Red Hat's VP and assistant general counsel Rob Tiller writes
about the amicus
brief filed with the US Supreme Court by Red Hat and a diverse group of other companies in the Microsoft v. i4i case. "Once a patent is inappropriately granted, it is possible, in theory, for a party accused of infringing it to show that it is invalid. In practice, this is quite difficult. When software patents are at issue, the technical issues are often complicated and difficult for a lay jury to understand. Jurors frequently mistakenly assume that the patent examination process was careful and exhaustive, and so have a tendency to assume that a patent must be valid. On top of all this potential confusion, jurors are instructed under current rules that they may only invalidate a patent if they find the evidence for invalidity clear and convincing. Even when there's strong evidence that a patent should never have been granted, it's difficult for lay juries to conclude that the technical issues are clear.
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