EFF Urges Supreme Court to Crack Down on Bad Patents

Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, February 02, 2011

Contact:

Michael Barclay
   Fellow
   Electronic Frontier Foundation
   michael@eff.org
   +1 415 436-9333 x138

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org
   +1 415 436-9333 x112

EFF Urges Supreme Court to Crack Down on Bad Patents

Current Standards to Invalidate Patents Impede Software
Innovators

San Francisco - The Electronic Frontier Foundation (EFF),
joined by Public Knowledge and the Apache Software
Foundation, urged the U.S. Supreme Court Tuesday to make it
easier to invalidate bad patents -- a decision that would
benefit software innovators both large and small.

In an amicus brief filed in Microsoft v. i4i, EFF argues
that the existing high standard of proof for invalidating a
patent in federal court unfairly gives the owners of bad
patents the upper hand.  Currently, when a defendant is
accused of infringing a patent, the Federal Circuit wants
to see "clear and convincing" evidence that that patent is
illegitimate and the case against it unfounded.  This is in
contrast to the standard of proof for most civil cases,
which is a "preponderance of the evidence" -- or a showing
that more likely than not the allegations are true.  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.

"With the complex technical issues at play in software
patent infringement suits, plaintiffs often argue that the
original source code is a necessary part of 'clear and
convincing' evidence," said EFF Fellow Michael Barclay.
"But the law should not require this standard of proof.
Instead, software innovators are put at an unfair
disadvantage, and bad patents are upheld in court."

Microsoft v. i4i began when i4i sued Microsoft for patent
infringement, claiming that its patent covered a Microsoft
Word feature that allowed for editing documents with XML.
Microsoft argued that i4i's patent was invalid because
similar features were included in another product sold more
than a year before the patent application was filed.  But
the Federal Circuit applied the "clear and convincing"
standard and rejected Microsoft's argument.

"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."

Microsoft v. i4i will be argued in April, and a decision is
expected by June.

For the full amicus brief:
https://www.eff.org/files/filenode/microsoft_v_i4i/234530...

For this release:
https://www.eff.org/press/archives/2011/02/01

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at https://www.eff.org/


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