updated 04:55 pm EDT, Fri April 15, 2011
Supreme Court hearing tech patent validity case
The US Supreme Court at a session on Monday will hear Microsoft call to change patent law in a way that could help both the Windows developer and many other technology firms fend off patent troll lawsuits. The motion will attempt to change a rule that requires a defending company provide absolute, definitive evidence that a patent is invalid in order to avoid a guilty verdict. Under Microsoft's proposal, courts could invalidate patents only by requiring that the majority of evidence supports rejecting the patent.
Microsoft's counsel argued that the current system was too far biased towards preserving patents. A defendant more often couldn't challenge a patent as all the burden of proof was on itself. "The litigation process plays a critical role in weeding out invalid patents, and it cannot properly fulfill this role if the scales are tipped sharply in favor of upholding patents," the company said in its brief for the court.
The move is partly a self-interested one for Microsoft, which is hoping to use the change as a way of escaping its loss to i4i in a patent lawsuit over XML in Word. Microsoft had been found violating i4i's patenting and unsuccessfully challenged the verdict in front of the Supreme Court.
It nonetheless has the support of some of the largest companies in the industry, including those it normally considers rivals. Apple, Cisco, eBay, Facebook, Google, Intel, and Verizon are among the 17 supporting its view.
Opponents have mostly included 3M and pharmaceutical companies that are worried their patents, on which they base most of their business, will be overturned. The Pharmaceutical Research and Manufacturers of America group argued the incentive to develop new drugs would be "substantially reduced."
Even so, the challenge if successful could greatly curb the instances of patent trolling, or lawsuits demanding royalties from companies that depend primarily or exclusively on wielding patents they aren't using in a product of their own. i4i isn't one of these companies as it had been offering a product attached to the patent, but a rash of lawsuits have surfaced over the years from companies gambling that the fear of losing a lawsuit will lead companies to reach a cash settlement instead.
The ruling could ultimately prove a setback for Microsoft itself. It has made a point of either suing or threatening to sue companies that use Android but don't use Windows Phone, such as Motorola and Barnes & Noble, under the belief that it's owed royalties on every Android device ever made. As with its pressure on companies using Linux, the patents hadn't been significantly challenged in court until Motorola stepped in, in part because many of the companies faced the same high hurdle of evidence that Microsoft faced in the i4i case.