back to article Microsoft's Word fight opens in US Supreme Court

Microsoft has tried to persuade judges in America's top court that those defending against patent litigation cases should be held to a lower burden of proof than at present. A lawyer representing Microsoft at the Supreme Court told judges on Monday they should reject the long-held need for a defendant in patent-infringement …


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  1. Antoinette Lacroix

    Really ?

    ""they should reject the long-held need for a defendant in patent-infringement cases to prove by clear and convincing evidence that a plaintiff's patent is invalid,""

    Only in this case or in general from now on? If the latter, they might want to rethink that.

  2. Anonymous Coward

    Wrong way...

    Microsoft should know its congress that makes the laws, not the supreme court. Surely they can afford to lobby congress to get what they want, like everyone else? Depending on a court decision is a crap shoot. Buying congress is a sure thing.

    1. Anonymous Coward
      Anonymous Coward

      Looks like Rip Van AC just woke up from a very, very, very, very, very long nap.

      It's been decades now that SCOTUS has been making laws and claiming it is was just "interpreting" them (e.g Roe vs. Wade, Kelo vs. City of New London, etc.)

  3. The BigYin

    I MS win...

    ...they may have just pointed the RPG at their own feet.

    If the burden of proof was lowered, wouldn't that mean that people would find it easier to go after MS's patents?

  4. Someone Else Silver badge

    What? WHAT?!?

    Something vaguely resembling ethics on the SCOTUS?

    Antonin, are you LISTENING?!?

  5. Dazed and Confused

    bet they'd argue something different

    when it's a M$ patent that is in dispute

  6. heyrick Silver badge

    USPO? Expert agency?

    You're kidding, right?

  7. Ian Michael Gumby Silver badge

    Slippery Slope argument by Microsoft.

    While I think all Software Patents and Business Process patents should be tossed, Microsoft is arguing that if/when they get sued for violating someone's patent that they can then argue that the patent is invalid and try and invalidate the patent as part of their defense.

    This is dangerous because it would mean that anyone can violate a patent at will and when the patent holder sues, they are on the defensive to prove that their patents are indeed valid. This way, the company with the deeper pocket wins.

    Clearly in Microsoft's, Google's, IBM's, etc... favor.

    1. Ed Deckard

      Inevitable automotive analogy

      If I accuse you of stealing my car, you should be able to ask that I prove the vehicle was mine, shouldn't you?

      1. Pascal Monett Silver badge
        Thumb Down

        Re:prove the vehicle was mine

        I should not have to prove that to you but to the police, which is the case.

      2. Ian Michael Gumby Silver badge

        @Ed Deckard

        I'm afraid you don't understand what Microsoft is asking...

        Suppose you own a patent.

        I violate your patent and you then go to sue me.

        For you to even file a lawsuit, you have to demonstrate that you are indeed the patent holder.

        Without this your suit will be tossed. You then make your claim of alleged patent infringement.

        What Microsoft is asking for is that they want to argue that , while you were granted a patent, that the patent which was granted shouldn't have been granted in the first place, therefore they are innocent of violating your patent.

        What this does is place the burden of proof on you to not only show that I infringed on your patent, but then to defend your rights to the patent in the first place. So as the plaintiff you now have the extra burden to defend your patent.

        This makes it more expensive for you to sue anyone defending your IP.

        It also means that its easier to defend against alleged patent violations.

        Going back to your analogy...

        It doesn't really work. It would be saying that you didn't really steal my car because I don't really own the car because I have a car loan. And even that fails.

        1. Ed Deckard

          I guess my point might have gone a bit over your head

          If I sue you for patent infringement, I'm claiming I own a particular idea, and that you're using it without my permission.

          Your potential defense is (obviously) that

          a) You're not actually using the idea in question, (your method is not covered by my patent) or

          b) That you actually have my permission (it was included in some licensing agreement, etc and I'm just confused or being a jerk) or

          c) I don't actually own the idea (my patent is invalid).

          Now, it seems pretty self-evident to me that if I don't actually own the idea (my patent is invalid) you should be able to point that out in court.

          Now, you make the argument that by allowing you to claim my patent is invalid in court, you'd be placing the burden of proof on me to prove that my patent is valid. This is the common, natural way in any other kind of lawsuit - the plaintiff (the person making the claim) is supposed to prove their claim is true. I don't see why patent holders should be privileged by the assumptions that they were truthful to the USPTO, and that said office conscientiously only issues absolutely watertight patents. That last one in particular is utterly laughable.

          You also claim that this would make suing people for patent infringement more expensive and defense easier, to which I say, that's a huge point in favor of my argument.

  8. Cunningly Linguistic

    You what?!!!

    "an expert agency: the US Patent Office"

    Surely you jest?

  9. Graham Marsden
    Gates Horns

    I think what they meant was...

    ... "Microsoft should be held to a lower burden of proof than anyone else, but only when *they* are the defendants..."

  10. spodula

    Ah Hark, Does thouest hear the bright tones of a troll under yonder bridge?

    I think you missed a word out there:

    "...reported to have said the software giant it trying to overturn the decisions of an expert agency: the US Patent Office"

    should be

    "...reported to have said the software giant it trying to overturn the decisions of an expert agency and the US Patent Office"

    Cos we all know that the US patent agency cant be called an expert.

  11. Anonymous Coward
    Anonymous Coward


    Got to say I agree with MS on this issue, no matter how much it hurts to say it.

    Patent infringment cases are arse about face in legal terms. If you are prosecuted for comitting a crime the burden of proof is on the prosecution, the same should be true in civil cases like this too.

    I suspect the stupid way this works is responsible for the number of cases that are overturned on appeal. Of course this means lawyers make more money because they get to go to court twice instead of once, so they will be happy. But the people who pay the lawyers should be less than happy. Especially when they are in the position of thinking "woohoo! we've won a two million buck patent settlement, what can we spend it on.?" Only to find out a few months down the line that it's been overturned on appeal and they also have to pay the opposition's million dollar legal fees.

  12. Gobhicks

    For the record...

    The issue in this case is about what the standard of proof should be when a defendant argues that a patent is invalid on the basis of information that was not available to the Patent Office when it decided to grant the patent. A granted patent is presumed to be valid unless the defendant can make a convincing case that it is not. If you are arguing that the patent is invalid because the Patent Office got it wrong on the facts that were actually available to them you have a much tougher job than if you are arguing that they got it wrong because they were not in possession of the most relevant facts.

    M$'s patent portfolio is primarily defensive - they rarely sue other parties. They have much more to lose from poor quality patents being asserted against them than from their own patents being weakened.

    1. Andy Jones


      "M$'s patent portfolio is primarily defensive - they rarely sue other parties. They have much more to lose from poor quality patents being asserted against them than from their own patents being weakened."

      Their patent portfolio is for their offensive and to be used as leverage against other companies. That is why they are threatening lots of companies and then signing deals at the last minute with the part of the deals being secret. The non-secret part of the deals always involve them getting access to other companies patent portfolio.

      Their tactic is clear. They threaten companies with patent infringement for the soul purpose of getting access to another companies patents for either free or for a massive discount than if they approached the company through the reasonable channels.

      I don't know why people say Microsoft do not sue other parties. Ok, they don't sue that many because it never gets that far. But their patents are definitely not used defensively!

      1. Gobhicks

        Best form of defence...?

        There's certainly plenty of quibble-room here, but using a large patent portfolio for commercial leverage is at least partly a defensive strategy, even when done, um, "proactively". Depends how big a chessboard you want to look at, maybe?

      2. Anonymous Coward

        Wrong 2.

        Ever heard of the saying: The best defense is a strong offense?

  13. Anonymous Coward

    a quote from yesteryear

    If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can.

    A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors

  14. Magnus_Pym

    Just let me...

    ... fix that.

    A future startup in the US with no patents of its own will be forced to pay whatever price the giants choose to impose. They will, therefore, choose to start up outside the US and wait until they have established a position that they can defend before attempting to sell there.

  15. James Pickett
    Gates Horns


    "a lower burden of proof "

    If they're arguing for that, it's a tacit admission that they have lost the argument. They've been dining out on other people's IP for years, so a reversal of fortune is long overdue, IMHO.

  16. copsewood

    not normally a supporter of Microsoft

    I think Microsoft are partly right on this one. It's in the vested interests of the Patent Office and patent lawyers to allow as many patents through as possible and for these to be worded as obscurely as possible. Given that this is equivalent to printing money, wouldn't anyone who has this choice print as much as possible ? The more obscure and convoluted the wording, the more hours the patent lawyers can bill clients for writing and litigating them.

    This leads to millions of patents nearly all of them unjustified. I'm a software engineering educator. If patents did the job they were originally intended to do reading these would be compulsory education for an engineer. As it is, patents are completely useless for engineering education.

    Because of the extortionate cost of litigating a patent, being at the receiving end of a patent litigation demand is equivalent to a visit from Mafia demanding protection money on a small software business. If they fight they die bankrupt, if they want to survive they have to agree to negotiate payment regardless of the merits of the patent in question, if the party making the demand is legally better funded.

    Microsoft and similar large technology corps whose business is selling products generally have more to lose than to win from patents. They can't walk away from these assets any more than any other assets. Engaging in the cost of amassing a large patent portfolio is a bit like having nuclear weapons. These are expensive and of little use, but you can't afford your adversaries to have these if you don't. Even worse, Microsoft has to litigate the patents they own when they can, because otherwise patent litigation would cause a greater loss than it otherwise would.

    Because Microsoft shareholders wouldn't understand management lobbying against software patents in general, management has to try to lobby to reduce the costs of patent litigation. Of course in any sane country patents would not apply to software at all.

  17. Yet Another Anonymous coward Silver badge

    Problem in the US is juries

    So your own experts decided an invention was novel, so did your patent agent and the experts at the USPTO. But now when you try and stop a huge US company stealing your idea it's all decided by a jury in East Texas.

    I'm not familiar with the jury selection process in East Texas, perhaps it does select a jury where they all have a masters in engineering and no inclination to rule in favour of American jobs. But personally I would prefer a tribunal in a German court where the judge is also an engineer.

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