hands

Summary: Microsoft tries its final gambit in winning a patent lawsuit with Microsoft as the patent violator.

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TOPICS: Microsoft, Legal
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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.

Page 2: [The Lawyers' Viewpoint] »

The Lawyers' Viewpoint

Andrew 'Andy' Updegrove, a founding partner of Gesmer Updegrove, a top technology law firm, said, "The i4i case first and foremost showcases how badly broken the U.S. patent system is when it comes to software patents. Virtually no one disagrees that they are too easily obtained, for multiple reasons, including the facts that it's very difficult to do "prior art" searches in this area, and because the software team at the PTO is woefully understaffed (there were over 500,000 software patents filed last year) and under-funded. So many would agree with Microsoft that the only way to offset this fact is to get rid of the current strong presumption that a patent, once issued, has been properly issued. First, because it's likely to be wrong in so many cases, and second, because it means that a defendant may unfairly feel that it had better pay up rather than fight; even though it believes that the patent is in fact bogus."

Be that as it may though, Updegrove continued, "Of course, as so often happens in litigation, the case that is before the Supreme Court isn't the right tool for the job that needs to be done. Why? Because the patent at issue appears to be valid, and Microsoft's conduct appears to have been improper, which puts everyone in a bad position. If the Supreme Court does lower the bar on proof, then many (including me) would believe that the state of the law had been improved. But on the other hand, poor i4i, which has already seen its business destroyed and poured millions of dollars into litigation, would have to endure yet more delays and expense even it ultimately still wins under the lower challenge standard."

"Nor is the case as black and white regarding whether the current rule is better for big companies or small ones and individual inventors. In fact, bad patents are bad for everyone," said Updegrove.

Taking a more nuts and bolts approach, Thomas Carey, partner at Sunstein Kann Murphy & Timbers, a leading IP firm and chair of it Business Department, said, "Microsoft has a coherent argument: the standard of proof is not mandated by statute. The patent act only creates a presumption of validity for issued patents, but does not specify the level of proof that is needed to overcome that presumption."

But, "In all likelihood, Stevens, Breyer, Ginsberg and Sotomayor will issue an opinion that sounds like that of a group of strict constructionist conservatives, saying that the courts came loose from their moorings in inventing this 'clear and convincing' standard, one that has little precedent in civil litigation. The conservative justices -- Kennedy, Scalia, Thomas and Alito -- will speak of the deference normally given to administrative agencies like the PTO, and will resist the urge, normally compelling, to take a swipe at the Federal Circuit, which they have heretofore treated as their own personal piñata. Roberts has recused himself. So the result will be a 4-4 deadlock that keeps the status quo."

So come June, when we can expect the Supreme Court to make its judgment, I, and the others, believe we'll see Microsoft lose and the burden of proof on patent violation defendants to be as difficult as ever. The Supreme Court had a shot to kill the current software patent law mess in the Bilski case, but they punted it. Microsoft vs. i4i is not going to be the case to reform the patent law system.

That's a shame because, as Updegrove explains, "At the end of the day, what we really need is patent reform at every level--through Congress, by tightening the laws and better funding the PTO, and by good decisions in court. No matter what the burden of proof is, it still costs both sides millions of dollars to fight it out in court, and that's a pure waste of time and money, and introduces uncertainty in the businesses of both sides. Until true reform happens, even those that strongly support the patentability of software might well wonder whether software patents do more harm than good."

Amen.

Related Stories:

Supreme Court quizzes Microsoft lawyers in i4i patent case

Apple sues Samsung over Galaxy line: Co-opetition implodes

Priceline founder files patent suits aimed at Apple, Google, Microsoft, more

RIM's bid for Nortel patents is more than a Google block

Nortel patents: Will Google share the protection?

Topics: Microsoft, Legal

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  • Message has been deleted.

    Will Farrell
    • Message has been deleted.

      jacarter3
      • Message has been deleted.

        bobpeg
    • Message has been deleted.

      CommonOddity
      • Message has been deleted.

        Michael Alan Goff
      • RE: Microsoft Patent Case in the Supreme Court's Hands

        @goff256
        Speaking of this article specifically, all its saying is that Microsoft is being a hypocrite in trying to patent things like smilies on one hand and then arguing far more legitimate patents should be invalid. Let's not forget more than anyone, it's MS and IBM that takes advantage of our broken system to patent anything it can. Considering the US government has also gone on to say MS should lose, this article saying the same could hardly be considered bias.
        anono
    • Message has been deleted.

      914four
  • RE: Microsoft Patent Case in the Supreme Court's Hands

    Steven, Great article.

    Hooah!
    daikon
  • RE: Microsoft Patent Case in the Supreme Court's Hands

    Microsoft needs to win this or dozens of other companies are going to suffer as well. This isn't about just Microsoft, this is about document formats in general.
    Loverock Davidson
    • RE: Microsoft Patent Case in the Supreme Court's Hands

      @Loverock Davidson

      lawl - By far, you are my favorite troll. Yes... You're right. MS should win this.

      2k7 doesn't open 2k3 documents while retaining the format the way it should, but OpenOffice/LibreOffice does? Hmm. Their own format. Yes. I see. So this fight will improve their backwards compatibility, oui?

      I would hope so.
      CommonOddity
      • RE: Microsoft Patent Case in the Supreme Court's Hands

        @CommonOddity

        i dont know about you but i can in office 2010 and office 2k7
        i can both save in the .doc format and open them with the same format as for oO and Libre can they open .docx i thought so...
        Viper589
      • RE: Microsoft Patent Case in the Supreme Court's Hands

        @CommonOddity
        lawl I haven't had any issues with Microsoft Office 2003 to Office 2007. In fact the whole company hasn't either. People still use open/libre office? that's something to lawl about.
        Loverock Davidson
      • RE: Microsoft Patent Case in the Supreme Court's Hands

        @Loverock Davidson

        Hah. You're really blinded by zealotry. I do not say I am without bias myself, but at least I'm not a complete tool and call a spade, a spade. Yes, Libreoffice is not quite as mature as it should be. Yes, opening .docx in it is -usually- a nightmare unless it is pure text. But no, 2k7/2k10 has some proper shitty backwards support brah. You must have either had some super basic document formatting or you're talking out your ass.

        I've used MS products for about 16 years. I've seen just about every version of Office. Office usually has good backwards compatibility between versions. 2k7 does not.

        Try doing parallel charts with line breaks/page breaks, in 2k3, open that up in 2k7. Yeah...
        CommonOddity
      • RE: Microsoft Patent Case in the Supreme Court's Hands

        @CommonOddity
        I'm not your brah, brah. Like I said, no issues with Office 2003 or 2007 here.
        Loverock Davidson
      • RE: Microsoft Patent Case in the Supreme Court's Hands

        @Loverock
        He didn't say he has a problem with Office 2003 or Office 2007, but with backward compatibility. Personally can't verify either ways since I haven't switched between the two for something that needs formatting.
        anono
    • RE: Microsoft Patent Case in the Supreme Court's Hands

      @Loverock Davidson It would be better if MSFT were to win this--and how often do I say something like that!--but I don't see them as having a shot in this one.

      We've got years more of patent misery ahead.

      Steven
      sjvn@...
  • RE: Microsoft Patent Case in the Supreme Court's Hands

    The transcript I read had questions from Justice Kagan. Which side does Mr Carey think she'll be on?
    delerious
  • RE: Microsoft Patent Case in the Supreme Court's Hands

    [i]But, ?In all likelihood, Stevens, Breyer, Ginsberg and Sotomayor will issue an opinion ... The conservative justices ? Kennedy, Scalia, Thomas and Alito...[/i]

    Stevens? He's been retired for a year and replaced by Kagan. How old is that quote?





    :)
    none none
    • RE: Microsoft Patent Case in the Supreme Court's Hands

      @none none Brand new, but everyone makes mistakes. He meant Kagan. A friend of my wife, then the head of a major Miami law firm, once addressed the Chief Justice in a hearing by the wrong name. Now that, that, was a mistake.

      Steven
      sjvn@...
  • All Bad

    Basically the whole idea of software patents is flawed lets follow New Zealand's lead and ban software patents!!
    wizardb@...