EFF and others seek to rebalance patent trials
The EFF, Public Knowledge, the CCIA (Computer and Communications Industry Association) and the Apache Software Foundation have filed an amicus brief supporting Microsoft and asking the US Supreme Court to hear a Microsoft patent case.
If Microsoft is successful in the case, it could signal a change that would make it far easier for companies to defend patent infringement cases on the basis of prior art which had not been looked at by the patent examiner when the patent was granted. This would be a change that the EFF says "should especially help the free and open source community".
The case in question is Microsoft vs i4i Ltd which focuses on patents related to editing documents containing mark-up languages like XML. i4i won the case in the Federal courts, but Microsoft is appealing on the basis that the standard of proof required to invalidate a patent is far higher than that required by a court to rule infringement has taken place. For a court to rule that a patent is invalid currently requires "clear and convincing" evidence; to show infringement requires only the more common civil court standard of a "preponderance of evidence". The EFF say they believe that this requirement "unfairly burdens patent defendants, especially in the free and open source software context".
This is not the only amicus brief that has been filed with the Supreme Court. A report in the Seattle PI lists amicus briefs from Google, Verizon, Dell, HP and HTC, Facebook, Intuit, Netflix, NewEgg and Toyota, Intel, Yahoo, Apple, the CTIA and the Securities Industry and Financial Markets Association, which all argue the "clear and convincing" standard is too high. In Apple's brief, for example, it notes cases where the court has ruled that infringement has taken place after prior art was said not to meet the standard, but later, the US Patents and Trademarks Office (USPTO) has invalidated the patents in question using the prior art presented during the case.
Although it would give less protection to holders of legitimate patents, it is suggested that a balancing of the evidence requirements would reduce the number of frivolous patent lawsuits filed and allow prior art to be used as a defence in court, rather than only as the basis for a later USPTO re-examination.