Supreme Court rules against Microsoft in major patent case
techflash.com
techflash.com
U.S. solicitor general, which represents the federal government, filed a brief in support of i4i, saying that the U.S. Patent and Trademark Office should not be second-guessed by a jury.
The Patent and Trademark Office absolutely should be second-guessed by a jury. Judges and juries are the only sanity-check the whole system has at this point!
Not at the moment, no. As I understand it, patents in the US are judged from the time of approval, not the time of filing, so the length of the approval process doesn't affect the amount of time a patent is in effect.
This makes sense. Otherwise, a competitor could tie any disagreeable patent up in litigation, ensuring that the patent would be in effect for only a very short period of time.
Patents are more about digging some holes in the forest and covering them up, after which you go home and cross your fingers that someone steps into one of them in the future.
From the point of view of other companies these are hidden traps that could be anywhere. You're just doing business as usual, solving problems, and bam, you're told that you weren't allowed to think of obvious idea X because someone has a patent, pay up $10 million dollars. (Actual dollar amount varies widely.)
The really evil ones patent stuff, get their patented ideas into standards, wait until everyone is following the standard, then start filing lawsuits. Past bad experiences with this are why standards organizations usually require that participants license any relevant patents that are needed to implement the standards.
Supposedly harder to pull off these days, but still happens.
Any examples of the evil strategy, as in patented stuff getting into standards?
And that's not counting the torturous legal fees, if you wish to try your luck at court in a case that is likely to drag on for eons.
1. It could have been worse -- as correctly pointed out by carussell, the Supreme Court decision merely validates the the way courts have been deciding cases for the past 25-plus years;
2. The Supreme Court's opinion [1] urges judges to give specific instructions to the jury that it is allowed to take into account the fact that prior art introduced at trial was not considered by the patent examiner. That will be useful for defense counsel -- you can never know whether a given judge will agree to give such an instruction, so it'll be quite helpful to be able to refer the judge to a Supreme Court "suggestion" on that point;
3. The concurring opinion of Breyer, joined by Scalia and Alito, emphasizes that the clear-and-convincing standard applies only to proof of facts and has nothing to do with the ultimate legal question of validity. That, too, will be useful in trying to get the trial judge to give the jury a specific instruction on that point.
The case actually has to do with a feature called "custom XML" which was introduced in Office 2003 (I think?) and basically allows databinding between Office docs and XML files with some custom schema. You have some data represented in XML, and it shows up in a Word doc presented in a certain way. Then you can edit the Word doc through the Word interface, and the data in the XML will match your changes. So the idea is to let you use Office as an editor for structured data. I dunno how well it worked in practice.
The actual patent claim was over some detail of how the databinding relationship was represented in the file format. This has nothing to do with the XML formats introduced in Office 2007 (.docx etc.)
If you can invest in a patent troll -- now is a good time.
I was rather pointing out that patent trolls also win with this verdict. Software patents are stronger, and are harder to overthrow in court, even if you have, for example, prior art.
My point wasn't to say anything about the specifics of this case, which are complicated, but rather that an unintended side effect is that it does help patent trolls.
Don't get me wrong, it's the least favorable of the two, but it doesn't make things worse; it just doesn't make things better.
Absolutely correct. Man, I wrote a bad comment. :-)
When I said it makes it stronger, I meant against the alternate universe where MS wins the case. Your statement is much clearer.
The Court said that it will maintain the CCE standard for invalidity defenses, not plaintiffs' claims of invalidity. It's a fine point, but important one neverhtless.
You see, CCE has been the standard for plaintiffs alleging patent invalidity since 1982. It's right in the statute. http://openjurist.org/title-35/us-code/section-282/presumpti... . The problem was that Microsoft was trying to reduce the burden of proof for the defense.
A weaker burden for defenses is very very bad. That means, even if a plaintiff shows, by substantial evidence, that a patent is invalid, a defendant can just give the minimal amount of defense...and the defendant will win.
So, this improves things...a tiny, weeny bit.
Seems like our only hope is if somebody powerful and famous, with a big software patent portfolio, can sacrifice it for the good of the industry and advocate for banning software patents. Steve Jobs and his position against DRM in music comes to mind as a similar move. Wouldn't it be great if leaders of the industry get together and petition/lobby for this change? One can only dream...
struct twiggle { int t; }
somehow makes patenting the code that uses it a sensible idea?
Now, the differences. The idea of storing markup and data in separate containers, at least one of which is XML-based is not something anyone with knowledge of XML can not think of. Let me re-read the patent in question. Yep, I got it right. While I can't turn off my hindsight, I can't also think that CSS doesn't fit into this, as well as many other technologies. BTW, i4i, in case you're reading, I didn't give you this idea and you can't use it, at least because CSS is at least 2 years older than issuing date of patent 5787449. Which reminds me of the prior art arguments, but I digress.
All that is neither here-nor there. You say it's not obvious -- I say it is. What really matters is the goal of the exercise. Patents were created when inventions were _hard_. Coming up with the idea of pumping air out of the glass tube with wolfram wire in it required lots of costly tests, trials and errors. Do you know how many stores stocked wolfram back then? Patents were created to _encourage_ innovation on the assumption that not too many people can afford innovating in the same field at the same time. Fast forward to today. Coming up with software patents today requires a whiteboard, a Word document and a phone to call a lawyer. I know, I have a few of those (equally embarrassingly obvious, I must add). Does it protect me and my invention _today_? Nope, since I can't afford to sue somebody even if I can prove beyond a reasonable doubt that the patent has been infringed on. Big companies plow over individual investors with their army of lawyers. The opposite, however, is not true (the in-app purchasing patent story is the point in case).
Another aspect of patent situation today is the shier vastness of the field. Who can afford doing patent searches for literally every line of code before it is written? So we all are forced to live on the minefield. This serves as an argument against innovation by individuals. And that brings results which are directly opposite to the original goals of the patent system. Which is not a good thing.
http://online.wsj.com/article/SB1000142405274870346610457552... (search for "patent fee")
I am extremely satisfied with the ruling in this respect. Companies that use silly patents deserve to have silly patents used against them.
I agree it could have consequences. But that's a different (and possibly more important) discussion.
G'Kar is, by far, my favorite TV sci-fi character and the fact that Mollari was able to stand his own in such a huge shadow is a testament to Mr Jurasik.
"Smaller companies that held patents worried that if Microsoft prevailed, it could lower the standard of proof for invalidating a patent, crippling small companies that depend on patent protection, legal experts say."
Other than patent trolls, which small (software) company benefits from (software) patents?
If you look at the holding, the Court just says that all invalidity defenses must be established by "clear and convincing evidence" (higher than preponderance of evidence but lower than beyond a reasonable doubt.)
It has been well-established that patent validity is a basic assumption. So, a plaintiff must prove patent invalidity by clear and convincing evidence. The issue here is once the plaintiff establishes patent invalidity, how much evidence does the defendant need to give to rebut the assumption of invalidity. The Court said that the higher standard of proof, not the lower standard of proof.
Maybe I'm being thickheaded here, but I don't see how that's terrible at all. In fact, it makes things equal. Once the plaintiff shows patent invalidity, it shouldn't be that easy for a defendant to rebut the assumption of invalidity.
And now that you have a patent and sue somebody, this other person may be able to put together some evidence that shows the patent is invalid, but they must climb a very high bar now.
In this case MS had prior art in a past i4i product that appeared to have the functionality that i4i had patented. i4i says it was different, but the source code had been destroyed. Had this challenge been brought up during the original patent examination, they could have pressed i4i to prove that this didn't infringe. But once i4i has the patent now MS must prove that it does, w/o the source code.
So, this case just makes things equal between the plaintiffs and defendants. Once the plaintiffs do overcome the admittedly-high obstacle of proving invalidity, the defendant can't just put up a weak defense and get away with it. That's good!
Your problem with the patent system is completely valid, but the Supreme Court can't change law (or is not supposed to). Congress is the one who is responsible for this quagmire, not the Court.
The whole patent system is broken, and this case improves things by a nanogram (is that a word?)./
Time to petition congress. It does feel like we're near an inflection point.
I just think that Congress needs to be reeducated about the different needs of today's technology industry versus the old-days of steel mills. It won't be easy, but I'm confident it will happen someday.
The question is whether I'll be alive then (heh).
Reading the Court opinion, it seems like they aren't examining the whole case, but only one particular question of law raised by the case. There's nothing written in the opinion examining whether the patent itself is statutory, novel, and nonobvious; only Microsoft's objection to its validity is mentioned.
Can any law gurus explain how this certiorari thing works?
I'm not an issues and appeals lawyer, but here's what I know about appeals. Appeals are only for questions of law, never for questions of facts. And the question of law must be unsettled (otherwise, why would SCOTUS take the case?) SCOTUS probably took this case to clarify the defendant's burden of proof regarding invalidity defenses.
Now, this particular case was about the standard of proof for invalidity defenses (and jury instructions). The trial court told the jury that MS had to defend against invalidity claim by clear and convincing evidence. Microsoft thought that was the wrong standard. SCOTUS said that the lower court was right.
So, since the lower courts applied the right standard, this is the end of the line. The verdict against MS will stand.
tl;dr: appeals (cetorari_ to SCOTUS) focuses on unsolved or ambiguous questions of law, not factual issues. (Mixed questions of fact and law is a whole 'nother story...you don't want to know).
P.S. Law school qualifies as guru for any questions I'm likely to ask.
Why not? Well, for better or worse, the American judicial system puts a lot of weight on trial courts and juries' ability to assess facts. The appeals system was set up in such a way to prevent higher courts from actually deciding the case. If SCTOUS had found that the lower courts applied the wrong rule of evidence (burden of proof here), then the case would have gone back to trial and retried (isn't that crazy?).
And trust me, law school doesn't quality everyone as a guru. I have some experience with appeals, but I'm far from an issue & appeals lawyer (they're pros at this). So, take my words with a grain of salt.