The Supreme Court agreed today to hear a patent case that challenges the existing clear and convincing standard of review for proving invalidity of an issued patent, as to high. The outcome of this case is significant to all United States patents. The case is captioned Microsoft v. i4i. The question presented to the Supreme Court, which is what the Court will review, reads as follows: QUESTION PRESENTED:
The Patent Act provides that “[a] patent shall be presumed valid” and that “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” …
The Federal Circuit held below that Microsoft was required to prove its defense of invalidity … by “clear and convincing evidence,” even though the prior art on which the invalidity defense rests was not considered by the Patent and Trademark Office prior to the issuance of the asserted patent. The question presented is: Whether the court of appeals erred in holding that Microsoft’s invalidity defense must be proved by clear and convincing evidence. Expect a decision in this case with one year.
