The Electronic Frontier Foundation, the Apache Software Foundation, and the Computer & Communications Industry Association filed an amicus brief in support of Microsoft today, asking the U.S. Supreme Court for a ruling that would have a major impact on patent litigation.

The EFF brief, filed alongside 10 others - including ones from Facebook, Intel, and Apple - stems from the $290 million patent infringement judgement against Microsoft. In 2009, a district court found Microsoft guilty of infringing on the patents of the Canadian software company i4i. i4i holds a patent for building a method of processing custom XML, a method i4i claimed - and the courts agreed - that Microsoft violated with its 2003 and subsequent versions of Word.

While Microsoft has failed to win its case so far via the appeal system, it filed a certiorari petition - a request for judicial review - with the Supreme Court in August asking the high court to review the standards for determining a patent's validity. This revision would benefit defendants in infringement cases.

Different Standards for Patent Plaintiffs and Defendants

Currently, in order to invalidate a patent, "clear and convincing" evidence is required. Microsoft argues in its petition that there is no need to have a standard that high. Rather, defendants should be able to challenge patents with the less onerous "preponderance of the evidence" standard. In other words, writes EFF, "'Clear and convincing' means that the facts are 'highly probable,' which is a much more difficult standard to meet when trying to invalidate a patent than just a preponderance."

That's the same standard that is required for a patent-holding plaintiff to prove that a defendant has infringed on a patent, and Microsoft argues that by making both parties adhere to the lower standard, it levels the litigation playing field.

The Impact of Patents - and Trolls - on the Tech World

Law.com cites John Thorne, deputy general counsel at Verizon, who submitted a brief alongside Google, as saying that "For the whole high-tech community, this issue of bad patents being asserted by trolls is a huge issue. More patents are issuing, products are getting more complicated, and lawsuits are increasing."

EFF argues in its brief that the requirement that an accused infringer prove patent invalidity by "clear and convincing" evidence unfairly burdens patent defendants, particularly those in the free and open-source software community.

The Supreme Court rarely hears these sorts of petitions, and earlier this summer "punted" when its decision in the Bilski case failed to address some of the core problems surrounding software patents, something that as the companies and organizations supporting Microsoft today contend, dampens innovation.


Photo credits: Flickr user Brian Turner