Will SCOTUS Rewrite the Standard for Patent Invalidity?


The justices of the Supreme Court, in their questioning of Microsoft Corp. and i4i Limited Partnership attorneys, revealed frustration with the proliferation of bad patents and uncertainty over what to do about the problem. The outcome of the case, that suggests, is anything but certain.

The issue the Supreme Court must decide is the standard of evidence to be applied when a defendant in a patent infringement lawsuit raises the defense that the patent was invalid and therefore unenforceable. The U.S. Federal Circuit Court of Appeals has consistently held that the defense requires proof of invalidity by “clear and convincing evidence.” In last week’s argument, Microsoft argued that the correct standard is the one more commonly used in civil trials, the more lenient “preponderance of the evidence.”

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