Microsoft has won support from, well, practically everybody in a bid to persuade the US Supreme Court to make it easier to invalidate patents.
As things stand, an organisation trying to prove a patent invalid has to provide to the Patent and Trademark Office (PTO) ‘clear and convincing’ evidence. Microsoft wants to get this changed so that it only has to provide ‘a preponderance’ of evidence.
Its petition was triggered by its failure to defend a lawsuit from i4i last year over patented technology in Word. i4i claimed its patent covered editing documents containing markup languages like XML.
But although Microsoft argued that it had been using the technology for a year before the patent was filed, it still lost, costing it $290 million.
For once, Microsoft has industry campaign groups on its side. The Electronic Frontier Foundation and Public Knowledge have piled in with an amicus brief, along with the Computer & Communications Industry Association and the Apache Software Foundation.
The brief argues that the law as it stands places an unfair burden on defendants, and threatens to impede innovation and the dissemination of knowledge.
A further eight supporting briefs hit the judges’ desks yesterday, one from a group of professors.
“The initial process of patent review today is, unavoidably, often an inaccurate signal,” say the profs. “Put bluntly, PTO review is not always reliable, and is unlikely to become so.”
“Juries take the presumption of validity very seriously and are extremely reluctant to second-guess the PTO’s determination,” says the Google gang in its filing. “The clear-and-convincing-evidence standard serves only to tilt the playing field even further in favor of patent holders.”