The Electronic Frontier Foundation, Public Knowledge and the Apache Software Foundation siding with Microsoft in a long-running legal battle have joined forces in urging the United States Supreme Court to make it easier for juries to invalidate software patents.
The groups argue that the existing standard of proof courts require "clear and convincing" evidence gives the holders of suspect patents an unfair advantage that does not exist in the typical civil lawsuit, where the more lenient standard of a "preponderance of the evidence" prevails. EFF filed an amicus brief in the case of Microsoft v. i4i, a dispute involving XML/SGML editors in some versions of Microsoft Word.
A federal court in Texas sided with i4i in 2009 and ordered Microsoft to pay that company $240 million. The Supreme Court agreed to take the case last November.
EFF writes in a press release: "In software cases, 'clear and convincing' evidence of patent invalidity can be hard to come by, as source code is constantly changing over the life of a product and much of the original code is often unavailable. This is a particular problem with free and open source software, as the collaborative nature of the projects make documentation even harder."
"Software innovators and the free and open source software community play an important role in our economy, and litigation like this threatens to chill lively competition and new products from software companies both big and small," said EFF Staff Attorney Julie Samuels. "We're asking the Supreme Court to help ensure that patent law serves the public interest."
In addition to the Supreme Court's signal that it would hear the case, the United States Patent and Trademark Office also issued a ruling in November and it came down on the side of i4i. Loudon Owen, chairman of i4i, said in a press release at the time: "The PTO has again affirmed the validity of our patent by denying Microsoft's request for a second reexamination. The attack on patent holders and the adverse implications from the standard Microsoft is proposing is unprecedented and would deal a devastating blow to any US patent holder, large or small. Naturally, the proposed standard would be particularly destructive to the value of patents for inventors, technology pioneers and entrepreneurial companies that don't have the resources of Microsoft and other giants."
Owen added that he is "confident" the nation's highest court will rule in favor of his company and retain the more lenient standard of proof.