Amici split in Supreme Court battle over patent invalidity

24 March 2011

Eileen McDermott, New York

Friends of the court have filed 48 briefs with the US Supreme Court in i4i v Microsoft, which is set to be argued on April 18

The case could change the standard for proving patent invalidity in the US. Microsoft is asking the Supreme Court to change the standard to a so-called preponderance of the evidence analysis, rather than the present clear-and-convincing test.

Of the 48 briefs, 17 support Microsoft, while 24 – including the US government – are supporting i4i.

Of the remaining seven, two (IBM and AIPLA) support a clear and convincing standard, two (FICPI and Teva) a preponderance of the evidence standard, two (Apple/Intel and the IP section of the District of Columbia Bar Association) a dual standard based on whether or not the prior art has been examined by the USPTO. One individual patent lawyer had no opinion.

Below are highlights from some of the briefs:

Former USPTO directors and commissioners Gerald Mossinghoff, Donald Quigg, Harry Manbeck, Bruce A Lehman, Q Todd Dickinson and Nicholas Godici (for i4i)

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