Sadly, today the Supreme Court affirmed the Federal Circuit in Microsoft Corp. v. i4i Limited Partnership. My previous posts about the case are here, here, here, here and here.
The Court affirmed the Federal Circuit's rule that patents must be proven invalid by clear and convincing evidence. The Court did say that in circumstances where the evidence before the jury was not before the Patent Office, "a jury instruction on the effect of new evidence can, and when requested, most often should be given." Slip opinion at 17-18. Thus, "[w]hen warranted, the jury may be instructed to consider that it has heard evidence that the PTO had no opportunity to evaluate before granting the patent." The Federal Circuit's decision in z4 Technologies, Inc. v. Microsoft Corp., 507 F. 3d 1340, 1354-55 (Fed. Cir. 2007) had rejected a similar instruction, and is now probably incorrect.
I'm quite pleased that the Justices defied pundits' predictions and issued this ruling -- I always thought i4i had the stronger arguments, not to mention many years of tradition and precedent on its side. Moreover, I think there's a decent argument that a strong presumption of validity is indicated in the Constitution; and, on a policy note, in countries with weaker patent rights, there lurks always the danger that well-funded entities can use that lesser standard to bankrupt patentees, or even to deprive them of their IP altogether. Thank you, SCOTUS; well done.
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