During the April 18 arguments, Microsoft's legal counsel insisted that the current standard of proof for invalidating patents is too high, making it difficult for companies to repulse frivolous patent-infringement suits. "When the Patent Office didn't even consider the evidence, it makes absolutely no sense," Microsoft attorney Thomas Hungar told the court, according to an April 18 Bloomberg report.
If Microsoft triumphs, it could establish a precedent that makes it easier for big companies to knock down weak intellectual-property lawsuits. That would help slam the brakes on "patent trolling," an annoyance for many large tech companies. Those companies filing briefs in support of Microsoft range from Google to Cisco Systems.
But i4i is arguing that existing patent law is necessary for innovation.
"It is abundantly clear that the fundamental change in the law, which Microsoft seeks, would result in an enormous decrease in innovation," i4i Chairman Loudon Owen wrote in an April 18 statement. "Microsoft did not present either policy or legal reasons that would justify any changes to the law, particularly the sweeping change they now apparently seek."
So if i4i wins, it could potentially help smaller companies fight larger aggressors in open court. Those filing briefs in support of i4i include 3M, General Electric and Genentech.
"The bottom line: Tech vendors attacked by patent trolls are only asking for payback by reducing the standards in patent law," Ray Wang, principal analyst of Constellation Research, wrote to me in an April 19 email. "If Microsoft wins, it's a check and balance against patent trolls. If i4i wins, innovators who feel their rights have been trampled by large evil tech vendors will have protected their rights."
Microsoft's battle with i4i goes back to August 2009, when the federal judge in the U.S. District Court in Eastern Texas ordered that all copies of Word 2003 and 2007 be removed from retail channels within 90 days, after i4i argued that the word-processing software violated its key patents for custom XML. Microsoft's attorneys managed to impose a delay, only to have the U.S. Court of Appeals uphold the verdict four months later.
Microsoft also found itself hit with a nearly $300 million judgment, which if upheld could sting the company's bottom line a wee bit.
That upheld verdict came with the court order that all offending copies of Word be yanked from store shelves by early January 2010. Microsoft refused to give in, issuing a patch for Word it claimed would sidestep the alleged infringement, and asking for a review by all 11 judges on the U.S. Court of Appeals for the Federal Circuit.
That effort failed, and Microsoft appealed to the Supreme Court, which agreed to hear the case. A decision should come by late June.
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