If the Imperium loses the case it could be a dark day for the Open Sauce movement as it would mean that it would be too easy for patent trolls to knock out products.
Last year i4i won support for its charge that Microsoft was infringing a patent i4i holds on custom XML capabilities. Microsoft subsequently lost its appeal of that decision and was ordered to pay i4i more than $290 million, as well as to remove the capabilities in question from Word 2007.
The Supreme Court agreed to hear Microsoft’s new appeal following the submission supporting briefs from the likes of Google, the Electronic Frontier Foundation (EFF), the Apache Software Foundation, and other Open Sauce groups.
The case itself is not so important,after all the Imperium can just write a cheque, but it does focus on a problem about how far a party needs to go to invalidate a patent.
EFF fellow Michael Barclay explained in his bog that in most civil cases is simply a “preponderance of the evidence” suggesting that the facts are mostly likely true.
But when it comes to patents, however, a more stringent standard has been used, requiring that the defendant present “clear and convincing” evidence instead.
This is unfair especially in the free and open source software context because it makes it hard to challenge bad patents.
The Supremes are expected to rule in the case in the first half of next year. However it is a strange day in the Universe when the future of the Open Sauce movement depends on Microsoft winning a case.