Long-running case against Canada's i4i which led to halt on sales of Word and Office comes to highest American court for decision on Monday afternoon
A software patent case in which Microsoft was accused of wilfully infringing a patent on XML - and forced to suspend sales of Word and Office - reaches the US Supreme Court on Monday afternoon UK time and could have a wide-ranging effect on future litigation.
Microsoft has brought the case to the US Supreme Court, where it is asking the court to lower the standard of proof required for challenges to the validity of a properly issued patent. At present, the company looking to overturn a patent has to be able to show "clear and convincing" evidence; Microsoft wants to shift that in favour of the overturning complainant, to a "preponderance" of evidence.
If Microsoft wins, it could weaken the use of software patents in a number of cases. Loudon Owen, the chairman of i4i, says it is "patent law at a crossroads" and that "the implications affect every consumer in every business at every level".
Microsoft contends that it is too hard to overturn a software patent granted in error by the US Patent Office. "Innovation is one of the great drivers, one of the bright spots of our economy," said Andy Culbert, associate general counsel for Microsoft. "If you have a really bad patent that shouldn't have been issued, what happens? It stops innovation."
i4i however says that weakening the standard of proof to overturn patents would deter companies and inventors from being innovative. Presently, about half of patent lawsuits end with the patent being ruled invalid. If Microsoft (which itself owns a large number of patents, including software patents) prevails, that proportion will rise.
At i4i, Owen argues: "What it really means for consumers is there's going to be a lot less investment in pharmaceuticals, in biotechnology, in green tech ? because without patents, there is no certainty and the system won't function."
Speaking to the Seattle PI blog, Henry Sneath, a Pittsburgh-based patent lawyer, wondered why and when Microsoft had become so keen on the "preponderance" rather than the "clear and convincing" standard for proof:
"I've never heard of any great cry for changing the standard and I don't remember anything written about it," said Sneath, who spoke as an officer of DRI, the nation's largest organization of civil litigation lawyers. "So you have to wonder why it's suddenly a big deal. Now that Microsoft has made a stink about it? It's almost like they manufactured the issue."
The dispute between Microsoft and i4i is a long-running one. i4i is a Canadian software company which told the Guardian in 2010 that its aim is to become "the [database company] Oracle of unstructured data", and rebuffed claims that it was engaged in "patent trolling" - enforcing patents that it happens to hold but doesn't otherwise use - in suing Microsoft.
In March 2007, i4i sued Microsoft for willful infringement of its patent on the use of XML (Extensible Markup Language, a superset of markup languages such as the Web's HTML) in Word for custom applications. That led to a ban on the sale in the US of Word 2003, the version of Microsoft's program judged to be directly infringing. (Later versions did not.)
The key element of the i4i XML product is that it takes large amounts of unstructured data, and then wraps it in XML to make it more usable and useful. Among its users are the US Patent Office, US Air Force and number of pharmaceutical companies, including Bayer and Novo Nordisk.
i4i accused Microsoft of "wilfully" infringing the patent, after the two companies had had talks in 2000-2001 about XML and custom XML. ""We had extensive dealings with Microsoft over the course of several years about the possibility of working together," Owen told me in January 2010. Soon after, Microsoft began talking about XML schemas in forthcoming versions of Word, which then shipped in Word 2003 - adversely affecting i4i's business, the company said.
On 20 May 2009, a jury found i4i's patent to have been willfully infringed, and Microsoft was instructed to pay damages to i4i. On 11 August 2009, a final judgment against Microsoft was issued that included an award of more than $290m of damages to i4i (including enhanced damages, interest and post-verdict damages), and a permanent injunction, which took effect on January 11, 2010.
Microsoft unsuccessfully appealed to the Federal Circuit Court of Appeals in late 2009, and also unsuccessfully sought a rehearing in early 2010. This was the largest patent infringement judgment ever upheld by the Federal Circuit.
The chief justice of the US Supreme Court has withdrawn from the case, which will be heard only by eight judges, meaning that Microsoft has to get 5 of the 8 to back its case, rather than 5 of 9.
A total of 24 amicus briefs - supporting the position - have been filed for i4i, including one by the US government.
Source: http://www.guardian.co.uk/technology/blog/2011/apr/18/microsoft-i4i-software-patent-us-supreme-court
No comments:
Post a Comment