Microsoft pitches for invalid patents

WASHINGTON, April 18 (UPI) -- The U.S. Supreme Court heard argument Monday on a $290 million patent infringement verdict against software giant Microsoft Corp.

Since Chief Justice John Roberts has owned Microsoft stock in the past and has withdrawn from the case, Justice Antonin Scalia presided as the next senior justice.

Toronto-based i4i Limited Partnership owns the patent on editing custom XML, a computer language. The company sued Redmond, Wash.-based Microsoft, alleging the XML editor in some versions of Microsoft Word infringed on the patent.

A federal jury in Texas rejected Microsoft's argument that the patent was invalid and awarded the patent-holder $200 million in damages.

The U.S. appeals court in Washington upheld the jury's verdict and award, but added the verdict "does not affect copies of Word sold or licensed before the injunction (against its sale) goes into effect. Thus, users who bought or licensed Word before the injunction becomes effective will still be able to use the infringing custom XML editor and receive technical support from Microsoft. After its effective date, the injunction prohibits Microsoft from selling, offering to sell, importing or using copies of Word with the infringing custom XML editor. Microsoft is also prohibited from instructing or assisting new customers in the custom XML editor's use."

Microsoft then asked the U.S. Supreme Court for review.

At issue in the case is what level of proof of invalidity a patent challenger must offer -- "clear and convincing evidence," or some lesser showing, such as the "preponderance of the evidence."

Microsoft would rather have a lower threshold -- preponderance of the evidence -- and says shaky copyrights should be scrutinized more aggressively, while i4i wants to keep the present higher standard.

IPWatchdog reported the justices seemed skeptical of argument that would overrule precedent supporting a heightened level of scrutiny.

But Justice Samuel Alito said the federal statute puts the burden of establishing the invalidity of a patent on challengers, the report said. "If Congress wanted to impose a clear and convincing burden," Alito said, "why in the world would they not have said that expressly" in the statute?"

The justices, minus Roberts, should hand down a decision before recessing for the summer.