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Microsoft downplays impact of possible Supreme Court patent ruling

Gregg Keizer, Computerworld | April 19, 2011
The attorney who argued Microsoft's case before the Supreme Court Monday downplayed the impact on patent law if the jurists rule for the company.

The attorney who argued Microsoft's case before the Supreme Court Monday downplayed the impact on patent law if the jurists rule for the company.

"Microsoft has no interest in dismantling the patent system," said Thomas Hungar, of the Washington D.C. law firm Gibson, Dunn & Crutcher, who represented Microsoft at an oral hearing before the court. "The changes would not be dramatic, and it certainly would not be the end of the patent system that some are claiming."

Hungar compared predictions of dire consequences to "the sky is falling" complaints.

"That's plainly untrue," Hungar said.

Hungar, who spoke after the hour-long Q&A with seven of the nine Justices, pointed out that Microsoft has a large patent portfolio and sometimes relies on lawsuits to enforce those patents.

"Microsoft is one of the leading recipients of patents, and both is sued and sues to enforce patents," Hungar said. "Microsoft wants the patent system strengthened, and the patent playing field fair and balanced."

From Microsoft's point of view, that can come only if the Supreme Court rules in its favor -- a decision is expected by the end of June -- and lowers the burden-of-proof bar at trial.

Under current practice, an accused infringer must show "clear and convincing evidence" that the patent is invalid to escape with a win. Microsoft has suggested that the burden of proof should be lowered to "a preponderance of the evidence."

Changing the standard won't cripple patent law or impact all patents. Instead, only patents that should not have been granted in the first place would be affected, Hungar argued.

That's the heart of Microsoft's case. The company has said that the patent held by Canadian company i4i should not have been issued because the technology had been used in a product sold more than a year before the U.S. Patent and Trademark Office awarded the patent.

"Allowing a bad patent to stand simply because it's propped up by the wrong courtroom standard will in fact undermine the system," said the chief counsels for Microsoft, Apple, Cisco and Facebook in a joint statement issued yesterday.

"The use of this heightened standard in these circumstances creates courtroom conditions that protect bad patents and, in some cases, make it easy to game the system," the companies said. "Ultimately, the harm extends to our national climate for innovation, and the ability for great inventions to support great businesses."

Apple, Cisco, EMC, Facebook, Google and others were among the large technology companies that filed amicus curiae, or "friends of the court," briefs in support of Microsoft's position.

 

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