On November 29, 2010, the Supreme Court granted certiorari to the third patent law case in the current term by accepting Microsoft’s petition in Microsoft Corp. v. i4i L.P. Microsoft is appealing a $290 million verdict from the Eastern District of Texas concerning infringement of i4i’s U.S. Patent No. 5,787,449 by Microsoft’s Word 2003 and 2007 software programs. Microsoft is challenging the clear and convincing evidence standard that has been associated with the invalidity defense under 35 U.S.C. § 282 since the Federal Circuit’s 1984 decision in American Hoist & Derrick Co. v. Sowa & Sons, Inc. Microsoft contends that the correct evidentiary standard should be “preponderance of the evidence” when an invalidity defense relies on prior art that was not originally before the USPTO. The Court’s decision in this case could significantly impact the strength of any patent owner’s case if the burden to prove invalidity is lowered.
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