Friday, June 10, 2011

Odd spin on Microsoft/i4i outcome

Within a piece in ComputerWorld:

The most significant outcome of the case, said Young, was language in the opinion authored by Associate Justice Sonia Sotomayor that spelled out how patent case juries can be instructed. In her opinion, Sotomayor said that juries can be told to consider evidence that the U.S. Patent and Trademark Office [USPTO] did not evaluate before granting a patent.

That was Microsoft's contention during its appeals: That the USPTO's investigators overlooked or disregarded evidence that other patents preceded i4i's, and thus the Canadian company's patent should be ruled invalid.

Sotomayor's opinion expressly said that juries could be instructed to weigh such failings of the USPTO.

Not clear that the Supreme Court made a change in the law as to the consideration of prior art that was not before the Patent Office. The issue was about the "clear and convincing" standard, and Microsoft lost.

Of --"Microsoft can now say to Congress that 'The ball is in your court,'" --, the problem is that there are a lot of stakeholders, especially in the pharma world, who back the current evidentiary standard. The ball was always in Congress' court, and Microsoft couldn't get any traction there in the first place. Going back to Congress is "same old, same old."


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