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Microsoft Government Patents Software

Supreme Court To Hear Microsoft-i4i Case Monday 105

Posted by timothy from the regulators-like-being-regulators dept.
CWmike writes "Patent attorneys and inventors of all types are closely watching a Microsoft case that the US Supreme Court will start to consider on Monday. The case, which centers on a technology patent assigned to i4i that almost forced Microsoft to stop selling its flagship Word software, could have broad implications in the way patents are awarded and upheld, experts said. Currently, when a patent holder accuses someone of infringing a patent, the burden is on the infringer to prove with 'clear and convincing evidence' that the patent is invalid. In hearing this case, the Supreme Court could decide to lower that standard of proof, she said."
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Supreme Court To Hear Microsoft-i4i Case Monday More

Supreme Court To Hear Microsoft-i4i Case Monday

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  • They're all invalid. Every last one should have to go through it again... and again.. until they get it right.

    • Not necessily. If the process were truly "corrupted," whatever that means, you might take away the presumption of validity for the corrupt patents, but it would be silly to revoke them all--the delays in future prosecution it would cause, not to mention the problems of re-prosecuting hundreds of thousands of patents for inventions made years ago by inventors who work at different companies...

  • Too big to fail doctrine (Score:4, Interesting)

    by Compaqt ( 1758360 ) on Saturday April 16, 2011 @09:38AM (#35839306) Homepage

    > Currently, when a patent holder accuses someone of infringing a patent, the burden is on the infringer to prove with 'clear and convincing evidence' that the patent is invalid. In hearing this case, the Supreme Court could decide to lower that standard of proof, she said."

    AKA, the court usually finds a way to shoehorn something that's highly important to the status quo into some or another legal theory.

    • It's not about status quo, it's about the court finding a way to do what the court wants. Sometimes the court wants the status quo, sometimes they don't.

      In this case, the mechanism used was this: Microsoft found new evidence (that the patent was invalid) that wasn't previously considered by the patent office. Since the court recognizes the authority of the patent office (rightly or wrongly), it requires you to work harder to prove that they made a mistake. In cases where there is new evidence, the court

      • Re:Too big to fail doctrine (Score:4, Interesting)

        by mabhatter654 ( 561290 ) on Saturday April 16, 2011 @05:34PM (#35843060)

        To be blunt, I don't even know why this got to the Supreme Court. There's little "constitutional" merit to the case. Microsoft is used to companies they can buy our bully.. in this case i4i sold the product TO the patent office so the patent office was in a unique position to know much more about the invention than other ones. Previously, the Supreme Court has said that the Patent Office has the final say... lower Appeals courts have backed that up. This is consistent with the prior ruling on Copyright (from the same clause in the Constitution) that Congress is the one that sets those rules. If you don't like them, talk to Congress.

        Back on the topic of Microsoft, they find themselves in the spot that Microsoft has NOTHING these guys want other than to watch Microsoft STOP SELLING something. So for all the games Microsoft plays, they've found themselves at the wrong end of the stick they've enjoyed berating "piracy" for decades. The courts are getting loath to keep allowing endless appeals in these patent cases... many of the lower courts and even other Supreme Court cases point to a trend that the courts want to wash their hands and tell folks to get Congress to fix the rules... also, Bush put into place a lot of "unitary executive" believers, and the Patent Office is an "Executive" department... so the current court is leaning highly toward "em's the Apples" and that's the Law as it stands.

        • > Previously, the Supreme Court has said that the Patent Office has the final say...

          What? When, and on what? What can't you appeal from the patent office, except for a few minor procedural issues?

          • the courts are getting tired of enforcing sloppy patents... it's not really their problem. Patent law is addressed by Congress and the President... they have chosen to grant as many as possible for political reasons and to use the patent office as a piggy bank for extra spending money. In other cases mentioned on slashdot the courts are getting ready to simply to throw the whole mess back at Congress and tell all these companies to go use their Lobby money for something useful!! Otherwise, Patents are The

            • Not really, no. I can see where you might think that based on a few slashdot articles, though.

              The courts are responsible for adjudicating disputes. If someone asks them to enforce a patent, that is definitely their problem.

              Patent disputes are only a small part of the work load of most District Courts. The Federal Circuit, on the other hand, handles lots of patent cases. They are in some ways the most rule-bound Circuit Court of Appeals in the country. They like patent cases. They dislike bad practice

      • it is clear the patent system needs an overhaul.

        FTA: Congress is currently working on legislation that would allow new ways to challenge patents, he noted.

        FTA: "Congress is on the job," he said.

        We can all sleep easier tonight knowing that a bunch of incorruptible techies is on the case.

    • Probably not a big deal, and here's why:

      Juries have a strong preference for senior users, so when you bring an infringement suit, you demand a jury trial.

      Juries make gestalt decisions - seriously, can you explain what the difference between "clear and convincing" and "preponderance of the evidence?" Technically, clear and convincing may be higher, but can you think of a situation in a jury room where the jury deliberates and decides - you know what, I really feel like the preponderance of the evidence was o

      • You make an excellent point that juries won't care about the distinction between "preponderance" and "convincing," and you're right, they wouldn't.

        Unfortunately, the power of the jury has been under attack for some time. Have you done jury duty lately? The juror's oath used to be that you would apply the law without prejudice and in good conscience. Today the oath has been changed to include "following the judge's instruction."

        There are no boundary limits put on the judge's instruction.

        We used to have hung

        • Juries today are well on their way to becoming very little more than rubber stamps for the judge's decision.

          Is that a bad thing in cases like this, though? How is justice served by turning over complex patent cases to 12 epsilon-minuses who weren't smart enough to get out of jury duty?

          • Re: (Score:2)

            by gmhowell ( 26755 )

            So you want to turn it over to a single judge who couldn't even cut it in private practice?

            • In a patent case, yep.

              Snowing hayseed jurors, specifically in Eastern Texas, is a time-honored practice of patent plaintiffs.

              • well, the E.D. Tex. is chosen by plaintiffs least as much for the speed at which litigation is resolved (which is nominally a good thing and a function of judges) as for the jury pool. Additionally while E.D. Tex. has very knowledgeable judges on patent issues, if you are a senior user it is very open to debate whether you want E.D. Tex.'s particular variety of knowledgeable [wikipedia.org] judge [uscourts.gov].

          • Every judge I've ever met would agree with you. No judge thinks any twelve random people can come to a better decision than they can.

            The problem is that every single one of those judges is wrong, and juries were given power for exactly that reason. If juries can't be trusted to decide mere business issues, then they certainly shouldn't be trusted with matters of life and death. The awesome power of the jury was given to twelve random changing people because to do anything else would create a dangerous, inev

            • Re: (Score:2)

              by Gogo0 ( 877020 )
              Not certain where you work, but I believe there are laws against firing or making life unlivable if you are selected by jury duty. Somehow millions of people a year seem to do jury time and not come out the other end selling window washes at the stoplight.
              My previous employer paid me my regular salary during the time I was on jury duty. YMMV, but I would talk to a lawyer to be certain.

              I agree that some of the decisions that come out of high-profile jury trials are absolutely baffling, but we also have idiot

              • Re: (Score:2)

                by jeko ( 179919 )

                Go back and read the thread from the top again to find out where the "not smart enough" line got started.

              • Re: (Score:2)

                by jeko ( 179919 )

                Also, google "jury duty job loss" and get ready for a long read like this one:

                http://www.nytimes.com/2009/09/02/us/02jury.html [nytimes.com]
                Call to Jury Duty Strikes Fear of Financial Ruin

                Just because it's illegal to retaliate against employees doen't mean it doesn't happen, and several states do not require that employees get paid during that time. In fact, NO state requires that hourly workers get paid at all.

                You have been lucky. That does not mean everyone, or even the majority, are lucky as well.

      • Re: (Score:3)

        by Raenex ( 947668 )

        From what I can tell, "clear and convincing" means you have a damn good case, with something like 90% certainty, and "preponderance of the evidence" means you have greater than 50% certainty -- meaning just weight both sides equally and choose which one you believe has the better case.

        If those are the kind of instructions given to the jury, then I'd expect them to apply them, for the most part. I think if the Supreme Court changed the balance it would make a big difference.

        • More or less, although jury instructions don't usually use percentages, I think. Patents are entitled to a presumption of validity based on the office's examination, and that's very well-established law, but the question of preponderance v. clear and convincing is open for debate.

          • The whole point of this case is that patents aren't subjected to a presumption of validity. The law, as it currently stands, is that it is jurors job to decide whether the patent office was right or wrong in granting a patent by a preponderance of the evidence. If SCOTUS rules for microsoft, it may change that and give patents a presumption of validity.

            What I said in the GGGP is that this is really irrelevent, because while the law may say that jurors are to basically give no presumption to the patent offic

            • No. The law, as it currently stands, is that issued patents are presumed to be valid. Applications are not presumed to be valid, but issued patents are. The accused infringer may try to disprove patent validity; the burden is on them to disprove validity because the patent is presumed to be valid. The rule that there is a presumption cannot be overturned by a court, because it is written into the patent act. http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_282.htm [uspto.gov]

              The question is wheth

  • Now I don't fully understand this case, but if the "flagship" product word is in trouble, does it really matter? There are MUCH better office solutions out there and there free. Microsoft office is a great product if you want to waste money and get a bulky program. When I need an office program it's time for Open Office or Libre Office, both of which not only out perform Word but do a better job as a word processor.

    • ...both of which not only out perform Word but do a better job as a word processor.

      Anything beyond a spell checker is excessive bloat.

      • > Anything beyond a spell checker is excessive bloat.

        Have you ever tried to edit a document with multiple people? Wanted internal cross-references? Headers and Tables of Contents? Multiple sections with alternate pagination? There are lots of circumstances where you want something beyond a spell checker, and most people don't have the time or skill-set to use LaTeX all the time.

    • both of which not only out perform Word but do a better job as a word processor.

      How so? I mean I use Open Office and it's perfectly adequate for my needs, but it never struck me as being quite as good as Word. For one thing, OpenOffice 3 screwed up word counts, and tends to lag behind on features.
      • I tried very hard to adopt open office myself, being a believer and all. But still, I can get work done on MS office faster than on OO. I'm still keeping my fingers crossed for the day the tables turn. I give it a few more years.

    • Re: (Score:3, Funny)

      by r.stallman ( 2030484 )

      When I need an office program it's time for Open Office or Libre Office, both of which not only out perform Word but do a better job as a word processor.

      I'm not sure if you're being serious, but recently I used Office to complete my PhD thesis in physics and it was amazing. I wrote a quick VBA in Excel to directly interface to my cold fusion power output detectors (resistance lowered when immersed to indicate increased temperature) and rather than have to use complex formulae a wizard suggested the best one automatically! The charts looked super smooth and slick, not like Open Office where frankly the results looked quite random.

      But back onto word processor

      • I recently had to reformat a complex 100 page technical document in Word 2010 and within 4 hours I had a smooth navigable thing in place with drag and drop section rearrangement, automatic indexing, instantly update-able sub-tables-of-contents for each section, and a lot of other fun toys I managed to create because of field switches. I use OpenOffice at home, but I'm honestly not sure I could have pulled it off in such a manner on Writer that if we decide to add a section in a month, the entire thing can

      • Excellent post. Just remember the real plane actually runs out of fuel, and you will land..

      • Re: (Score:1)

        by Anonymous Coward

        Why is this modded down?
        Haven't seen something that much deserving of a +5 Funny than this post in a while.

      • Re: (Score:2)

        by fritsd ( 924429 )
        I don't think the modern readers get your joke--you forgot the <mild_sarcasm_warning> tags.
        I read it and I thought "he's doing a PhD thesis in physics and he chooses Office over LaTeX [wikipedia.org]... yeah right.." ;-)
        LaTeX! WYSIWYM [wikipedia.org]!
        end of advertisement.

      • Before modding the parent down (or up), look at the poster's name.

    • Sure but if any of these other word processers want to do custom xml editing, they are hit by this patent as well.

      As and example, companies in the UK are now required to file their accounts with HM Revenue and Customs in ixbrl format. Being able to enter the required xml tags to do this in word or one of its competitors could be very useful.

    • I can tell that you've never tried to make complex documents with OpenOffice. Certain types of formatting and such cannot even be done, such as proper sections, table of contents, table of authorities, etc. All lacking in OpenOffice.

      • Also lacking in MS office. You need latex to do that stuff well. Or if a GUI is requied, LyX....

  • So... (Score:4, Interesting)

    by bmo ( 77928 ) on Saturday April 16, 2011 @09:44AM (#35839356)

    If Microsoft wins this case, its purported 235 patents that Linux supposedly infringes upon (they have yet to list them after all these years because they are likely piss-weak) are further weakened?

    I'm all for it.

    Go Microsoft!

    --
    BMO

    • Re:So... (Score:5, Informative)

      by Grond ( 15515 ) on Saturday April 16, 2011 @10:38AM (#35839736) Homepage

      If Microsoft wins this case, its purported 235 patents that Linux supposedly infringes upon (they have yet to list them after all these years because they are likely piss-weak) are further weakened?

      Microsoft is a defendant in about 50 patent infringement suits at any given time. They are the target of far, far more patent infringement suits than they file. It's in their strategic interest to make it somewhat easier to invalidate patents.

      This case also demonstrates the lengths to which Microsoft is willing to go to defend an infringement case. There was a full jury trial, a reexamination at the Patent Office, a (denied) request for a second reexamination, an appeal of the injunction to the Federal Circuit, an appeal of the case itself to the Federal Circuit, and now this appeal to the Supreme Court. If the Supreme Court agrees with Microsoft, the case will go back to the trial court for a new trial, with, potentially, another round of appeals if Microsoft loses again.

      • Re:So... (Score:4, Insightful)

        by gnasher719 ( 869701 ) on Saturday April 16, 2011 @11:12AM (#35839952)

        This case also demonstrates the lengths to which Microsoft is willing to go to defend an infringement case. There was a full jury trial, a reexamination at the Patent Office, a (denied) request for a second reexamination, an appeal of the injunction to the Federal Circuit, an appeal of the case itself to the Federal Circuit, and now this appeal to the Supreme Court. If the Supreme Court agrees with Microsoft, the case will go back to the trial court for a new trial, with, potentially, another round of appeals if Microsoft loses again.

        If you have been fined $400 million or so, you can invest quite a few million into trying to reduce that number.

      • This also clearly demonstrates why the little guy can't ahead in this world. Large corporations with deep pockets will suck you dry and keep on infringing long after you have lost everything - even if you are right.

        Patents were designed for ideas that can be constructed and touched - aka inventions - not just ideas.

        Software patents should not be allowed. Period.

        • I disagree. Being able to look up the source code for word (as part of the patent application) would make writing the converters for open office much easier. If software was legally patentable instead of backdoor patentable like now then you'd need to include source code. Of course the length of software patents should be 5 years, with no extensions.

    • Re: (Score:1)

      by Anonymous Coward

      I disagree. This only applies to cases once th
      ey get to court. Open source will be worse off, since microsoft can continue to pass fud, and be protected once they get to court. Remember, court fees are not cheap, even if you win. This will be a proprietary win and an open source lose if scotus rules in microsoft's favor.

    • If Microsoft wins this case, its purported 235 patents that Linux supposedly infringes upon (they have yet to list them after all these years because they are likely piss-weak) are further weakened?

      I'm all for it.

      Go Microsoft!

      -- BMO

      Very sadly, you are wrong. Changing the laws only helps Microsoft, and companies their size, who engage (like Microsoft CONSTANTLY does - look it up (as someone else said in response, 50 such cases going on at any given moment)) in intellectual property theft. You see, what happens is they can now legally fight to invalidate patents of companies they've stolen from. And then comes the other edge of the sword... for instance, when it comes to stuff like the Linux patents, they can simply out $$$ those involv

  • Lowering of standards has been pretty common of late. I would expect them to do this.

  • Wrong way round, surely (Score:2, Interesting)

    by Smivs ( 1197859 )
    From the article (above) "when a patent holder accuses someone of infringing a patent, the burden is on the infringer to prove with 'clear and convincing evidence' that the patent is invalid". Surely the burden must be on the patent holder to prove that their patent has been infringed. What happened to 'Innocent until proven guilty'?

    • Re: (Score:1)

      by bmo ( 77928 )

      Learn the difference between a tort and a crime.

      --
      BMO

    • Re:Wrong way round, surely (Score:4, Informative)

      by Gadget_Guy ( 627405 ) * on Saturday April 16, 2011 @10:32AM (#35839692)

      From the article (above) "when a patent holder accuses someone of infringing a patent, the burden is on the infringer to prove with 'clear and convincing evidence' that the patent is invalid". Surely the burden must be on the patent holder to prove that their patent has been infringed.

      You are mixing up two separate arguments:

      1. The patent holder has to show that the patent was infringed. If they can't do this, then it is game over.
      2. If they can show infringement, then the defendant can argue that the patent should not exist in the first place due to being too obvious, or having prior art etc.

      Changing the rules for the second part does not affect the first part.

      • Exactly. In fact, by the time a patent case gets to court, there's generally very little question about whether infringement is occurring. Even when there is, the patent court has procedures to establish that one way or the other fairly quickly. Court time is almost always spent on issues like (1) Should the patent have been granted? (2) Did plaintiff do something underhanded to get a process for which it holds a patent adopted as a standard? (3) Is the particular application covered under the patent?

  • The computerworld article is terrible (Score:3, Interesting)

    by Anonymous Coward on Saturday April 16, 2011 @10:19AM (#35839606)

    I am a patent attorney. I write and prosecute patents. I don't do litigation. Nevertheless, I've been keeping an eye on the i4i case. The Computerworld article grossly oversimplifies the issues in this case. There are different types of prior art that can be used to invalidate a patent. The prior art at issue in the i4i case is not a printed publication or any type of publicly-available reference the Examiner could have reasonably been expected to find. The prior art at issue is prior art known only to the inventor.

    While the Supreme Court could lower the standard across the board for all types of prior art, it's more likely the Court will lower the standard only for prior art not available to the Examiner through printed publications or other publicly-available sources.

    For an excellent analysis, see this blog post: http://www.reexamlink.com/category/patent-litigation/
    (You have to scroll down to get to the i4i blog entries)

  • Due dilligence (Score:3)

    by currently_awake ( 1248758 ) on Saturday April 16, 2011 @10:23AM (#35839640)
    I would think the (US) patent office has a legal requirement to properly investigate patents before approval. If it can be shown they don't- then that should (morally should, I don't know about legally) reverse the process and require patent holders to prove the patent valid before they can enforce it. I believe in lawsuits they normally follow the most likely answer (preponderance of evidence) instead of proven beyond reasonable doubt. I suggest they keep that standard for patent validity.
    • They could but they have a chronic shortage of patent examiners and a lack of funding.

      • Re: (Score:1)

        by markmay ( 557326 )
        Lack of funding is just a political issue. In fact we should enact a substantial annual fee to maintain patent protection. It would make patents more expensive, reducing the nonsense patents and provide funding for the patent office and some even for general federal budget. If the America provides this short-term monopoly, we should at least get compensated well for it. Now we mainly tax income. Why do we want to discourage income? Instead we should start shifting the tax burden on to other things we

        • Re: (Score:2)

          by Grond ( 15515 )

          In fact we should enact a substantial annual fee to maintain patent protection.

          It's every 3.5 years (with a 6 month grace period) instead of annual, but the US already has patent maintenance fees. For regular patentees the maintenance fee schedule [uspto.gov] is $980 / $2480 / $4110. So over the life of a patent that's $7570, on top of the $330 filing fee, $540 search fee, $220 examination fee, and $1510 issue fee for a total of $10,170. For small entities (i.e. non-profits, individuals, and companies with = 500 employees) it's basically half that. Then there are more fees for long applicatio

        • IMHO the patent office should get a royalty. Anything sold which affirms patent protection should pay a percentage royalty like fee to the patent office to support it's ability to be an authority on the validity of the patent and the patent process. The more lucrative the patent, the more it needs the patent offices support. Not only would this support the patent office, it would encourage them to validate patents effectively as an injunction on a patent which is lucrative would mean no royalty payments fro

    • Re: (Score:2)

      by jopsen ( 885607 )
      How exactly do you prove that no prior art exists?
      That's an awful lot of "art"to go through...

      • the definition of "prior art" to the PTO is published academic documents, certain trade publications, and US registered Patents.... it's not really "ever used anywhere" and the Patent office and courts have routinely said "tough luck" to those not filing a patent to protect their invention when somebody else did first.

        • > the definition of "prior art" to the PTO is published academic documents, certain trade publications, and US registered Patents.... it's > not really "ever used anywhere" and the Patent office and courts have routinely said "tough luck" to those not filing a patent to
          > protect their invention when somebody else did first.

          No. That is not the definition of prior art. Review the MPEP. Read the cases. It is broader.

          Also, routinely perhaps, but that does not always mean unfairly. For example, the

    • the Patent Office is actually an extension of the President authorized by Congress. Patents are a fairly narrow executive power under the law, and there is nothing Constitutional that they have to be FAIR it just says Congress can make a law to grant them. Patents are basically limited "titles of nobility" with rights to EXCLUDE other people from doing something.

      I got a feeling this is going to be like when Lessing argued copyright needed to be more "fair" and the Supreme Court said ems the law, tough apple

  • Not likely to have especially broad implications. The factual question is whether the current standard of deference given to a patent should be maintained in the face of art submitted by a defendant, if that art was never considered by the patent office. Of course, 97% of patent cases never reach a jury, and relatively few of the remaining 3% turn on an invalidity analysis (as opposed to simple infringement/non-infringement).

    There's a good analysis of the likely impact of any Microsoft-favoring ruling ove

  • I suspect that many of the large LFOSS/GPL... foundations vet all their source code much better than the proprietary-pirates of pseudo-capitalist US, EU, RU, CN... economies.

    Ask your legal staff if http://www.libreoffice.org/ [libreoffice.org] and other LFOSS/GPL... products are less problematic legally. I am not a lawyer, but I suspect (if the lawyers are technology aware) the answer is YES!

  • # You're too shy shy, hush hush ... /#

  • This particular patent was Especially Invalid. It is basically a patent for using XML in a particular way to store a word processing document. XML is a generalized specification for storing any sort of data in a human readable manner. The patent was the equivalent of taking a general purpose automobile and patenting its ability to drive on 2-lane mountain roads. That you couldn't drive your car on 2-lane mountain roads without a license from (and payment to) the patent holder. No one would have ever accepte
  • Be happy everybody, if Microsoft WINS by buying the court... then there is no need for ANYONE to respect or care about Microsoft Patents, and therefore WE'LL HAVE THE RIGHT TO INFRINGE MICROSOFT PATENTS IN EVERY WAY WE WANT... as we will have LEGAL GROUND to do so...

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